California Employment Lawyers Blog

As the baby boom generation sails toward retirement and further into old age, the home health care industry is poised to see a boom.

But exactly what that will look like, our Los Angeles labor attorneys know, is a matter of speculation, as the White House weighs a recommendation by the U.S. Department of Labor to impose mandatory overtime and minimum wages for home health care workers, same as everyone else.

You see, in most parts of the country, home health aides fare about the same as babysitters in terms of legal wage protections. That's because in 1974, Congress passed a law that actually lumped them in with babysitters in terms of labor laws. The argument was that 80 percent of what these individuals did was offer companionship, which meant playing cards or sitting and watching television. Only 20 percent of the time was spent doing actual work such as cooking, cleaning and shopping, according to Congress at the time. That is usually no longer the case today, but still most aides across the country earn less than minimum wage.

California is one of 22 states that has enacted a law entitling home health care workers to minimum wage, which it did in 2010. The law requires that any home health care worker - regardless of whether they are employed by a non-profit or the county and regardless of whether their duties don't go beyond feeding, dressing and supervising a person and regardless of whether they receive overtime - are entitled to the minimum wage, which is currently $8.00.

Fifteen states require overtime pay for those workers as well. California isn't one of them.

Labor unions say that needs to change.

The opposition to this move is fierce. The argument, according to patient advocates, is that forcing the issue of overtime will mean one of several scenarios.

Elderly and disabled patients who need constant care will be the least unable to afford the change. As such, they may reduce the amount of care they receive, which could have serious consequences to their health. Alternatively, because there won't be enough funds to pay overtime wages, they will be forced to accept strangers into their homes to cover the rest of the hours. Or, they may need to simply enter a state-funded nursing home, which is ultimately more expensive and patients tend not to do as well.

Patient advocates say the scenario is also bad for workers because although they will be entitled to overtime, their employer may not offer it, instead opting to hire more people, which will result in a drastic reduction of hours. There will be more jobs, but the quality of those jobs would be questionable, they say.

Some argue that seniors will be forced to turn to undocumented, unqualified workers if the prices go up.

But this plays right into the other side of the argument: That the work of home health care workers does require hard work, skill and dedication. As such, they should not be treated merely as casual high school babysitters, particularly when they are pivotal to the well-being of a growing number of individuals.

While some would argue that those who stay overnight with patients don't do much during that time, people forget that is time the worker must spend away from their families. It is time during which they are not free to do whatever they please. And in many cases, it's important to the patient, who may need help going to the bathroom several times each night or who may require immediate medical assistance if they've fallen or for some other reason. The home health care aide can summon that help.

Clearly, there are some issues to iron out, and this is not a one-sided coin.

But fact that these workers form a strong bond and genuinely care about those whom they care for should not negate their need to be treated fairly in the eyes of the law.

Continue reading "Overtime Pay for California Home Health Aides Weighed in Washington" »

The Working Families Flexibility Act has passed its first major hurdle with a 223-204 approval in the House of Representatives recently, meaning employers are one step closer to being able to get out of paying mandated overtime, if they offer workers paid time off instead.

Our Los Angeles employment lawyers are deeply concerned for what this bill would mean for the working families after whom it's named. Certainly, there may be some who would rather have the time off than the money. Our problem is that it appears the worker isn't the one being given the option.

As it now stands, current labor laws require that employers pay time-and-a-half for every hour a worker puts in over 40 hours in a given week.

The problem, say opponents, is that H.R. 1406 fails to protect lower-income workers from collecting overtime pay, if that's what they actually prefer. Under the guidelines of the bill, companies are given enough latitude to pressure workers into taking comp time instead. There is also no guarantee in the bill that workers are going to be able to use that compensatory time when they want to do so. In effect, it doesn't guarantee that workers can use that time they earn when they want or need it most, which may render it far less invaluable to them.

It's not even the first time the bill was proposed. A similar measure was introduced back in 1997, though it wasn't painted as a "family friendly" measure. The packaging has changed, say political analysts, as the Republican party attempts to portray itself as more friendly to families and women.

Opponents of the measure argue that the concept of overtime pay has been a mainstay in the American workforce, and it's there to ensure employers don't abuse their workers.

An editorial penned in The New York Times called the bill the "Family Unfriendly Act." The writer goes so far as to call the measure a form of "fraud."

The bill contains no real incentive for companies to give workers a clear choice - and no deterrence for forcing them to do as the company wishes. The only real recourse at that point is filing an employment lawsuit.

For employees who refuse to work overtime for no extra pay, the end result is likely to be that they will receive fewer hours and less pay overall. For those who accept it, the arrangement is likely to mean there will be a great amount of unpredictability in their scheduling. That's going to lead to more stress and higher costs for work-related expenses - i.e., child care. However, there won't be any additional funds to cover those expenses.

If Congress were truly interested in improving work-life balance and employee pay, there are a number of other, clearly effective ways they could do it. Those might include boosting the minimum wage, instituting paid sick leave for more career fields, longer paid maternity leave schedules, and end to gender discriminatory pay practices, promoting advance notice for employment scheduling and easing the formation of unions.

Measures like won't do workers any favors.

Continue reading "House Passes PTO Alternative to Overtime Pay " »

Many students eager and even recent graduates eager to get a leg up in their career field are embarking on internships this summer, and many of those positions will be unpaid.

While Los Angeles Employment Attorney Vincent Howard of HOWARD LAW recognizes that this can be a golden opportunity for those just breaking into competitive fields.

However, what it shouldn't be is free labor. In fact, one of the primary legal tests to determine whether an unpaid internship violates the law involves the benefit to the employer. If the firm is benefiting a great deal from your work and services, chances are, they're overstepping their bounds.

Historically, few of them were ever reported. Interns had viewed it as some punishing right of passage, and they worried that going up a powerful firm or well-connected colleagues so early in their careers might stunt their ability to find work after graduation. That's still a concern for some, but the culture is changing.

A number of high-profile cases have spotlighted the issue in a way that it's never been before. Recently in Los Angeles, a former fashion design intern filed suit against a fashion powerhouse where she had worked unpaid, alleging that the terms of the agreement had violated the regulations set forth by the California Industrial Welfare Commission. Those laws mandate that workers be paid no less than $8 hourly and time-and-a-half for the hours they work over 40 each week. The firm also failed, she says, to provide rest and meal periods.

A recent survey conducted by the National Association of Colleges and Employers found that approximately half of all college seniors had held an internship at some point. That's more than double the rate that reported the same just 20 years ago.

However, legal protections for interns have been slow to keep pace. But as cases like the one above continue to be filed, that is changing.

It's a misconception that receipt of school credit alone makes an unpaid internship legal. In fact, the U.S. Labor Department does not consider that to be one of the core factors it considers when weighing the legality of an internship. Rather, the agency holds that the following six criteria must be met in order for an unpaid internship to be legal:

• Even though it takes place at the employer's facilities, the internship should provide similar training to what might be offered in an educational environment;


• The experience is to benefit the intern;


• The intern should not displace regular employees, but rather works under the close supervision of the staff who is already there;


• The employer gets no immediate advantage from the work of the intern. In fact, operations may be impeded;


• The intern isn't guaranteed a job at the end of the internship;


• Both the employer and the intern are at an understanding prior to the beginning of the work that the time spent will be unpaid.

Continue reading "Unpaid Internships in Los Angeles a Slippery Legal Slope" »

In a recent Los Angeles California employment lawyers blog, Vincent Howard discussed two Hollywood wrongful termination lawsuits involving movie star Sharon Stone--who was recently sued by her former housekeeper and her former nanny, for violations of California and federal labor laws.

This week, pop star Usher made employment news headlines after his former nanny filed a wrongful termination and overtime lawsuit against the music icon, claiming that she was not paid for overtime hours while taking care of this two small children. Cecelia Duncan claimed in the wrongful termination lawsuit that she was hired as a part time nanny for the singer's children in 2010, but that she often worked over forty hours a week, with no overtime compensation.

Duncan reportedly told Usher in 2011 that she was being overworked without receiving proper overtime compensation. One year later in 2012, Duncan claims in her wrongful termination lawsuit that she was fired and never paid the extra overtime compensation for the hours that she worked while being employed by Usher.

The former nanny is suing Usher for wrongful termination, failure to pay proper overtime wages, and damages, although the damages were reportedly not specified in the lawsuit. Usher, according to the Hollywood Reporter was paid $7 million from hosting the wildly popular NBC show, "The Voice" in 2012. Usher's representative's made a statement that this lawsuit is completely without merit.

Continue reading "Usher Sued by Former Nanny for Wrongful Termination, Overtime Violations" »

According to new wage and hour lawsuit data from the Federal Judicial Center, the number of employees who have sued their employers over wage and hour issues in the workplace has substantially increased. Costa Mesa-based attorney Vincent Howard has been following an analysis of the data that reports that over the past year, the number of wage and hour lawsuits have increased ten percent. This is the fifth year in a row that the lawsuits have increased, according to the study.

The analysis concludes that the first major increase in cases occurred in 2003, when the number of federal wage and hour lawsuits almost doubled from around 2,000 to 4,000. This number has continued to grow over the past five years, from over 5,000 lawsuits in 2008 to over 7,000 lawsuits filed in 2012.

These federal wage and hour lawsuits that allege violations of the FLSA are typically separated into three categories: hourly workers who claim that they have not been compensated for all of their work hours, salaried employees who claim that they are owed overtime pay, or have experienced employee misclassification, and restaurant workers who claim that their rights have been violated, when employers fail to pay additional wages after their tips combined with regular pay do not total the federal minimum wage.

CNN Money reports there has been a nearly 400 percent increase in wage and hour violations under the Fair Labor Standards Act (FLSA) since 2000. In a related Orange County employment lawyers blog, Vincent Howard reported on a 2008 study entitled "Wage Theft and Workplace Violations in Los Angeles" that surveyed low wage workers in Los Angeles County. The study found that low wage workers were consistently robbed of their wage and hour rights, by being forced to work through rest and meal breaks, being exposed to tip stealing, and subjected to a lack of payment documentation, late compensation and retaliation.

Continue reading "Study Shows Increase in Wage and Hour Lawsuits for Five Consecutive Years" »

In this week's wage and hour news, employees for the well-known candy company Russell Stover Candies filed a federal lawsuit against the company, accusing the candy maker of employee misclassification and failure to pay overtime compensation.

According to the wage and hour lawsuit, nine workers claim that Russell Stover erroneously classified them as sales representatives, making them exempt from overtime compensation--where their actual responsibilities did not involve sales. The lawsuit claims that most of the candy company's direct sales are preformed by other employees.

The sales representatives claim that the majority of their duties include receiving candy shipments, inspecting them, unpacking, cleaning, stocking, driving to stores, repairing display fixtures and processing credits. One plaintiff who worked for the company from 2005 until 2012 claimed that her duties included manual labor, and that she regularly worked over forty hours in a workweek but was never paid overtime. The company is also being accused of creating an erroneous calculation of hours on the plaintiffs' paychecks, to show that they only worked forty hours, when in reality they worked more overtime hours.

As Vincent Howard frequently reports in Howard Law PC's Huntington Beach employment attorney's blog, the FLSA enforces that most employees are paid with the federal minimum wage, $7.25, for all hours worked, plus overtime payment totaling one and one-half their regular payment rates for all hours worked over forty hours in a week of employment.

Continue reading " Russell Stover's Outdoor Sales Representatives Sue for Employee Misclassification" »

The writers from E! Network's popular show Fashion Police, starring Joan Rivers, have recently accused the network of violating their California wage and hour rights, alleging that E! owes them back wages that total over $1 million.

According to the Los Angeles, California wage and hour news, that Vincent Howard has been following, eight writers from the show recently filed a claim with the California Division of Labor Standards Enforcement (DSLE), claiming that E! has broken California law by failing to compensate them for all of their regular and overtime work hours they have accrued since writing for the show.

Fashion Police is being accused of ignoring the California wage and hour laws requiring that employers compensate hourly employees with their normal wage rate for all hours worked in an eight hour day, along with overtime compensation for any hours worked beyond forty hours in a week of work.

One of the writers claimed that the most she has been paid on the show was for eight hours of work, even though she consistently worked anywhere from twelve to thirty-two extra hours on the show. The writer claimed that the writing team was often required to work as many as sixteen hours at a time, with no additional overtime compensation.

Continue reading "E! 'Fashion Police' Writers File Overtime Lawsuit, Claiming $1M in Unpaid Wages" »

Costa Mesa-based attorney Vincent Howard has been following a recent U.S. Department of Labor (DOL) investigation, after the DOL's Wage and Hour Division (WHD) found that Hutco Inc., an industrial services staging company, violated the Fair Labor Standard Act's (FLSA) overtime requirements by using payment and record-keeping practices that were evasive.

According to the WHD investigation, the company was found to have engaged in massive overtime violations in six of the company locations. Hutco reportedly mislabeled certain wage payments as "per diem" payments, and failed to include these wages when calculating the employees' overtime premiums--denying the workers with overtime payment. This illegal pay practice resulted in record-keeping violations of the FLSA, regarding the accuracy of the actual hours each employee worked, and the actual wages paid.

The WHD's acting deputy administrator, Mary Beth Maxwell, stated that temporary workers often run the risk of failing to receive their legal right to proper wages and legal protections provided to them under federal law. According to the WHD, employers are not allowed to dismiss their legal responsibility to compensate workers with overtime by using improper practices that deny these workers their rightful wages, and break federal labor laws.

Under the settlement, Hutco has agreed to pay 2,267 workers with $1,916,850 of back wages and will comply in the future with federal law. The company must also take measures to avoid future violations, and identify and pay workers who qualify for actual per diem payments, pay proper overtime payments to workers, and ensure that the per diem compensation is not automatically taken out of overtime calculations. Employees must also be informed about their compensation and employment terms and conditions, and Hutco must keep accurate payment records.

Continue reading "Hutco Staffing Agency Will Pay Around $2M in Overtime Back Wages to Workers" »

Coyote Ugly Saloon, the bar made famous from the 2000 film of the same name, is reportedly being sued in a class action wage and hour lawsuit by nearly fifty current and former bartenders/dancers who are accusing the saloon of denying them overtime payment.

Anaheim, CA-based attorney Vincent Howard has been following this lawsuit that accuses Coyote Ugly Saloon Development Corp. of failing to pay 37 former and current bartenders from Coyote Ugly Nationwide, and 10 former bartenders of the Nashville-based Coyote Ugly, for overtime work performed.

Coyote Ugly is known for having bartenders and female customers regularly dance on the bar--as portrayed in the film starring Tyra Banks and Piper Perabo. The bartenders filed a class action lawsuit in 2011, alleging that Coyote Ugly violated the Fair Labor Standards Act (FLSA) by making the bartenders work overtime, and requiring them to share and pool their tips with bouncers and barbacks.

The wage and hour lawsuit accuses Coyote Ugly of engaging in a tip pool that was against FLSA regulations, because the bouncers were allowed to take 5 percent from the gross tips. Under the FLSA, a valid tip pool includes employees who regularly or customarily receive tips, such as bartenders, bussers and waitstaff, but not any employees who do not customarily receive tips or their services.

Continue reading "Coyote Ugly Saloon Sued for Overtime Violations, Retaliation" »

In a previous Riverside, California employment lawyers blog, Vincent Howard discussed a $12.9 million employment misclassification lawsuit settlement involving a group of exotic dancers from California and other states, who claimed that the adult strip club chain Spearmint Rhino wrongly classified them as independent contractors, violating the Fair Labor Standards Act (FLSA) by neglecting to compensate them with minimum wage and employee benefits.

In similar employee misclassification news, a group of 1,245 dancers working at a gentleman's club in New York City have also filed a lawsuit over improper classification and violations of the FLSA, and have reportedly reached an $8 million preliminary lawsuit settlement.

According to the lawsuit filed in December 2009 by dancers Stephanie Carattini and Nicole Hughes, Penthouse Executive Club engaged in employee misclassification by erroneously classifying the dancers as independent contractors. The dancers also accused the strip club of failing to pay them minimum wage and overtime compensation, for failing to reimburse them for the cost of purchasing and cleaning their uniforms, and for withholding a portion of the tips that dancers received from clients for their dances. Another lawsuit was reportedly filed in February 2010 by another dancer, and the cases were then consolidated in federal court.

The employee misclassification lawsuit accuses the dance club of engaging in violations of the FLSA, along with New York state labor law, and for being out of compliance with basic worker protection statues. The preliminary lawsuit settlement reportedly gives each dancer a payment of $3,737.79 for the first year of working at the club, and $988.13 for the subsequent years worked.

Continue reading "NY Exotic Dance Club to Pay $8M for Employee Misclassification" »

In recent wage and hour news that Riverside, California employment attorney Vincent Howard has been following, four former waiters have filed a lawsuit against New York's popular restaurant Peter Luger Steak House, claiming that the famous steak restaurant violated provisions of the Fair Labor Standards Act (FLSA), including the proper payment minimum wage compensation and overtime.

According to the wage and hour lawsuit, starting in March 2007, the restaurant failed to compensate the waiters for the thirty minutes of preparation work that they performed before they started their shifts, and the thirty minutes of work they did after their shifts ended. The waiters also claimed that they often had to stay on the job for an extra hour, until the customers left, which frequently required them to work through their meal and rest breaks. The waiters' also allegedly received regular deductions of $20 from the daily tip pool to give to the kitchen workers, who were not part of the regular customer service staff. The lawsuit seeks class-action status, and alleges both New York State and federal labor law violations.

As Vincent Howard discussed in a previous Carson employment attorneys blog, under the FLSA, employers are required to compensate non-exempt employees with a minimum wage of $7.25 for all hours worked, with overtime compensation of one and one-half the individual's regular pay rate for hours worked beyond forty in a workweek.

For tipped employees, employers are required to pay at least $2.13 for each hour in direct wages, with the understanding that these wages plus the employee's tips total at least the federal minimum wage of $7.25 per hour. If the total amount of the employee tips combined with the amount of direct wages do not equal the federal minimum wage, the difference must be covered by the employer. Employers are also required by federal law to maintain accurate employee payroll and time records.

Continue reading "Peter Lugar Steak House Sued for Wage and Hour Violations" »

In recent Los Angeles, California employment news, Vincent Howard has been watching the unfolding of a high-profile gender and race discrimination lawsuit--filed by a former chef of well-known celebrity hangout Cleo Restaurant, in Hollywood, California.

According to the lawsuit, female chef Keyon Wilson started working as a line cook in 2012, as the only African-American employee in the kitchen. Wilson, who is also gay, claims that soon after joining the Hollywood eatery, the supervising chefs and other colleagues began hurling offensive racial and anti-gay slurs at her.

Wilson claims in her sexual harassment and anti-gay lawsuit that employees who were not African-American and not gay were not treated in the same manner, and after filing a complaint about the severe racial and gender discrimination, she did not receive any support. Instead, according to the lawsuit, Wilson was retaliated against, and was forced to take unpaid days off, with delayed paychecks. Wilson claims she was forced to quit after one month on the job.

As defined by the U.S. Equal Employment Opportunity Commission (EEOC), sexual harassment can include advances of a sexual nature, requests that are unwelcome, and any other physical or verbal sexual harassment. According to Title VII of the Civil Rights Act of 1964, harassment or discrimination based on sex or gender is against the law. It is also illegal for employers to retaliate against any employees who stand up to sexual harassment or discrimination.

Continue reading "Anti-Gay, Race Discrimination Lawsuit Hits Hollywood Restaurant" »

In a previous Santa Ana, California employment attorneys blog, wage and hour attorney Vincent Howard discussed a class action lawsuit against the popular Los Angeles-based retail store Forever 21, after a group of employees accused the company of forcing them to work off the clock hours, and skip meal and rest breaks--a violation of the Fair Labor Standards Act (FLSA).

The U.S. Department of Labor continues to fight against the widespread occurrence of FLSA violations in the California garment industry, which recently brought Forever 21 back into the news again, after a U.S. District Court Judge ordered that the retailer produce documents that were demanded by the U.S. Department of Labor's Wage and Hour Division (WHD).

The WHD reportedly issued the subpoena in August of last year, while investigating to see if Forever 21 had violated the FLSA's hot goods provision--which keeps employers from sending any items that were produced by violating the FLSA's overtime, minimum wage, or child labor provisions. The subpoena was originally issued after the WHD conducted a major investigation into the garment district of downtown Los Angeles in August, uncovering minimum wage and overtime violations in warehouse shops that produced goods for major clothing retailers. The WHD reportedly found garments that were produced in at least one of the shops, making clothes for Forever 21 stores. Forever 21 allegedly refused to comply with the subpoena.

According to the FLSA, if a company engages in these wage and hour violations, the secretary of labor can investigate and bring actions to the employer in federal court.

Continue reading " Forever 21 Ordered by Court to Respond to DOL Subpoena, Regarding FLSA Violations" »

Hollywood star Sharon Stone has ended up in Los Angeles, California employment news again, after her former housekeeper Angelica Castillo filed a lawsuit against the actress, alleging that Stone forced her to perform physically strenuous tasks and then wrongfully terminated her employment out of retaliation when Castillo asked for a bed rest period after sustaining an injury on the job.

As Vincent Howard reported in a related Santa Ana employment lawyers blog, this is the second time Stone has been sued by an employee in less than a year. In May of 2012, Stone was sued by her former nanny of four years, Erlinda Elemen, for violations of California and federal labor laws, racial harassment and wrongful termination. Elemen claimed that Stone harassed her with ethnic slurs related to her Filipino heritage, and violated labor laws by initially paying her overtime compensation and then demanding the payment back--by accusing her of stealing.

According to Castillo's lawsuit, filed this week, the former housekeeper injured her back in June of 2012, while grocery shopping for Stone. Castillo claims to have injured her back while loading groceries, and sustained severe back pain. In September of 2012, Castillo reportedly sought medical attention for the injury, and her doctor recommended that the housekeeper have a brief bed rest period, abstaining from lifting heavy things. Stone allegedly ordered her to report back to her job that same day, and demanded that Castillo perform her regular job duties--which included moving and lifting heavy things while cleaning Stone's home.

Castillo claims in her suit that other employees who could have helped her perform the necessary job duties were not allowed to help. In October, during a cleaning session when Castillo was reportedly moving in severe pain, Stone allegedly yelled, calling her derogatory names for moving slowly and not performing her work duties fast enough. Castillo claims that she was fired that same day, after two years of employment. Stone is being accused of engaging in wrongful termination and retaliation, after Castillo sought medical leave for her back injury.

Continue reading "Sharon Stone Sued Again--Former Housekeeper Claims Wrongful Termination, Retaliation" »

In a previous Irvine, California wage and hour blog, Vincent Howard discussed two separate lawsuits that California Labor Commissioner Julie A. Su filed in Los Angeles, California against three carwash businesses--for wage and hour violations that included failing to compensate car wash workers with proper minimum wage and overtime. Based on Labor Commissioner Su's investigation, last month, a criminal complaint was filed by the Santa Monica City Attorney's Office against one of these car wash companies, for wage theft, and conspiring to cheat employees out of their hard earned wages.

This week Su launched another wage and hour lawsuit against a California car wash owner based in Fresno, who is also being accused of engaging in multiple labor law violations--by failing to compensate employees with minimum wage and overtime payment.

According to the Labor Commissioner's investigation, Manbir S. Walia, the owner of White Glove Car Wash willfully violated labor laws by failing to pay his employees proper wages and overtime compensation. The lawsuit seeks over $279,000 in back wages, damages and penalties, affecting thirty-three employees at White Glove Car Wash.

The White Glove employees were reportedly paid on an hourly basis, and were instructed to report in the morning to the car wash for work--but according to the lawsuit, were not permitted to clock in until approved to do so by a supervisor. The investigation found that many workers were made to wait as much as several hours before they could clock into work, resulting in the erroneous payment of workers. Many employees who worked an eight-hour day, were only paid for four hours.

Continue reading "CA Labor Commissioner Sues Fresno Car Wash Company for Wage Theft--Lawsuit seeks $279K in Unpaid Wages" »