CVS $7.5M Wage Deal to Cover One Thousand Pharmacists

Final approval has been granted for the $7.4 million settlement between CVS Pharmacy, Inc. and the class of over 1,000 pharmacists. Pharmacists lodged allegations of unlawful denial of overtime pay when working over six days consecutively. The final approval hearing was held in Los Angeles Superior Court with Judge Elihu M. Berle granting the final approval for the proposed settlement.

Pharmacists included in the class action work or previously worked in three different CVS California regions. They filed a claim that they worked the “seven-day week,” but were not paid overtime. The judge noted that the plaintiffs believed they had viable claims, but that they were also aware that CVS did not believe their practices were in violation of wage and hour laws. The judge felt the settlement was fair and reasonable and that the plaintiffs were appropriately weighing the benefits of prevailing against risks posed by trial and potential delays of appeals, etc.

No class members objected to the settlement. Only seven class members opted out. Claims were filed for 85% of workweeks at issue in approving the settlement/deal. Plaintiffs’ request for attorneys’ fees of $2.49 million was also approved by the judge.

The three suits were filed in October 2013 alleging violations of California labor code on the part of CVS pharmacy due to requirement of pharmacists working over six days in a row without payment of overtime (time and a half for any hours worked on the seventh day of consecutive work). Preliminary approval was granted by Judge Berle in July after parties used the help of a mediator to come to a tentative agreement.

The agreement will result in each class member receiving approximately $2,846. The actual amount will depend upon the number of workweeks the pharmacist worked during the time period designated by the class action.

If you have questions regarding the class action process or any other southern California employment law issue, please get in touch with the attorneys at Blumenthal, Nordrehaug & Bhowmik today. We can answer your questions and provide you with the legal counsel you need. 

Quest Diagnostics Faces Allegations of Failure to Pay Overtime

The calculation of overtime requires that employers include any “extra” pay such as commissions or bonuses. When employers fail to do so, they are in violation of the Fair Labor Standards Act (FLSA). This is the issue that Quest Diagnostics faces in the class action overtime suit they are currently up against.

Lead plaintiff in the class action (Avila v. Quest Diagnostics Clinical Laboratories Inc. et al.) claims that the Company did not provide proper pay to hundreds of hourly employees. They failed to include automatic incentive payments when they completed overtime rate calculations. The named plaintiff was a referral assistant and testing assistant in the West Hills, California location. She claimed her typical work week was over 40 hours. She also alleges that when she was paid overtime, her non-discretionary bonuses (called “Recognition Quest” and “Goal Sharing Bonus” at Quest Diagnostics) were not included when they calculated her regular rate of pay. This is in violation of state employment law as well as federal law (Fair Labor Standards Act or FLSA). She states that her employer miscalculated overtime in this way as a matter of policy. She also claims that over 500 workers can be included in the class that are or were affected by policies and practices addressed by the suit. The lawsuit alleges violations of both FLSA and California Labor Law. It also alleges violations through failure to provide timely wage payment when employment is discontinued and additional violations of California Unfair Competition Law.

Employers should remember that sums employees derive from employment (whether “promised” to them or stated in employment policy, i.e. commissions, earned bonuses, etc.) have to be included when completing calculations of the regular rate (or base rate of pay) in relation to overtime pay. When this is not handled correctly, employers can expect to eventually face a FLSA collective action like the one Quest Diagnostics is currently handling.

If you have questions regarding overtime pay calculations or class action status, please get in touch with the southern California employment attorneys at Blumenthal, Nordrehaug & Bhowmik.

Target’s $39M Settlement to Card Issuers’ Regarding Data Breach Claims

A class of banks that sued Target Corp. over the huge 2013 data breach has agreed on a settlement amount of $39 million. The settlement will resolve the long-running dispute. It also goes down in history as the first ever class-wide data breach pact reached on behalf of financial institutions. In the 2013 data breach, over 40 million payment cards that were used to make purchases at Target over the course of a specific three week period were compromised. This occurred during the 2013 holiday season.

The terms of the settlement obtained preliminary approval within two hours of the deal being disclosed. According to the terms of the settlement, Target will pay up to $20.25 million directly to class members. The additional $19.1 million will be paid to fund MasterCard’s Account Data Compromise Program in connection to the breach.

The settlement is applicable to all U.S. financial institutions that issued payment cards that have been identified as “at risk” due to the breach so long as they did not already release their claims against the retailer by signing onto deals with other card brands.

Attorneys for the plaintiff indicated that they felt the agreement was an important result not only because it provided compensation well beyond what the card brand networks offered, but because it will set a precedent that the financial institution behind the method of payment is not always the one to be held responsible for extensive costs in connection to merchant data breaches.

The consolidated class action complaint that resulted in the settlement was filed in August 2014 by Umpqua Bank, Mutual Bank, Village Bank, CSE Federal Credit Union, and First Federal Savings of Lorain. The complaint made allegations that Target was negligent in their responsibilities to protect financial institution data on behalf of their customers and that they violated the Minnesota Plastic Card Security Act.

If you have questions regarding the class action process or any other southern California employment law issue, please get in touch with the attorneys at Blumenthal, Nordrehaug & Bhowmik today. We can answer your questions and provide you with the legal counsel you need. 

New Obstacles for California Employers after “Black Swan” Internship Case

July 20, 2015 - California internships in the past have been viewed as a trade-off between well know, desirable employers and young students interested in the industry. The employers get workers and the interested students get experience in their chosen field. Many college students and recent graduates vie for a limited number of highly coveted internship positions in Hollywood and Silicon Valley. Companies offer unpaid positions (internships) and students and new grads vie for the chance to start building a relevant network. The simultaneously beneficial nature of the internship means there has been a limited amount of litigation related to the arrangements. But as of 2013, there’s a ruling that is affecting the symbiotic relationship between employers and interns.

In 2013, a federal District Court in New York found that interns of the movie Black Swan were entitled to pursue a class action. The class action seeks millions of dollars for unpaid wages, overtime, etc. Studios and tech business employers are taking note.

With Glatt v. Fox Searchlight Pictures, Inc., the U.S. Court of Appeals for the Second Circuit attempted to answer the basic question, what is an intern? There are interns across the county, but there is a surprisingly limited amount of actual law related to this particular workplace relationship. The Second Circuit’s decision actually turned on a case from almost 70 years ago regarding railroad apprentices. California employers are discovering that the direction this particular discussion is taking holds both good news and bad news for the future of their workplaces.

The Good News: According to the Second Circuit’s decision, wage-hour cases in relation to interns are rarely subject to resolution in a class action or collection action due to the highly individualized nature of the setup.

The Bad News: Fox, the studio that produced the movie, convinced the court to impose a test to determine who the primary beneficiary of the intern/employer relationship is. This test was to be used to determine whether the worker was an intern or an employee. The court put together 7 non-exhaustive questions for a trial court to consider when attempting determining if a worker is an intern or an employee.

1. Is there a clear understanding that there is no expectation of compensation for work performed?
2. Does the internship offer any hands on training or clinical experience as would be provided by a school?
3. Is the internship a part of the coursework of the “intern”/will they receive academic credit?
4. Does the internship coincide with the academic calendar?
5. Is the internship limited to the time period during which the setup would provide beneficial learning opportunities?
6. Does the intern’s work compliment or replace the work of paid employees?
7. Is there a clear understanding that the intern is not entitled to a paid job once the internship is completed?

The primary beneficiary test is bad news for employers who offer internships with limited educational benefits for interns or for those whose interns are performing work that would be completed by employees in their absence. The opinion of the court indicated that the more menial the work assigned to an intern, the less likely that they would legally be considered an intern. Employers, particularly those in tech and entertainment industries, are finding that they need to rework their model in order to suit this new finding. It’s the first significant appellate opinion on this issue, but it will not be the last. There are other intern related cases on appeal and awaiting decision by other courts throughout the nation. In California, the opinion will probably have a fairly lasting impact. California employers are already hustling to bring their internship programs up to snuff. Interns considered employees might very well begin seeking to recover unpaid wages, overtime, etc. in accordance with the penalties of violating the California Labor Code.

If you are unsure what constitutes a valid internship or if you need additional information regarding being misclassified as an intern instead of an employee, contact the southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

$8.7 Million Settlement Paid to 19,000 Temps for Pay Stub Claims Against Manpower, Inc.

July 15, 2015 -Pay stub claims filed by over 19,000 temp workers against Manpower, Inc., an operator of a temporary-employment agency, resulted in a settlement of $8.7 million. A California federal judge approved the settlement amount on June 20, 2015. The workers who filed suit against the temp agency claim that Manpower, Inc. did not provide them with accurate wage statements as required by law. 

U.S. District Judge Jon S. Tigar granted final approval of the settlement as well as partially granting the motion plaintiffs’ made regarding their attorneys’ fees, costs, etc. The agreed upon settlement amount falls between 30 and 35% of the recovery that the counsel of the proposed class estimated as a likely result of the case.

What is a Pay Stub Claim?

California labor law lays out requirements for California employers. They are required to provide certain information on each employee’s paystub. The failure to provide the required information can result in a paystub claim or paystub violation lawsuit. These can result in fees or penalties charged to the employer. In the case of Manpower, Inc. the consequence was quite substantial.

For Instance: Information that Must be Included on an Itemized Statement

1. Name of the employee
2. ID Number (i.e. last four of social security number)
3. Gross wages
4. Hours worked
5. If employee is paid on piece rate basis – number of units and piece rate
6. Deductions
7. Net wages
8. Pay period by date
9. Name and address of employer
10. Hourly rates and hours worked at each specified rate 

If you need to talk to a southern California employment law attorney regarding potential pay stub violations, contact Blumenthal, Nordrehaug & Bhowmik.

Guide Dog Discrimination Lawsuit Against Uber Moves Forward

June 22, 2015 - There has been a recent wave of complaints aimed at the popular driving service, Uber (and similar services). In response, there could be a new ruling that raises the bar for accountability amongst such driving services. In fact, the ruling could raise the bar for all tech companies; not just those related to ride-hailing services.

A federal judge in San Francisco allowed the National Federation of the Blind of California (NFB) to file suit claiming that Uber actively discriminates against visually impaired guide-dog users. Allegations indicate that Uber drivers have refused to provide rides for passengers who have service animals in use, which is in violation of ADA laws. The suit claims that drivers have also denied transport to blind individuals without service dogs. In addition, other instances are cited in which the blind individual and their service dog were allowed to utilize the ride service, but the service animals were allegedly mistreated during the drive time. The original civil complaint cites over 30 instances of discriminatory action towards blind people and/or their service animals.

One instance of harassment involved the Uber driver forcing the guide dog of a blind woman named Leena Dawes into the trunk of the sedan before transporting Ms. Dawes. When she realized where the Uber driver had placed her dog, she asked repeatedly if they could pull over so she could retrieve her dog from the trunk, but the Uber driver denied her requests. This is just one of the many instances noted in the suit.

Uber requested the case against them be dismissed on the basis that due to contracts in place, users are required to take complaints/disputes to arbitration and argue as individuals not in the form of a class action lawsuit. They also argued that due to their unique service, they can’t be classified as “public accommodation” and therefore shouldn’t be held liable for ADA requirements.

This reasoning was tossed out by a federal judge who stated that the NDF could more forward with the suit on behalf of those members who have not yet signed the mentioned Uber contracts. This refers to class action lawsuit members who have not necessarily used the Uber service yet.

Other related legal news includes:

• Uber came under fire last March when their app was rendered useless to blind users after a software bug. They failed to fix it for a number of months.
• An ongoing suit in Texas argues the question of whether or not Uber offers sufficient access for users in wheelchairs.
• Lyft was sued as well, but settled out of court.
• Leap, the San Francisco private bus start up with a $6 fare, found themselves the focus of a suit due to the fact that they don’t provide wheelchair access.

Services such as Lyft, Uber and Leap are important as they make integration more convenient and accessible (through low pricing) for vision-impaired individuals. Most new smartphones’ built-in screen reading functionality makes the app based ride services an excellent option that allows for greater independence when traveling.

Many are hoping that the San Francisco ruling will set a precedent that will leave new, app-based services such as Lyft and Uber, etc. accountable to the same civil rights laws as other businesses and ride services.

For additional news and information on discrimination lawsuits or class action suits, contact the southern California employment law experts at Blumenthal, Nordrehaug & Bhowmik.

Workplace Claims: Should Workers Be Paid for Mandatory “Call Ins?”

June 1, 2015 - Victoria’s Secret Stores LLC workers are raising the question of whether or not retail employees who are required to call in to see if a shift is available or not should be paid simply for the mandatory call. It’s a new type of workplace claim that will be put to the test in federal appellate court.

Plaintiffs in the putative class action lawsuit seek payment for mandatory calls in their workplace. The petition for interlocutory appeal to the 9^th U.S. Circuit Court of Appeals followed a rare grant from U.S. District Judge George H. Wu to file due to what he referred to as the “novelty” of the legal question being presented.

Since the only precedent for the case is Judge Wu’s original dismissal followed by his grant to file for interlocutory appeal, the 9^th Circuit holds a lot of power in their hands. They will be the deciding factor. The employment law industry will either see this new and “novel” issue nipped in the bud or they could see an entirely new and fertile area for workplace grievances leading to worker lawsuits. This case could result in a new area of claims for employees as many large chains have call in policies for their workers.

The lawsuit was filed by Mayra Casas and Julio Fernandez. The suit is based on California’s reporting time laws requiring a minimum amount of pay when an employee is required to report to work, but they aren’t needed or no work is available at the appointed time. California is one of eight states with similar reporting time laws (including New York). The California reporting time laws guarantees employees will receive up to 4 hours of pay when they report for an 8-hour shift that is cancelled, resulting in the employee being sent home without working. Up until this point, the focus has been on employees who physically report in to their workstations. Whether or not similar guarantees should be in place for call in claims is the current question.

In the current lawsuit between Victoria’s Secret Stores LLC and Casas/Fernandez, it has been pointed out that employees abiding by the retail chain store’s call in policy must arrange their entire schedule around the need to call in 2 hours prior to a potential shift. Sometimes employees are required to do so up to five times in one week. Legal representation for the plaintiffs are pointing out the difficulties this poses in regards to scheduling daycare, etc. as proof of the need for a change.  

For additional information on California workplace claims and California reporting time law, contact the southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.