Does California’s Wage Order 7 require retailers to pay employees required to call ahead two hours before their “on-call shift,” even if those workers aren’t required to come in to work? That was the question recently at issue in the case of Ward v. Tilly’s Inc., wherein a California appellate court (in a divided opinion) reinstated a class action lawsuit against an Orange County retailer for alleged failure to do so.
According to the complaint, workers say they were required to call in two hours before each previously-scheduled “on-call shift.” Orange County wage and hour lawyers know this is common practice among retailers, designed to optimize scheduling in an industry where staffing needs can fluctuate not only seasonally, but weekly, daily and sometimes hourly.
In this case, the employer in question did not consider those employees who called in an told not to report to work as having “reported for work” within the meaning outlined by the relevant Wage Order 7. The employees disagree.
The trial court sided with the employer and dismissed the claim, finding the only way an employee could “report for work” was by physically showing up for work at the store. Continue reading
Back in November, the U.S. Department of Labor rescinded the controversial Obama-era 80/20 Rule, dictating how restaurants paid tipped workers, barring employers from taking tip credit from workers who spend more than 20 percent of their time doing non-tipped work. Now, Orange County fair wage attorneys understand a federal judge for the U.S. District Court for the Western District of Missouri rejected the DOL’s guidance, finding it “unpersuasive and unworthy.”
The judge further stated that the Labor Department’s issuance of an opinion letter abruptly shifting gears on this issue after 10 years of consistently construing such regulation as limited by the 80/20 rule wouldn’t persuade the court to apply a new interpretation of litigation. Noting the DOL gave zero reasoning or evidence of any in-depth consideration for reversing its position, and it doesn’t stand up to the standard set by the U.S. Supreme Court, and characterized the November rule change as a “sudden surprise” and an “unjustified departure” from the agency’s previous guidance.
Per the Fair Labor Standards Act, 29 USC s. 201, employers must pay workers at least $2.13 hourly for their wages, then take a tip credit in order to make up the difference between the worker’s wages and federal minimum wage. The 80/20 rule arose because tipped workers were spending an extensive amount of time carrying out non-tip-generating duties, like rolling silverware or setting tables. The updated guidance from the DOL was that the agency was no longer going to limit the amount of time workers could spend performing those duties. Continue reading
Flight attendants for two major airlines based in the U.S. recently won a $77 million federal class action wage and hour lawsuit in California, which in addition to damages, restitution and penalties includes a $3,550-a-day interest for each day since last October, when plaintiffs had to submit an accounting of what they were owed. An estimated 1,400 flight attendants will receive pay for California wage and hour violations that included unpaid working hours, unpaid overtime, failure to receive accurate wage statements and denial of breaks as required by state statute.
The judge for the U.S. District Court for the Northern Court of California had already granted judgment on the airline’s liability back in 2017, but an accounting of employee damages hadn’t been included in that ruling.
California wage and hour lawyers know the damage award in this employee lawsuit is important because the airlines had fought hard to assert federal deregulation trumped state law, and that the workers wrongly filed their claims in California – knowing they favor employees compared to other states – when in reality the claims didn’t arise in California but in many other parts of the world. The court did rule that passport expenses would not be reimbursed per a San Francisco statute (they lived and trained elsewhere) but the judge denied the other claims were improperly filed, citing executives’ policy decisions made exclusively from a California headquarters – standards that were followed globally company-wide. Continue reading
A California wage theft lawsuit filed on behalf of 240 workers is being settled for $690,000, having been given the preliminary approval from a superior court judge recently. Final approval of the deal is expected in April, according to BerkleySide.com. As our Los Angeles restaurant wage theft attorneys know, the restaurant industry is notorious for a host of labor law violations, ranging from failure to pay overtime, denying meal breaks, skimming hours from time sheets or failing to pay for work-related responsibilities . The U.S. Department of Labor’s wage-and-hour division reported that roughly 84 percent of full-service restaurants investigated between 2010 and 2012 had violated labor law standards, including wage and tip violations.
This class action litigation was pursued by workers such as prep cooks and dishwashers at a chain taco restaurant, where current and former employees say they were cheated out of fair wages and subjected to other labor law violations.
According to the initial complaint, Martinez et al v. Gordo Taqueria et al, the lawsuit alleges that for at lest four years, defendants had a practice of distributing plaintiffs’ tips at the end of each calendar year or occasionally sometimes periodically throughout, requiring workers to pool their tips and unlawfully divide them amongst themselves in an a fashion that was arbitrary. Continue reading
Wage theft is a serious problem in California. As Los Angeles wage and hour lawyers, we have seen this play out in almost every industry and at nearly every level of employment, but it tends to occur most often to the most vulnerable workers. The fast-food industry is no exception. One way that companies try to sidestep the worst outcomes in these cases is to, where possible, bar workers from banding together in class action litigation. This is achieved through mandatory employment arbitration agreements, which have largely been upheld by the courts, up to and including the U.S. Supreme Court, via an early 20th Century law known as the Federal Arbitration Act.
However, using this tactic in a series of California wage theft lawsuits may have backfired in the case of one national fast-food chain, according to The Los Angeles Times. The story begins as so many do: Large, chain employers cutting corners of labor laws and allegedly committing wage theft is fairly common, as is the practice of mandatory employment arbitration. What makes the recently-highlighted situation different is that in trying to shield itself from a class action litigation for wage theft, the company may have effectively shot itself in the foot.
This particular fast-food chain has some 2,300 restaurant locations nationally, and it’s been battling some 10,000 claims of wage theft for the last six years. Last summer, the company won its motion filed in a federal court in Colorado to compel some 2,800 workers who filed lawsuits to instead participate in mandatory employment arbitration. However, employment lawyers for the company may now be wondering if this was the smartest move because now it is facing tens of thousands of individual arbitration proceedings across the country – proceedings it is compelled to pay for itself and which could cost tens of thousands of dollars each. The alternative of a class action lawsuit may not seem so burdensome considering it would require a single group of lawyers in one location, rather than thousands scattered before abitrators across the U.S. As it now stands, according to The Times, approximately 150 claims have been filed. Continue reading
Following a recent Southern California labor strike of nearly 2,000 subcontracted orange pickers from one of the largest fruit companies in the U.S., Los Angeles wage and hour attorneys are looking even more closely at this industry, wherein an increasingly substantial number of workers are employed by third-party labor contractors, rather than the farm companies themselves. As far as agricultural workers go, those in California enjoy some of the best labor law protections in the country. However, workers employed by these third-party firms are often exempted from some of the required protections they’d otherwise enjoy under state law, including overtime pay.
Much of it comes down to power disparities, the wink-and-nod regulators give to the companies that fulfill demand for undocumented workers and loopholes many farms have long exploited.
This most recent strike began after one of the state’s top citrus producers slashed the price-per-bin pay on mandarins harvested. Previously, they were primarily focused on so-called “clementines,” which are smaller, but then shifted more harvest work to the larger mandarins. The rate-per-bin was dropped from $53 to $48. The company told The Los Angeles Times this was due to a “seasonal shift,” but a farm union spokesman stated employees had always been paid the same per-bin rate, regardless of the variety they were picking. Continue reading
Nursing is a demanding profession, complete with grueling 12-hour shifts, dangerous conditions, dangerous patients and often seemingly very little time to stop for the restroom or eat a meal. Hospitals, nursing homes and rehabilitation facilities nationwide often require mandatory overtime as part of standard practice, given the nursing shortage the profession is experiencing, per the American Association of Colleges of Nurses. However, California law expressly prohibits mandatory overtime and nurses do have the right to refuse to work overtime and are protected from retaliation for their refusal. Nurses can’t be required to work more than 12 hours in a 24-hour period, the only exception being an emergency.
Further, under the federal Fair Labor Standards Act requires that all non-exempt employees are paid at least the federal minimum wage for all hours worked and overtime pay for any hours worked over 40 in a given workweek. Hospitals and any other institutions primarily engaged in the care of sick, aging or mentally ill are covered employers per Section 3(s)(1)(B) of the FLSA. Some health care facilities track employee hours in increments of 15 minutes, and the FLSA does allow these facilities to round to the nearest quarter hour for wage and overtime hour purposes. However, an employer who always rounds down may violate the minimum wage and overtime requirements.
Recently in Oregon, which has similar workplace protections for nurses in terms of wage and hour laws, a hospital system is being sued for failure to properly pay its nurses, denying them meal and rest breaks and improperly docking their wages. They’ve filed a federal class action lawsuit against the health care chain of hospitals, according to The Oregonian. The hospital allegedly failed to compensate non-exempt nurses for their work during meal breaks and also for work they performed while they were off-the-clock. Continue reading
For far too many car wash workers, the wages are washed out. Minimum wage in California is $11, set to increase to $12 on Jan. 1, 2019. In Los Angeles, where it’s well-known the cost-of-living is much higher, any employer with 26 employees or more must pay at least $13.25 hourly. Smaller employers in L.A. can get by paying $12 hourly.However, Los Angeles wage theft attorneys know throughout California and across the U.S., car wash owners aren’t coming clean with their workers.
One of the most recent cases of car wash wage theft took place right here in L.A., where The Drive reports employees at two Los Angeles car washes have won more than $1.6 million in back pay restitution, civil penalties and covered litigation costs/attorney’s fees. Additionally, the company’s owner will be subject to an injunction for four years, during which compliance with all California wage and hour labor laws and regulations must be assured.
The car washes, according to claims filed by the Los Angeles attorney’s office, are that the car wash operations short-changed an estimated 60 workers since 2014. Employee work hours were vastly under-reported. In some instances noted by attorneys, the company was compensating workers $45 for working a full 10-hour shift. The U.S. government currently has minimum wage is currently at $7.25. It’s higher in California (and also Los Angeles) because it’s very expensive to live/work/commute in this region. These car wash employees were being paid one-third the minimum wage they should have been earning for their hard work. Continue reading
Wage theft from California workers isn’t always about paying less than minimum wage. Sometimes, it’s failing to pay wages for expected duties the company doesn’t consider “work.” We saw this with factory workers required to spend upwards of 20 minutes daily donning and doffing their uniforms on site. More recently, we saw it with Starbucks in the six-year battle, ending in the California Supreme Court, over failure to pay for unpaid tasks like locking up after closing – something that only takes an extra 5-to-10 minutes daily, but multiplied across days, weeks, months and years and many thousands of workers adds up to significant skimming off the top.
Other recent California wage theft cases focused on so-called “call-in shifts” or “on-call work.” This is when workers are required to clear their schedules in the anticipation they might be needed if it’s a hectic night. However, in some cases, workers weren’t being paid despite re-arranging their schedules to adjust for the possibility.
California labor law separates this time into two different categories: Standby/ waiting time and response/ reporting time. The case law that established all this started with the U.S. Supreme Court’s 1944 case of Armour & Co. v. Wantock, though California has adopted several provisions and tests of applicability on its own.
Standby/ waiting time is time the employee is required to remain at an employer’s place of business and respond to emergency calls. Workers are required to be paid for all of this time, though the rate can change, particularly if the standby time is “uncontrolled” by the employer and is otherwise free time. Response and reporting time is that wherein employee is required to respond to a call or text – that has to be paid also, with the worker responsible for keeping track. As Los Angeles wage theft attorneys can explain, only de minimus work (literally one or two minutes) isn’t compensable. For every day the worker is required to report to work and does report to work but isn’t paid, employees are paid half the usual wage for that shift – but in no event for less than two hours or more than four hours. If a worker is required to report back to work on any given day and only works for two hours are less, they are to be paid at their regular pay rate (not less than minimum wage) for those two hours. Continue reading