Wal-Mart Violating Minimum Wage Laws Per CA Court

January 1, 2016 by

violating minimum wage lawsHas Wal-Mart been violating minimum wage laws? Wal-Mart’s trucking system has gotten a great deal of attention recently, as a Wal-Mart driver has been charged with manslaughter for his role in the auto accident that left comedian Tracy Morgan severely injured. However, California employers would be well advised to take note of a different court case involving Wal-Mart and trucking – Ridgeway v. Wal-Mart Stores, Inc. – which has set some important precedents regarding minimum wage standards.

The case involves a group of Wal-Mart truck drivers who sued their employer, on the grounds that they were not paid minimum wage for all of the hours that they worked. They alleged that Wal-Mart should have paid them at least minimum wage for the time they spent on mandatory layovers, and on activities such as fueling, making inspections, and finishing their paperwork. Wal-Mart argued that the drivers were not entitled to minimum wage for time spent on layovers, and that the aforementioned activities were subsumed within other activities for which the drivers were paid at least minimum wage.

When the plaintiffs filed a motion for summary judgment on whether Wal-Mart’s payment policies were in compliance with California law, the U.S. District Court for the Northern District of California granted their motion. The Court’s order included the following findings:

  • The Court rejected Wal-Mart’s claim that activities like fueling, making inspections, and finishing paperwork could be subsumed into other activities. The order states that employers are not allowed to “build in” time spent on non-driving activities into a piece-rate compensation system, but instead must pay employees such as the plaintiffs at least minimum wage for all hours worked.
  • The Court held that Wal-Mart was required to pay the drivers the minimum wage for time spent on layovers. Wal-Mart, which paid the drivers $42 total for 10-hour layovers, argued that the drivers were not subject to their control during their layovers, but the Court rejected this argument. According to the order, the drivers were subject to their employer’s control during layovers because Wal-Mart prohibited the employees from spending the layovers at home, and set limitations on where the layovers could take place.
  • Wal-Mart pointed out that general transportation managers provided discretionary payments to drivers at times. The plaintiffs argued that while the payments may be relevant to the amount of damages, they were not relevant to the motion for summary judgment. The Court agreed with the plaintiffs and stated that the discretionary nature of the payments demonstrated that they were not indicative of Wal-Mart’s standard pay policy.

Could Your Business Be Violating Minimum Wage Laws?

If you run a business in Sonoma County, Mendocino County or Lake County California with a piece-rate compensation system, it may be time for you to take a close look at whether your policies comply with the law. If you work as a truck driver in California and you have not been paid minimum wage for all of your work hours, you may wish to look into whether you have a case against your employer. [Read more…]

Filed Under: Blog, California Labor Law Tagged With: , , , , , , , ,

Does Former USC Coach Sarkisian Have A Discrimination Case

December 18, 2015 by

discrimination caseDoes former USC Football Coach Steve Sarkisian have a discrimination case? Steve Sarkisian was fired from his position as head coach of the University of Southern California (USC) football team in October, after incidents during which he allegedly appeared at events intoxicated. Sarkisian has now filed a wrongful termination suit against USC, alleging (among other claims) that the university discriminated against him on account of his alcoholism.

The circumstances of the firing are unclear. Sarkisian claims that he asked athletic director Pat Haden for time off to seek treatment for alcoholism, and in response Haden placed him on indefinite leave. According to Sarkisian’s complaint, he was then “kicked to the curb” less than a day later, when he was notified of his firing via email while he was traveling to a rehabilitation program.

However, USC issued a public statement in response to Sarkisian’s allegations that portrays the matter differently. According to USC, Sarkisian never acknowledged that he had a problem with alcohol and refused help when the university offered it. USC also claims that it provided Sarkisian with written notice that he would lose his job if there were further “incidents.”

Was Sarkisian’s Firing Justified or is a Discrimination Case a Possibility?

The discrimination case deals with some complex issues surrounding discrimination law. Under both the Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA), alcoholism is a protected disability. It is illegal under both statutes to discriminate against an employee based on the stigma of alcoholism or based on past alcohol use. However, an employee is not protected when it comes to current alcohol abuse or misbehavior that arises from alcohol abuse.

Sarkisian’s complaint acknowledges that he “appeared” inebriated at a USC fundraising event called Salute to Troy and that he uttered an obscenity at the event. Sarkisian claims that he drank two beers and then took two prescription anxiety medications, and that his behavior stemmed from the mixture of the medication and the alcohol in his system. This event could prove to be crucial to the case. If the finder of fact determines that this constituted Sarkisian being intoxicated at work, then the incident could be seen as a justifiable reason for termination.

However, if the finder of fact determines that Sarkisian was fired for seeking treatment for alcoholism, then his termination could be seen as discriminatory. It is generally considered a violation of the ADA as well as FEHA to fire an employee under such circumstances. [Read more…]

Filed Under: Americans With Disabilities Act, Employment Discrimination, wrongful termination Tagged With: , , , , , , , ,

Employee Searches and Overtime Law – Employment Law

December 4, 2015 by

overtime law, employee searchesEmployee searches and overtime law. Imagine you work in a store that has had problems with employees stealing valuable merchandise. The store now has a policy that when an employee leaves at the end of a workday, any bags that he or she brought into the store will be searched. As such, after you punch out at the conclusion of each shift, you wait while a security guard goes through your bags.

When you were hired, you signed a contract allowing the store to search your bags. But you think it is unfair that you are not being paid for the time you spend waiting while the searches take place. Do you have a valid labor complaint?

According to the U.S. District Court for the Northern District of California, the answer is no. In Frlekin v. Apple, the Court recently dismissed a class-action suit filed by Apple employees who sued Apple for compensation for occasions when Apple searched their bags and verified ownership of their electronic devices. The employees argued that the time during which the searches took place should be considered “hours worked” under the standards of Wage Order 4.

Required Activities vs. Optional Activities

The Court sided with Apple and granted summary judgment, holding that the searches did not constitute hours worked. The court applied the traditional test of the control theory of liability, which takes into account whether the employer restrained the actions of an employee, and whether the employee has no plausible way to avoid the activity. The ruling states that while the plaintiffs demonstrated that Apple restrained their actions during the searches, the second prong of the test was not satisfied because the employees could avoid the searches if they did not bring bags into the stores where they worked, and thus the searches were optional.

The Court cited other cases such as Overton v. Walt Disney Co., in which employers were not required to pay for time spent by employees off the clock. Overton involved a Disney employee who sought compensation for time on a shuttle bus that carried him from an off-site parking lot to Disneyland’s employee entrance. The complaint was rejected because the worker had other options for getting to the employee entrance, such as walking from the parking lot, which was a mile away. The ruling rejected the employee’s argument that the shuttle bus was the only practical method of transportation.

In Frlekin, the Court also pointed out that none of the plaintiffs argued that they brought bags to work based on special needs – even though the class notice invited members with special needs to assert such a claim. The Court held that the plaintiffs were all in a position to freely choose to not bring bags to work.

Overtime Law and Wage and Hour Claims

If you are facing any type of wage and hour claim, or you are considering filing one, the employment and labor law attorneys at Beck Law P.C. in Santa Rosa can help. They serve clients in Santa Rosa, Petaluma, Ukiah, and all of the North Bay Area counties.

Filed Under: Blog, Overtime Violations Tagged With: , , , , , , ,

EEOC Age Discrimination Lawsuit Filed against Milpitas

November 26, 2015 by

age discrimination lawsuitA Federal age discrimination lawsuit has been filed against the City of Milpitas. Why? Well, many employers make hiring decisions using a points system in which points are assigned to applicants based on their attributes, such as experience and education. Using a system like this can be helpful, not only when it comes to making the best decisions, but also in defending their hiring choices if there is an accusation of discrimination.

However, the use of such a system can present a major problem for an employer when a discrimination complaint is filed – if the applicant chosen wasn’t the one who received the most points.

Officials in the city of Milpitas, California – located between San Jose and Fremont – chose to hire a candidate for an administrative position even though four older candidates had higher scores. The city is now facing a federal age discrimination lawsuit filed by the Equal Employment Opportunity Commission (EEOC).

The Milpitas Age Discrimination Lawsuit

The lawsuit alleges that the city violated the Age Discrimination in Employment Act (ADEA) in 2013 when it hired Rachel Currie, who was then 39 years old, as executive secretary to the city manager. A review panel had ranked the applicants for the position according to a 100-point scale. The panel gave Currie a score of 82.33. Four other women who had applied for the position, who were between the ages of 42 and 58, had received higher scores. (According to the San Jose Mercury News, an additional applicant named Lori Casagrande was also turned down for the position, but she is not part of the EEOC’s lawsuit, as she is seeking a private lawsuit against the city.)

The ADEA is a federal law prohibiting age discrimination against employees who are 40 years of age or older. The EEOC found in 2014 that there was reasonable cause to believe that Casagrande and the four women named in the lawsuit were all victims of age discrimination in violation of the ADEA. After issuing the finding, an attempt at conciliation failed, with the parties unable to agree to a settlement, which led the EEOC to sue the city in the District Court for the Northern District of California.

The EEOC is seeking damages for the applicants, as well as injunctive relief seeking a change in the city’s hiring practices. According to William Tamayo, the Director of the EEOC’s San Francisco District, the front and back pay for the four defendants is about $200,000.

Avoiding the High Costs of Litigation

23% of the claims filed with the EEOC in 2014 were age discrimination complaints. The costs of defending these suits can be tremendous, and yet many businesses do not have policies in place to deal with the issue of age discrimination.  [Read more…]

Filed Under: Age Discrimination, Blog Tagged With: , , , , , , , , , , ,

CA Appeals Court Arbitration Waiver Ruling

November 25, 2015 by

arbitration waiverMario Garrido signed and arbitration waiver when he was hired as a truck driver for American Air Liquide, Inc. in Santa Fe Springs, California. The arbitration waiver required him to resolve any disputes with his employer via arbitration and included a provision prohibiting class arbitration.

After Garrido lost his job, however, he filed a class action complaint against Air Liquide, alleging that he and his co-workers were subjected to a variety of unfair labor practices. Air Liquide responded by filing a motion to compel arbitration, but the trial court denied the motion, holding that Garrido had a right to file a class action claim. Air Liquide appealed.

On October 26, 2015, a California Court of Appeal upheld the decision, siding with Garrido. The ruling, Garrido v. Air Liquide Industrial U.S. LP, established several important precedents for cases involving arbitration waivers in the following areas:

To Whom Does the Federal Arbitration Act Apply?

The arbitration agreement that Garrido signed when he began working for Air Liquide stated that it was governed by the Federal Arbitration Act (FAA). Garrido argued that this provision was invalid because the FAA itself states that it does not apply to transportation workers. Air Liquide argued that Garrido should not be considered a transportation worker because Air Liquide is not in the transportation industry.

The Court of Appeal agreed with Garrido and held that as a truck driver, he was excluded from the FAA. The ruling states that a truck driver is a transportation worker, regardless of who owns the goods that the driver transports.

Can the CAA Apply Automatically?

The California Arbitration Act (CAA) was not mentioned in the arbitration waiver. Garrido argued that, in light of this, it could not apply to his case, but the court disagreed. The ruling holds that the CAA can be enforced even when it has not been explicitly mentioned in an arbitration agreement.

Garrido argued that because Air Liquide’s motion to compel arbitration dealt with the FAA, and not the CAA, Air Liquide lost its right to compel arbitration under state law. The court disagreed with this, as well, pointing out that Air Liquide had never argued that the CAA would not apply.

Can the State Refuse to Enforce a Class Arbitration Waiver in a Non-FAA Case?

Garrido argued that, even though the arbitration agreement contained a class waiver, his class action suit should nonetheless be allowed to proceed. While the California Supreme Court recently held the FAA prevents the state from striking down class waivers for public policy reasons, that decision did not address whether it would be appropriate in a CAA case.

The Court of Appeal used the four-factor test applied in Gentry v. Superior Court, which is based on:

  • The size of potential individual recovery,
  • The potential for retaliation against class members,
  • Whether absent members of the class may be unaware of their rights, and
  • Obstacles to the use of individual arbitration.

After applying the test, the Court of Appeal agreed with the trial court that a class proceeding would be more effective than individual arbitration. [Read more…]

Filed Under: Binding Arbitration, Blog, California Employment Law Tagged With: , , , , , , , , ,

California Unlawful Discrimination Precedent Set By “Desperate Housewives” Case Ruling

November 20, 2015 by

unlawful discriminationCalifornia unlawful discrimination precedent established. In 2004, actress Nicollette Sheridan signed a contract with Touchstone Television Productions to play the role of Edie Britt on the television series Desperate Housewives. In 2008, she complained to Touchstone that the show’s creator, Marc Cherry, physically assaulted her during a rehearsal. When she learned that her contract was not being renewed for another season, she filed a complaint against Touchstone.

Sheridan’s original claim stated that she had been fired because she complained about the alleged assault, and argued that her firing was a wrongful termination in violation of public policy. Her claim went to court, where a mistrial was declared after the jury was unable to make a unanimous decision.

Sheridan then amended her claim, arguing that her firing amounted to retaliation under Section 6310 of the California Labor Code. In 2013, her case was dismissed, on the grounds that she was required to exhaust her administrative remedies under Sections 98.7 of the California Labor Code before she could sue under 6310. However, on October 20, 2015, a California Court of Appeal overturned that ruling.

The Appellate Court Weighs in

The Court of Appeal ruled only on the issue of whether Sheridan was permitted to file a lawsuit under Section 6310 without first exhausting her administrative remedies under Sections 98.7 and 6312. The decision held that she was not obligated to exhaust these remedies and allowed her complaint to proceed.

Section 6312 states that an employee may file a claim with the California Labor Commissioner under 98.7 if he or she alleges unlawful discrimination under 6310 or 6311. 98.7 states that an employee may file a complaint with the Labor Commissioner within six months of an alleged violation of any law under the Labor Commissioner’s jurisdiction.

The Court of Appeal’s decision holds that the use of the word “may” in Sections 98.7 and 6312 (as opposed to “shall”) indicates that filing a complaint with the Labor Commission was permitted, but not mandatory. In addition, the ruling points to the language used in subdivision (g) of Section 98.7, which states that the law has no requirement that a complainant exhaust administrative remedies.

The decision also cites the case of Lloyd v. County of Los Angeles, in which a public employee argued that he was wrongfully terminated in violation of Section 98.7. In that case, an appellate court rejected the County’s argument that the plaintiff was obligated to exhaust his administrative remedies. The Lloyd ruling stated that plaintiffs suing under the California Labor Code do not have an administrative exhaustion requirement.

What Does This Mean for Future Unlawful Discrimination – Wrongful Termination Lawsuits?

Since Sheridan filed her complaint, the California Legislature has amended the Labor Code to explicitly state that complainants do not have a requirement to exhaust their administrative remedies. The ruling described above asserts that there is no such requirement even for a complaint that was filed before these amendments went into effect in January 2014. [Read more…]

Filed Under: California Employment Law, wrongful termination Tagged With: , , , , , , , , , ,

How to File a California Fair Employment and Housing Act Discrimination Claim

September 10, 2015 by

fair employment and housing act discriminationHow can I file a California Fair Employment and Housing Act Discrimination Claim? If you work in the state of California and you believe that you have been the victim of employment discrimination, you do not have the immediate option of filing a lawsuit against your employer. You must first pursue a claim on the state level by filing a claim with the California Department of Fair Employment and Housing, also known as the DFEH, or the federal level by filing a claim with the Equal Employment Opportunity Commission, also known as the EEOC.

If you choose to file a complaint with the DFEH regarding a matter that falls under the jurisdiction of the EEOC, then your complaint will also be filed with the EEOC automatically.

Filing a Discrimination Claim with the DFEH

If you choose to pursue a claim on the state level, alleging a violation of California’s Fair Employment and Housing Act (FEHA), you should be aware of the steps involved in the complaint process.

The Interview

When you contact the DFEH, they will schedule a time to interview you about your case. The DFEH provides a written questionnaire and they ask that complainants fill it out and send it in prior to their interviews.

Filing the Complaint

After the interview is complete the consultant who conducted the interview will draft a formal complaint that may or may not be accepted for investigation. The respondent (that is, the employer you have filed a complaint against) will be required to answer the complaint.

The respondent will be given the opportunity to resolve the complaint voluntarily, and the DFEH will attempt to facilitate a voluntary settlement. If a respondent makes an offer that the DFEH feels is reasonable and the complainant rejects it, the DFEH may choose to take no further action on their complaint.

The Investigation

If your complaint has been accepted for investigation, the DFEH is required to perform the investigation in a standard, timely manner. If the investigation does not show that the respondent violated the law, then the case will be closed. If the investigation shows that the respondent violated the law, then the DFEH may issue an accusation of discrimination.

Conciliation

If the investigation shows that there was a legal violation, there will be formal conciliation conferences. At a conciliation conference, the DFEH will present its conclusion that the respondent violated the law and there will be an attempt to reach a settlement between the parties. If there is no settlement, then the complaint may reach the litigation stage.

Litigation

The DFEH may choose to prosecute the respondent. If this occurs, the respondent may choose to either have the case publicly litigated before the Fair Employment and Housing Commission or moved to civil court.

Remedies

When a complainant is successful in litigation, there are a wide array of remedies available to him or her, including back pay, emotional distress damages, and reinstatement to his or her job. [Read more…]

Filed Under: California Labor Law, Employment Discrimination Tagged With: , , , , , , , , ,

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