On March 18, 2014, the Ninth Circuit Court of Appeals affirmed the district court award of three years of double overtime to City of Los Angeles fire department dispatchers and aeromedical technicians (paramedics in air ambulance helicopters) for the City’s failure to pay overtime to the employees.
The Fair Labor Standards Act (“FLSA”) establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting Federal, State, and local government employees. Under the FLSA, the City of Los Angeles is required to pay employees time and-a-half for all hours worked in excess of 40 hours per week. A statutory exception to this rule exempts employees “engaged in fire protection” from standard overtime pay, instead allowing government employers to pay these employees overtime only after they have worked 212 hours in a 28-day pay period, or alternatively, 204 hours in a 27-day pay period. Congress has defined “employee in fire protection activities” as persons “employed by a fire department of a municipality, county, fire district, or State,” who are “trained in fire suppression,” and have “the legal authority and responsibility to engage in fire suppression.”
In the complaint, the plaintiffs alleged that the City violated the FLSA by misclassifying them as “fire protection” employees for purposes of overtime pay, seeking liquidated damages for the “City’s lack of good faith or reasonableness in complying with the FLSA.” The district court granted the plaintiffs’ motion for summary judgment, holding that dispatchers and aeromedical technicians are not “engaged in fire protection,” but perform “incidental nonfirefighting functions,” specifically excluded from the present FSLA definition of “fire protection activities.” The court awarded the plaintiffs liquidated damages of double the unpaid overtime compensation over an extended three-year statute of limitations period for the City’s willful violation of the FLSA.
The Ninth Circuit affirmed the district court decision, holding that the plaintiffs do not qualify as “employees engaged in fire protection,” that the City acted in willful violation of the law, that a three-year statute of limitations applies, and that liquidated damages are proper.
If you or someone you know has not been paid correct overtime, or has otherwise been underpaid by your employer, you may be entitled to relief. Please call Khorrami Boucher Sumner Sanguinetti, LLP for a confidential consultation.
On March 12, 2014, McDonald’s employees filed three separate lawsuits in Oakland, California (Case Nos. RG14-717102; RG14-717085; RG14-717081), as well as similar suits in Michigan and New York, alleging the fast food restaurant and certain of its franchisees committed violations of various federal and state labor laws.
The three California class actions each allege McDonald’s and some of its franchisees required employees to work off-the-clock, failed to provide meal and rest periods, altered time records, failed to pay employees overtime, and failed to provide accurate itemized wage statements.
According to Law 360, attorneys for the California plaintiffs stated they have “uncovered several unlawful schemes, but they all share a common purpose: to drive labor costs down by stealing wages from McDonald’s workers.” The attorneys report that they have been approached by several McDonald’s employees and anticipate filing additional future law suits against the fast food giant.
McDonald’s issued a statement in response to the allegations, stating “McDonald’s and our independent owner-operators share a concern and commitment to the well-being and fair treatment of all people who work in McDonald’s restaurants. We are currently reviewing the allegations in the lawsuits. McDonald’s and our independent franchisees are committed to undertaking a comprehensive investigation of the allegations and will take any necessary actions as they apply to our respective organizations.”
According to the Huffington Post, New York state reached a settlement last week with the owner of seven McDonald’s franchises in Manhattan. The franchise owner agreed to pay nearly $500,000, which will be split among 1,600 current and former McDonald’s employees who claim they were required to work off-the-clock before and after their shifts and otherwise shorted on pay under New York law. The California and Michigan lawsuits are still currently pending.
If you or someone you know has been underpaid by your employer or required to perform work off-the-clock, you may be entitled to relief. Please call Khorrami Boucher Sumner Sanguinetti, LLP for a confidential consultation.
Select Staffing helps fill personnel needs for a wide-range of companies in California and nationwide. As is common with staffing agencies, the client-company pays Select Staffing for workers and Select Staffing in turn pays its employees that it sends out to fill its clients’ needs.
Select Staffing has been making paycheck deductions to charge an employee for a uniform and employee badge even though a uniform was not issued to the employee and the badge was not to be used at work. Select Staffing may be in violation of California labor laws by deducting uniform expenses from employees’ wage statements without ever providing (or requiring) any uniforms to be worn. When an employer requires uniforms to be worn by employees as a condition of employment, that uniform must be provided and maintained by the employer, unless the “uniform” contains no distinctive design or color and can be used from one job to the next. Additionally, a labor law violation may occur if paycheck deductions are made for employee badges issued by the employer which either are not used on the job or which should be paid for by the employer because they are necessary for the employee to discharge their duties.
If Select Staffing has deducted costs for uniforms or badges from your paycheck, please contact Khorrami Boucher Sumner Sanguinetti, LLP for a private consultation.
A jury awarded a Long Beach man nearly $400,000 in a discrimination suit after finding that a Long Beach doctor and the man’s employer discriminated against him for being gay.
Plaintiff Edward Martinez was hired as a medical assistant by Spring Family Medical Group in August 2010. The jury found Jared Piety, owner of Spring Family, liable for his unlawful behavior towards Martinez. According to Martinez, Piety was unaware of his sexual orientation at the time he was hired and even asked Martinez if he was gay at his orientation. Shortly after Martinez was hired, Piety became aware of his sexual orientation and began constantly calling Martinez gay slurs and regularly mocking him in front of patients, according to Martinez.
Martinez complained numerous times about Piety’s conduct but his complaints went unanswered. Martinez was fired about six months after being hired in what Martinez believes was retaliation for his complaints.
If you have been unlawfully discriminated against in the workplace, please contact Khorrami Boucher Sumner Sanguinetti, LLP for a private consultation.
The NFL’s Oakland Raiders are facing a class action lawsuit by their own cheerleaders, the Raiderettes. The suit alleges that the Raiders pay their cheerleaders $1,250 per year, which is less than $5 per hour, while also fining them for minor infractions, reducing their pay for gaining even just a few pounds, requiring them to pay their own travel expenses, all the while refusing to pay them any money at all until the season is over.
Specifically, the lead plaintiff, Lacy T., alleged, “The club controls our hairstyle and makeup, and we have to foot the bill. We also have to pay the costs for traveling to all kinds of events, including photo shoots. …I love the Raiders and I love being a Raiderette, but someone has to stand up for all the women of the NFL who work so hard for the fans and the teams.”
The complaint was filed with a copy of Lacy’s employment contract. Her attorney, Sharon Vinick, stated that she had “never seen an employment contract with so many illegal provisions.”
Lacy and the other plaintiffs are seeking damages for failure to pay minimum wage, failure to pay wages in a timely manner, unlawful deduction from wages, failure to pay overtime, failure to provide wage statements, unlawful prohibition on discussing wages, failure to reimburse expenses, among others. The complaint was filed in Alameda County Superior Court.
If you or someone you know has been the victim of employment violations such as the ones described here, please contact Khorrami Boucher Sumner Sanguinetti, LLP for a private consultation.
Global financial services firm JP Morgan Chase has agreed to pay $1.45 million to settle a sexual harassment lawsuit filed by the United States Equal Employment Opportunity Commission (“EEOC”), on behalf of a group of 16 female mortgage bankers employed at a JP Morgan Call Center outside Columbus, Ohio. The EEOC enforces federal laws prohibiting employment discrimination.
According to the EEOC complaint, JP Morgan Chase maintained a sexually hostile work environment towards female mortgage bankers at its Polaris Park facility, consisting of sexually charged behavior and comments from supervising staff and other mortgage bankers. The female mortgage bankers who did not embrace and participate in this state of affairs were ostracized and suffered economic harm, including being deprived of lucrative sales calls, training opportunities, and other benefits of employment.
After attempting to reach a pre-litigation settlement through the EEOC conciliation process, the EEOC filed a lawsuit, entitled Equal Employment Opportunity Commission v. JP Morgan Chase Bank, N.A., in the United States District Court for the Southern District of Ohio, asserting claims on behalf of the female Plaintiffs for violation of Title VII of the Civil Rights Act of 1964.
JP Morgan Chase agreed to settle the case and to allocate $1,450,000 in monetary relief among the 16 female mortgage bankers employed at the Polaris Park facility. In addition, the consent decree resolving the case enjoined JP Morgan Chase from creating or maintaining a sexually hostile work environment at the Polaris Park facility in the future. Furthermore, the company is now required to develop a call data retention system at the Polaris Park facility so that assignments of sales calls can be accessed and analyzed to ensure equitable distribution among mortgage bankers.
If you or someone you know has been the victim of sex based discrimination or any other form of employment discrimination, please contact Khorrami Boucher Sumner Sanguinetti, LLP for a consultation.
Wal-Mart will pay $87,500 to settle a lawsuit for retaliation filed with the U.S. Equal Employment Opportunity Commission (“EEOC”). According to plaintiff Ramona Bradford, Wal-Mart’s Eubank, New Mexico location refused to hire her adult son and daughter for entry-level positions because Ms. Bradford had filed a sexual discrimination charge against Wal-Mart with the EEOC.
Title VII of the Civil Rights Act of 1964 prohibits employers from retaliating against an employee because of his or her opposition to discrimination and/or participation in protected activity, such as filing a discrimination charge. The EEOC alleged that Ms. Bradford was a victim of retaliation because her two adult children were being denied employment because of her sexual discrimination complaint.
In addition to the $87,500 monetary relief, the suit provides for other relief such as an injunction prohibiting retaliatory practices, training for managerial employees on retaliation, and the posting of a notice advising employees of their rights under Title VII.
If you feel that you have been a victim of retaliation by your employer, please contact Khorrami Boucher Sumner Sanguinetti, LLP for a private consultation.
Beginning January of 2014, the Internal Revenue Service (“IRS”) began classifying automatic gratuities as service charges which are taxed like regular wages. Many hotels, restaurants, and others in the hospitality industry include mandatory automatic gratuities on checks for parties of six or more, rather than giving the customer the discretion to tip an amount that they feel is suitable.
The change is expected to be problematic for the hospitality industry as it will complicate payroll accounting. For example, once the tip is designated as a “mandatory tip,” it becomes part of the employee’s wages paid by the employer. This will affect the employee’s rate of pay since, as wages, mandatory tips must be included into the regular rate of pay for hourly employees unless a basis for exclusion can be found in the Fair Labor Standards Act (“FLSA”). Additionally, restaurants currently pay Social Security and Medicaid taxes on all of their employees’ tips which entitles them to a tax credit. However, the new changes would lower this possible income-tax credit.
Many restaurants are now considering getting rid of automatic gratuities all together. Others, in a much more dramatic response to the new law, are not allowing their servers to receive any tips at all and are instead increasing food prices to include the cost of service. In such a scenario, the servers would be paid a higher hourly wage to make sure they are compensated properly.
If you or someone you know has suffered a financial injury related to employment, please contact Khorrami Boucher Sumner Sanguinetti, LLP for a private consultation.
A nurse has filed a lawsuit against Coshocton County Memorial Hospital Association in federal court in Columbus, Ohio, alleging religious discrimination.
Karen Good, a nurse supervisor, claims the hospital implemented a mandatory flu shot policy for all employees commencing in October 2012. According to the lawsuit, Good’s religious beliefs prohibited her from receiving such a shot. In order to be exempt, the hospital required a religious exemption form signed by an employee’s clergyman. When Good turned her form in, however, the hospital informed her that she could either be vaccinated or be terminated. Good offered to wear a mask in lieu of the shot, but was refused.
Good is seeking both compensatory and punitive damages for her injuries under her claims of religious discrimination and retaliation.
Federal law, under Title VII of the Civil Rights Act, prohibits the impermissible consideration of religion in employment practices. California’s Fair Employment and Housing Act (FEHA) places similar restrictions on employers. FEHA prohibits employers from discriminating against an employee or potential employee because of a conflict between the employee’s religious belief and the employer’s requirement.
If you or anyone you know has been terminated due to religious discrimination, please contact Khorrami Boucher Sumner Sanguinetti, LLP for a confidential consultation.
Employees of Four Seasons, Ltd. and Marriott Hotel Services, Inc. have settled class action lawsuits alleging the hotels engaged in illegal tip withholdings. According to Top Class Actions, the employees claimed their employers billed customers for mandatory service charges, which were not passed on to the employees as tips.
The lawsuit against Four Seasons alleged that the hotel wrongfully withheld tips from food and beverage workers by keeping a portion of “gratuity fees” charged to guests. Other issues, such as whether Four Seasons employees should be awarded liquidated damages, are still pending, but the court approved the $4 million service charge settlement agreement. Similarly, the Marriott food and beverage servers settled their claims that the hotel misled customers into believing that “gratuity fees” they were being charged were going directly to servers, when in fact the hotel was retaining a portion of this money for itself. Marriott agreed to pay class members lost wages, tips, and interest to settle the servers’ claims.
According to Hawaii Statutes § 481B-14, hotels and restaurants that charge service charges for the sale of food and beverages must distribute these charges directly to employees as tips or inform purchasers that these charges are not being passed on to servers as tips. Other states, including Washington and New York, have similar laws, but in most states service charges are not considered tips. For example, according to the California Department of Industrial Relations, tips are voluntary amounts left by patrons for employees, whereas mandatory service charges are “contractual agreement[s]” between the establishment and the patron, the employer can distribute to employees at its discretion, and if given to employees, would be included in their regular rate of pay for overtime payments. In contrast, California Labor Code § 351 prohibits employers from using voluntary tips as credit towards its obligation to pay minimum wage. Therefore, employee tips customers voluntarily pay to servers are amounts earned in addition to wages paid by the employer.
If you or someone you know has not received all wages owed by your employer, you may be entitled to relief. Please call Khorrami Boucher Sumner Sanguinetti, LLP for a confidential consultation.