California Employment Lawyers Blog

In yesterday's blog, our Anaheim, California employment attorneys discussed California Representative Linda Sánchez's (D-CA) campaign to eliminate the FLSA exclusion of home care workers by introducing the Direct Care Workforce Empowerment Act into the House of Representatives this week.

According to Sánchez, direct home care workers have never received employment protected by the Fair Labor Standards Act (FLSA), the act that provides workers access to minimum wage and overtime pay. Sánchez believes that all hard-working Americans should be treated equally, and by introducing this act, Sánchez hopes to correct the current injustice for vulnerable home care workers, and at the same time to help improve home care services for disabled people and seniors.

Last year, Representative Sánchez, who is co-chair of the Congressional Labor and Working Families Caucus, urged Hilda Solis, U.S. Secretary of Labor, to amend the FLSA regulations so that direct care workers could be eligible to receive minimum wage and overtime payment benefits. The DOL, as we reported yesterday, included the issue on the a regulatory list of items to address, yet has not formed a new rule.

Sánchez claims that direct-care workers are one of the largest workforces in the nation, and are quickly expanding, acting as a prominent role in economic growth and the creation of jobs. The act would reportedly ensure that these workers are rewarded for their hard work, as other working Americans are.

Continue reading "California Rep. Sánchez Introduces the Direct Care Workforce Empowerment Act" »

In recent news that our California Wage and Hour Attorneys have been following, the Department of Labor (DOL) claimed that it will be another fifteen months before they propose changes to the pay rules and regulations for home care workers, workers who provide companionship services and who are not covered currently by the federal minimum wage and overtime pay protections.

As we reported in a recent blog, the Fair Labor Standards Act (FLSA) sets employment standards for minimum wage and overtime compensation, requiring employers to compensate covered employees who are non-exempt from the federal minimum wage and overtime pay, which is one and one-half-times times the minimum wage for each hour worked. The Act is administered by the U.S. Department of Labor, and the FLSA exemptions are narrowly interpreted by the Labor Commissioner, to avoid wage and hour violations.

In April, the DOL reportedly announced its plan to revise the FLSA's recordkeeping regulations to require employers to provide clarity and transparency in an effort to promote greater compliance by employers, and to increase employment awareness among workers, so that they have a clear understanding of their status as employees or independent contractors, and their entitlement to minimum wage and overtime pay.

The DOL has also proposed updating the language for live-in domestic employees and employees who are considered to be industrial home care workers under FLSA, to modernize recordkeeping requirements for these employees, and consider other methods to replace the current mandatory and required records for employees who work under such live-in arrangements, while still keeping a clear record of all hours worked.

Continue reading "DOL Proposes FLSA Wage Regulation Updates for Home Care Workers" »

In a blog from earlier this week, our Carson, California Wage and Hour Attorneys discussed a recent U.S. Department of Labor (DOL) Wage and Hour Division initiative to investigate low wage industries for federal wage and hour violations. If the DOL performs an audit, businesses are examined to ensure employers are complying with the Fair Labor Standards Act (FSLA), and if employer violations are found, businesses are shown how to implement corrective actions to protect employees according to FSLA law.

This week, the DOL is reportedly investigating new allegations of wage and hour violations at the Massachusetts pizza chain, Upper Crust, LLC. Last year, after employees complained to the wage and hour division, the DOL reportedly ordered Upper Crust to pay over $341,000 in a settlement, to around 121 workers, after an investigation found that the low wage workers were not compensated for overtime.

The investigation, which looked at the Upper Crust's pay practices from 2007 to 2009, found that hourly workers were paid for straight time, although many worked more than 40-hours in a week.

Last week two former cooks for the pizza chain filed a lawsuit claiming that Upper Crust took back the overtime settlement payments, ordered by the DOL, by deducting the compensation from their paychecks every week. A former manager reportedly told investigators that employees who received the overtime settlements last year were told that if they kept the checks they would have to quit their jobs, and they could only keep their jobs if they gave back the settlement money by taking a slash in pay.

The manager claimed that the most of the employees were Brazilian immigrants and regularly worked 70 to 80 hours in a single week. He told investigators that after the settlement, the Upper Crust owners engaged in employee misclassification, by changing employee status from hourly staff to salaried employees, so the company could avoid paying overtime, which is against the law.

Continue reading "Pizza Chain Investigated by DOL for Wage and Hour Violation Allegations" »

The U.S. Department of Labor (DOL) has recently labeled the hospitality industry along with other low wage industries as "high-risk" in regard to the frequency of federal wage and hour law violations against vulnerable workers. As a result, the DOL has planned an initiative that will target these industries across the country, with DOL Wage and Hour Division audits and investigations.

According to the DOL Wage and Hour Division (WHD) fact sheet, in an audit, the division chooses certain types of low wage industries for investigations because of the high rates of violations, the employment of vulnerable workers, as well as the quick changes in the growth or decline of the businesses. The DOL reports that certain businesses are targeted for investigations in order to protect employee rights, by improving employer compliance with federal laws, like the Fair Labor Standards Act (FLSA), requiring proper overtime and minimum wage payment.

In a DOL Wage and Hour Division investigation:

• An employer's records are examined in order to determine the exact exemptions or laws that apply.
• The company's payroll and time records are examined, to make sure that the employer is not violating any wage and hour laws under the FLSA.
• Certain employees are interviewed, to verify the employer's payroll, examine the classification of employees, and ensure the legality of working minors.
• When the investigations are completed, the employer is reportedly informed on the extent of the employment violations, and instructed on how to implement corrective actions. If the employer has violated overtime or minimum wage laws, and back wages are owed to workers, the WHD investigator will ask that the correct amount of back wages are paid to the employees.

Continue reading "DOL Wage and Hour Division Audits for Low Wage Industry Violations" »

Our Anaheim, California Wage and Hour Lawyers have been following the recent press release by the U.S. Department of Labor Wage and Hour Division, that details a new provision covering working mothers and breastfeeding in the Patient Protection and Affordable Care Act (PPACA). The PPACA was recently signed into law in March of this year, and amends Section 7 of the Fair Labor Standards Act (FLSA).

According to the federal provision, employers must provide mothers who are nursing with both the space and the time to lactate in the workplace. The law states that any time an employee needs to breastfeed, for one year after the birth of the child, the working mothers must receive a reasonable length of unpaid break time, as well as a private setting other than a bathroom for their breastfeeding needs.

The DOL Wage and Hour Division fact sheet states that employers are required, under law, to provide breaks for nursing mothers that are reasonable amounts of time, as frequently as needed, with the duration of each break varying, in a functional space. Even if seemingly private, bathrooms are not permissible spaces under the Act. By law, the space must be available when needed, and must be private and protected from public or colleague intrusion.

The FLSA break time requirement does not preempt any State laws that provide more employee protection, including compensated break time for employees who are exempt, or any breastfeeding time provided after the child's first year. As our attorneys reported in a recent blog, since 2002, By law, California employers must provide reasonable break time for California employees to breastfeed their children, as well as lactation accommodation. A mother also has the right to breastfeed her child in any public or private location.

Continue reading "FLSA Provision Covering Break Time for Nursing Mothers" »

Our Riverside, California Employment Lawyers have been following the U.S. Department of Labor's (DOL) recent crackdown on labor violations across the country, to ensure that employees are receiving the appropriate wages that they have earned and are entitled to under federal law. As we reported in a recent blog, Labor Secretary Hilda L. Solis announced this year that when employers don't pay employees their overtime wages, the DOL won't hesitate to enforce the law.

In keeping its promise, the DOL recently filed a wage and hour lawsuit against Sterling Caterers & Restaurant, after an investigation found that the New York company was violating the Fair Labor Standards Act (FLSA), by not paying 14 employees according to minimum wage and overtime laws, as well as failing to keep accurate records to document the employment activity.

The lawsuit, filed by the DOL, claimed that the catering employees were owed back wages in the amount of $61,667, over $30,000 in liquidated damages, and over $600 in post-judgment interest. The New York catering company agreed to pay the $93,1100 this week, to settle the wage and hour lawsuit.

Under FLSA law, employees should be paid no less than the federal minimum wage for every hour worked, which is currently $7.25 per hour. Workers are also legally required to be compensated time and one-half their regular pay rate when working over 40 hours in a single week. Employers are required by law to maintain accurate records or all employee wages, hours worked, as well as other conditions of employment.

In Riverside, California and throughout Southern California, our Labor & Employment Attorneys at HOWARD | NASSIRI, PC know how to find the best solution to your wage and hour issue. Contact us today.

Bethpage Caterers Settle Federal Labor Suit for $93K, Long Island Press.com, July 13, 2010

Related Web Resources:

"Exempt" vs. "Non Exempt" in the California Workplace, California Employment Lawyers Blog, April 15, 2010

United States Department of Labor

U.S. Department of Labor: Wage and Hour Division (WHD), Fair Labor Standards Act (FLSA)

Several former employees of an auto plant that was shut down recently in California, sued the plant and its parent company, Toyota Motor Corp. yesterday, stating that they were denied access to fair and comprehensive severance agreements, because employment-sustained injuries kept the employees from working prior to the closure.

The New United Motor Manufacturing Inc., or Nummi, was established in 1984 as a business venture between Toyota and General Motors, in Freemont, California. The lawsuit claims that Nummi and Toyota Motor Corp., allegedly engaged in discrimination against disabled and injured workers because they were classified as ineligible to receive comprehensive severance packages if they weren't consistently working for the six-month period prior to the close of the factory.

According to the lawsuit, many Toyota car and truck assembly workers, who were laid-off, but worked consistently prior to the plant's closing, received a monetary settlement of around $21,175 each, plus a bonus payment that averaged to around $32,000 depending on the number of years they dedicated to the plant.

These agreements were reportedly not available, or were only partially available to workers on leave for disability from the plant, and unable to work prior to the plant closure. This reportedly constituted a major loss for those disabled workers, some of whom had worked at the plant for 25 years, and had been injured within the final six months. Many funds for retraining and employment services were also not available to these workers.

Continue reading "Workers Sue Toyota for Disability Discrimination and Full Severance" »

In a blog from last month, our California Employment Attorneys discussed a recent initiative introduced by the U.S. Department of Labor (DOL), to enforce child labor laws by implementing stronger penalties against employers who violate child labor laws. Secretary of Labor Hilda Solis stated that work involving children must not interfere with school, must be appropriate to the age of the child, and must be conducted in a healthy and safe work environment, as young workers are one of the DOL's top priorities.

In a recent lawsuit settlement announced this week, a Baltimore County McDonald's franchise owner must pay around $30,500 in child labor penalties and back wages as a result of breaking child labor laws and failing to pay young employees for overtime hours.

After an investigation by the U.S. Department of Labor's Wage and Hour Division, the McDonald's franchise was found to be violating the Fair Labor Standards Act's, (FLSA) child labor laws, with 14- and 15-year-old McDonalds employees working longer than the legal limit of three hours on a school day, and also working late into evenings.

The FLSA states that individuals who are age 14- and 15-years-old may not work earlier than 7am in the morning, or later than 7pm in the evening, unless they are working in the summer, from June 1 through Labor Day, in which case they can work until 9pm. Workers who are under the age of 16 are only able to legally work limited after-school hours, and the types of jobs and hours that 14- and 15-year-olds can work are also restricted by FLSA laws.

Continue reading "DOL Fines McDonald's Franchise Owner for Overtime and Child Labor Violations" »

In recent California employment law news, a class action discrimination lawsuit has been filed against 24 Hour Fitness, by the company's workers, who claim to have been victims of employment discrimination based on national origin, color, race and gender.

According to the class action lawsuit, 24 Hour Fitness has discriminated against female and minority workers on a widespread basis, in regard to equal pay, and promotions to management positions--violating California Business and Profession codes, as well as the California Fair Employment and Housing Act (FEHA).

Raoul Fulcher, the lead plaintiff in the lawsuit, claims that he consistently not promoted to a higher position because of his race, African-American. Another plaintiff claimed that as a Latino, he was hired to be a membership counselor and reach out to the Spanish-speaking community in his job, yet he could never get the promotion he deserved because of his race.

The class-action lawsuit demands that the fitness chain end the patterns of discriminatory practices against women and minorities that are alleged in the suit, and provide back pay and damages to employees who have been discriminated against.

Continue reading "Employees Hit 24 Hour Fitness with Class Action Discrimination Lawsuit" »

In recent news, Foster Farms, the poultry producer and reportedly one of the country's largest private employers, was sued by a former employee for pregnancy discrimination and wrongful termination. As our California employment attorneys reported in a previous blog, pregnancy discrimination is one of the fastest growing forms of discrimination in the workplace, according to the U.S. Equal Employment Opportunity Commission (EEOC).

According to the lawsuit, Sara Supple a former full-time associate programmer analyst for manufacturing, claims that after going to the Human Resources department on May 5, to obtain benefit information for pregnancy within the company, she was told by officials in the HR office to come back at a later date, when her pregnancy had progressed.

Supple claims that a few hours after her meeting with the HR representative to discuss her pregnancy, she was brought back into the HR office, where the same representative from HR and her immediate manager confronted her about time card violations that she had no prior knowledge of. She was suspended from her job immediately until they investigated the issue further.

On May 11, Supple was brought back into work and told that her employment with Foster Farms was terminated based on the information that they revealed during the investigation. According to Supple, she never received a warning for any time card issues. She believes that after telling the HR representative that she was pregnant, she was accused of made up time card violations, and was subsequently never given the chance to defend herself against the allegations, as her employment was immediately terminated.

Continue reading " Foster Farms Sued for Pregnancy Discrimination and Wrongful Termination" »

According to a recent wage and hour ruling that our Riverside, California employment attorneys have been following, sales representatives of Novartis AG, are supported by federal, New York state, and California state wage and hour laws that require overtime compensation.

In a United States Court of Appeals ruling in New York last week, pharmaceutical "sales representatives," who have the responsibility of visiting doctor's offices to give drug samples to doctors, and educate them with scripted pharmaceutical information describing the drugs, are entitled to overtime payment.

In the decision, the U.S. Court of Appeals overturned a 2009 district court ruling, and claimed that the Novartis representatives are not subject to federal and state "outside salesman" or "administrative" exemptions to overtime compensation. In its opinion, the three-judge panel held that representatives are not outside salesman, and not exempt from the Fair Labor Standards Act (FSLA) or state laws, as the employees were not actually engaged in "selling" the drugs.

After the December decision of last year, the sales representatives were reportedly supported by the U.S. Department of Labor (DOL), as the DOL filed an amicus appeal brief. The court decision from last week relied on the DOL laws defining "outside salesman" and "administrative" employees, and ruled that because the employees were controlled and lacked the "independent judgment" in their duties necessary to make them classify as administrative employees, they were not exempt.

Continue reading "U.S. Appeals Court Rules Novartis Salespeople Covered by FLSA Overtime Law " »

In yesterday's blog, our Southern California wage and hour attorneys discussed a recent case of employee misclassification involving port drivers in Long Beach and Los Angeles, California--a topic California Attorney General Jerry Brown has vigorously pursued, in order to expose companies who violate worker's rights and operate hidden economy schemes.

As California Attorney General, Brown has reportedly focused on prosecuting California port trucking companies for engaging in employee misclassification, and for failing to provide workers with Social Security, worker's compensation, and Medicare benefits that they are legally entitled to, according to California state law.

In February, Brown won his fifth lawsuit against port trucking companies, after the Superior Court of California in Los Angeles County ruled that a fleet operator in Southern California, Pacifica Trucks, misclassified port drivers as independent contractors--claiming its workers as independent contractors to skirt the responsibility of paying into Medicare, Social Security, and employment-related state taxes.

Brown argued in the lawsuit, filed in 2008, that the drivers for Pacifica should have been classified as employees, with all of the legal benefits that employees are entitled to under state law, and not independent contractors--as Pacifica Trucks maintained total control over the drivers, by providing and covering the trucks, gas, equipment, and other employee expenses related to their business, including repairs.

Attorney General Brown also claimed that by misclassifying the port drivers, Pacifica Trucks maintained a clear cost-saving advantage over trucking competitors that was unfair--a violation of California Business and Professions Code 17200. This is a topic our attorneys discussed in another recent blog, reporting on California Representative Lynn Woosley's (D-CA) Employee Misclassification Prevention Act (EMPA).

Continue reading "California Attorney General Fights Employee Misclassification and Workers' Rights Violations" »

A California wage and hour class action lawsuit was filed recently by two port drivers, against the owner of Sun Pacific Trucking and Pacific Green Trucking--companies that serve the ports of Long Beach and Los Angeles, California. The lawsuit alleges that the owner violated many employment laws including wage theft.

According to the lawsuit, Sun Pacific Trucking, a company that was based in Wilmington, failed to offer many California drivers minimum wage payments as well as their legally entitled meal and rest break periods.

One of the plaintiffs in the lawsuit reportedly claims that Sun Pacific would frequently ask him to work extra hours here and there, with no compensation for his time. The plaintiff claims that the hours would quickly add up, but with no payment to reflect his hard work.

According to the Daily Breeze, Adam Luetto, the plaintiffs' attorney in the lawsuit, claims that these port drivers are tired of driving for long hours with no breaks for overtime work that they aren't paid for. The workers claim that they want their employer to take responsibility for these California employment violations, and to pay them according to their legal rights.

Continue reading "California Port Drivers File Class Action Wage and Hour Lawsuit Against Truck Company" »

In recent news that our Santa Ana, California Employment Attorneys have been following, the administration of Governor Schwarzenegger has filed a new lawsuit this week against Controller John Chiang, to force Chiang to lower wages of state workers in California to the federal minimum wage--a change that would start at the end of the month. This is another development in the ongoing and heated fight between Schwarzenegger and Chaing over the wages paid to state workers when the state budget is not yet signed.

The lawsuit reportedly seeks to make Chiang compensate California governmental workers $7.25 an hour instead of paying them with full salaries, until the governor can reach an agreement with lawmakers on how to deal with an over $19 billion deficit for the new fiscal year.

Last week Schwarzenegger was reportedly given support by a California appellate court to order cutting the pay of 240,000 state workers to the minimum wage, until the budget of the current fiscal year is signed. The administration argued that in the absence of a budget, they are bound by law to slash the wages. Back pay, claims the administration, would then be given to state workers once the budget is enacted.

This is reportedly the second time that Schwarzenegger has tried to implement this change, and Chaing claims that he won't obey the governor's demands until the California Supreme Court orders him to do so. Chaing announced this week that he will protect California workers from the "reckless executive order" of the governor.

Continue reading "Schwarzenegger's California State Worker Minimum Wage Fight Goes to Court" »

In recent California employment law news, California Republican gubernatorial nominee Meg Whitman addressed a New York Times report claiming that while chief executive of EBay, she shoved an employee in a 2007 verbal dispute at the company's headquarters in San Jose, that resulted in an employment settlement.

According to the report, communications employee Young Mi Kim was assisting Whitman to prepare for a Reuters interview when the incident occurred. Whitman reportedly got angry, used expletives, and shoved Kim while they were preparing in a conference room. Kim sought legal representation and threatened Whitman with a lawsuit. The harassing employment incident was reportedly resolved by a private mediator, for a settlement amount that other former employees described as around $200,000.

In response to the article, Whitman described the incident as a verbal dispute, and claimed that these kinds of disputes are likely to happen in any work environment with high stakes and pressure. She dismissed the recent media frenzy surrounding the 2007 altercation as a "fascination of the chattering class" claiming that what voters really want to focus on is how to fix the State of California's economy, jobs, and public school system.

As the Los Angeles Times reports, this is not the first employment incident that has reemerged during the campaign from her corporate experiences. While working at FTD, Whitman was reportedly accused of age discrimination, an employment lawsuit that ended in another confidential settlement.

Continue reading "Whitman Dismisses Media Frenzy over EBay Employment Incident" »

In a recent wage and hour lawsuit settlement that our Orange County, California Employment Attorneys have been reading about, Houston Police canine officers will reportedly receive 1.5 hours of overtime payment weekly for the care of their city-owned police dogs over holidays and weekends.

The lawsuit was reportedly brought by fifty canine officers and the Houston Police Officer's Union last year, to fight for proper canine officer overtime compensation--for the time it takes them to care for their dogs when they are off duty. The dispute over wage and hour payments for canine officer who perform weekend duties reportedly follows a settlement from 1995 that paid some officers a flat fee payment for extra off duty canine responsibilities, but didn't accurately reflect inflation.

According to the Houston Chronicle, the new settlement continues the $150 per month payment for canine officers, gives the officers an hour per each work shift to properly care for their dogs, and waives the payment of $160 that officers paid the city previously to take their patrol units home.

The wage and hour lawsuit settlement will reportedly cost the city $270,000 per year for canine officer overtime costs, and it includes an award of over 100 hours of compensatory time to around 33 officers who were not part of the original lawsuit that was filed.

Continue reading "K-9 Officers Win Overtime Payment in Wage and Hour Settlement" »

In recent news that our Riverside, California Employment Attorneys have been following, a former employee is suing Walmart for wrongful termination, after he was fired for testing positive for marijuana--a drug he was using legally for medical use.

Joseph Casias, along with the American Civil Liberties Union (ACLU), reportedly sued Walmart last week, for wrongful termination, after a mandatory drug test found marijuana in his system. According to the complaint, Walmart policy states that employees are tested for drugs when injured on the job, and after Casias injured his knee at work, he was required to take the test.

Casias, 29, was a five-year Walmart employee and recipient of the 2008 "associate of the year" award in the Battle Creek, Michigan store. He has reportedly been suffering from sinus cancer for 13 years, as well as an inoperable brain tumor that presses against his skull. After a law was passed in Michigan in 2008 approving the drug for medical use, his oncologist prescribed medical marijuana to Casias. In the complaint, Casias claims that marijuana has had a "life-changing positive effect," on him, and that he uses it to alleviate the excruciating pain that his tumor and cancer cause.

Casias has a legal prescription for medical marijuana from his doctor, and even has a state-sanctioned card stating that he can legally use the drug. He claims that he never worked at Walmart under the influence of medical marijuana, and also never asked for any accommodation from the company for his illness.

Continue reading "Walmart Employee Fired for Using Medical Marijuana Sues for Wrongful Termination" »