Amazon May Have Beat the Class Action, but Still Has to Deal with Joint Employer Issue

In recent news, Amazon ended up beating the class action because the proposed driver class didn’t have enough in common, but the individual wage, overtime and meal break claims survived. Class claims were dropped in the delivery driver lawsuit that sought wages, overtime and relief for a number of different alleged labor violations. But the question of whether or not Amazon and other big businesses could be exposed to significant liability remains.

On December 6th, a federal judge found that California Amazon drivers could not seek class status because proposed class members (including current and former employees of Amazon and a number of staffing businesses subject to Amazon delivery guidelines) didn’t have enough in common. The federal judge on the case, Judge Maxine M. Chesney, of the U.S. District Court for the Northern District, did leave room to for a potential finding that Amazon is a joint employer alongside 1-800-Courier. If the curt were to come back with a joint employment finding, it would mean that both Amazon and the courier company were Jasmine Miller’s (the plaintiff) formal employers. This precedent would leave major businesses regularly depending on contracted or subcontracted labor in California facing significant implications.

The judge stated that Miller’s working conditions (as an alleged joint employee of Amazon and 1-800-Courier) may not match the working conditions of other drivers at Amazon contractors who are also allegedly jointly employed. This resulted in a failure of the test for class action status requiring that all putative class members face essentially the same experiences and conditions.

Miller is moving forward with claims that she was not paid minimum wage, overtime wages, provided required meal breaks and rest periods, and accurate wage statements. Miller has until January 4th, 2019 to amend her class complaint per Judge Chesney. The judge added that the joint employment will likely hinge on an assessment of how much control Amazon has over the working terms and conditions of employees at the courier company (or other similar companies providing Amazon with workers).

If you have questions about California employment law or if you need to discuss overtime violations, or wage and hour violations in the workplace, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

More Employees Continue to Come Forward in Google Age Discrimination Case

Almost 300 people have come forward to join the class action lawsuit against Google alleging age discrimination in the workplace. The lawsuit originated in 2015 and was originally filed by Robert Heath. The lawsuit was certified as a class-action a year later in 2016.

Cheryl Fillekes joined the case in 2015. She alleged that due to her age, Mountain View-based Google would not hire her for an engineering position she was fully qualified to handle. She alleged the action violated the federal Age Discrimination in Employment Act. In documents provided to the court, Fillekes claimed that a recruiter advised her of the necessity to include her dates of graduation on her resume so that the company could see how old she was.

In fall of 2016, Judge Beth Labson Freeman ruled that more software engineers could join the lawsuit. The suit covers more than 40 engineers who sought jobs at Google, but claim they experienced age discrimination during the process.

Google’s spokesperson, Ty Sheppard, made it clear that the company feels the allegations made are without merit and that Google will continue to provide a vigorous defense. He also cited Google’s strong policies barring discrimination of all kinds, including age discrimination. In response to other claims Google has made in legal channels that they maintain policies guarding against age discrimination in the workplace, Judge Freeman replied that having a policy in place does not necessarily prevent employees from filing suit against a company or shield the company from the lawsuit – particularly when the evidence and allegations indicate discrepancies between written policy and action. Most companies are well aware at this point about anti-discrimination and go to great lengths to ensure that their written policies comply.

Google, everyone’s favorite search engine giant, has been accused of age discrimination before. In 2004 a lawsuit was filed and eventually settled out of court for an undisclosed amount. It’s not a secret that the tech industry of Silicon Valley is young. The Huffington Post reported that the median age of workers as of 2017 at Google and Menlo Park-based Facebook was only 29 years old.

If you have been a victim of age discrimination in the workplace or any other type of workplace discrimination, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Proposed Class Action Against Sally’s Beauty Supply

An ex-Sally Beauty Supply LLC employee, Rosie Nance, filed a proposed class action against the company in Florida federal court. Nance claims she was not provided with fair overtime pay despite regularly working more than 40 hours per week, including bank deposits conducted on her lunch breaks.

Nance filed the Fair Labor Standards Act (FLSA) lawsuit in July including allegations that from April 2015 through February 2018, she was not compensated by Sally Beauty Supply at the state-mandated time and a half for extra hours she worked over 40 per week. She filed suit on behalf of herself and other nonexempt employees at the company in similar positions.

Nance was employed by Sally Beauty Supply from February 2006 through February 2018. According to the filed complaint, she was employed to provide customer service at retail outlets.

Nance claims in the complaint that while she was required to perform off the clock work by making bank deposits on behalf of the company during her lunch breaks, she was not provided payment as required by labor law. In the suit she specifically stated that the work was “directly essential” to the company and its successful business practices.

Additional claims were lodged by Nance in the complaint, including: the company failed to maintain proper time records, and the company failed to apprise her of her rights under FLSA.

Nance filed suit to seek back overtime pay at the standard rate as required by law, and additional damages and attorneys’ fees as necessary. Sally Beauty Supply is not the only national retailer facing claims of off the clock work due to lunch break bank deposits. T-Mobile, Dollar Tree, and Children’s Place Retail Stores Inc. are all facing similar claims.

If you have questions regarding what constitutes off-the-clock work or if you feel you aren’t being paid overtime as required by law, please get in touch with one of the California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Class Action Filed Against Toms Shoes Citing Violation of California Labor Law

Plaintiff Teena M. recently filed a California labor laws class and collective action lawsuit against Toms Shoes, LLC. She claims the company violated wage and hour law. The suit was filed on behalf of herself and others in similar situations at the company. The lawsuit was filed in U.S. District Court for the Central District of California on May 17, 2018. She is demanding a jury trial.

According to the plaintiff’s claims, she was hired by the famous shoe company in October of 2016 on an hourly, non-exempt employee basis. This meant that she was able to work overtime hours and receive overtime compensation as regulated by state and federal labor laws. Yet while she worked overtime hours, she alleges that Toms did not properly pay her for the overtime hours she worked. 

According to the California labor law lawsuit the plaintiff and “all of Toms other hourly, non-exempt employees who work overtime and receive commissions, non-discretionary bonuses, and/or other items of compensation aside from their base hourly rate, are not adequately paid for all of the overtime they work.”

The California labor laws lawsuit filed by Teena M. cites violations of the Fair Labor Standards Act as well as the California Labor Code and California Business & Professions Code.   

The plaintiff seeks to recover unpaid overtime wages as required under the Fair Labor Standards Act (FLSA). The class action was filed on behalf of both current and former employees of Toms Shoes, LLC.

The FLSA establishes minimum wage, overtime pay, record keeping, youth employment standards and more. All of the standards set by the FLSA affect employees in the private sector as well as in Federal, State and Local government employment. This type of FLSA class action suit can allow groups of employees who may be suffering from violations of employment law to seek recompense for the violations in a court of law.

If you have questions about overtime violations or if you are not being paid overtime for hours you work over the standard full-time work week of 40 hours, please get in touch with one of the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Stericycle Employment Class Action Suit Settled for $2 Million

A preliminary settlement agreement has been reached between the parties of the Stericycle employment class action lawsuit. The suit was brought against Stericycle, Inc., a medical waste company, with workers alleging that the company refused to provide them with required meal and rest breaks, did not pay overtime for overtime hours worked, and failed to compensate workers for time they were required to spend changing into their “work clothes.”

Approximately 985 California employees make up the class. The class was originally represented by plaintiff Sergio Gutierrez. He filed the putative class action in summer of 2014. Since that time, Gutierrez passed away. Two other plaintiffs were put forward as replacements: Kenneth Moniz and Kevin Henshaw. Both are expected to receive up to $10,000 for time and effort spent bringing the action and in exchange for general release of claims. This is in accordance with the proposed $2 million settlement as stated in the agreement.

According to the complaint, Stericycle utilized a practice of “rounding” payroll times which shorted their workers’ wages, and employees were not completely compensated for their time spent dressing in the required work clothing (donning and doffing). The company also allegedly did not include all worker bonuses in their overtime rates, failed to provide compensation for vested vacation payments, and didn’t offer required meal and rest periods to their workers as is required by employment law. 

Stericycle employs staff at more than 28 California locations and handles the collection, processing and disposal of medical waste. Class members include Stericycle employees working out of any California Stericycle location from August 14, 2010 through September 18, 2017. According to the motion for approval, Stericycle offered individual settlement amounts to certain class members (starting in 2015) attempting to minimize the lawsuit’s exposure. Those settlements payments amount to a total of $460,000. Individuals who took money from Stericycle under individual settlement deals will be provided with a reduced portion of the settlement for their worked shifts covered by prior corporate agreements with Stericycle.

Workers involved in the suit also claim that the company uses a point system to reward employees for avoiding incidents in the workplace. Points under the Stericycle system were converted to cash credits that could then be used on Amazon. Plaintiffs contend that these amounts should have been calculated into the regular rates of pay used to come up with overtime pay rates.

If you have questions or concerns about your employer’s overtime calculation, or if you are not being paid overtime in accordance with state and federal employment law, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

$140M ERISA Class Case Filed Against Home Depot: Over 200,000 Retirement Plan Beneficiaries Represented

In an ERISA suit filed in April 2018, plaintiffs Jaime H. Pizarro and Craig Smith allege that The Home Depot places employees in poorly performing funds and also causes plan participants to overpay for Robo Investment Advice. The class complaint was filed on behalf of the plaintiffs and close to 200,000 current and former plan participants in the U.S. District Court of the Northern District of Georgia. The complaint was filed against The Home Depot, the 401(k) plan’s investment and administrative committees, and investment advisors from two different companies, Alight Financial Advisors, LLC and Financial Engines Advisors, LLC. The complaint alleged that the Home Depot committed two major violations:

1.     Violated their basic fiduciary duties under ERISA

2.     Abused their employees’ trust through mismanagement of participants’ 401(k) retirement plan

Allegations state that the Home Depot chose a number of funds for the employee 4019(k) that performed poorly and allowed investment advisers to charge their plan participants exorbitant fees. It is also alleged that the company completely disregarded a kickback scheme that was occurring between a plan investment adviser and the plan’s bookkeeper. Estimated losses for employees affected are significant. One respected financial information and technology organization concluded that the average plan participant earned $100,000 less in retirement savings than employees in top-rated retirement plans similar in size. This $100,000 loss is the equivalent of about 18 additional years on the job for each Home Depot plan participant. The plaintiffs seek $140 million in damages.

Home Depot has over $6 billion in assets and is one of the largest 401(k) plans in the country. Counsel for the plaintiffs argue that ERISA fiduciary standards are clear and that while Home Depot should be held to the highest standard, they fall below the lowest standard in this particular case. According to information presented in the complaint, Home Depot’s plan investment options appear to consistently underperform their own benchmarks and those of comparable investment opportunities. Plaintiffs claim this is largely due to the company’s practice to select investment options without due diligence and fail to appropriately monitor performance.

If you need information about ERISA fiduciary standards or if you seek class action status for violations in the workplace, please get in touch with one of the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

California Judge’s Common Sense Ruling Grants Disney Summary Judgment on FCRA Class Claim

In a class action lawsuit against Disney under the Fair Credit Reporting Act (FCRA), the Culbersons alleged that Disney was in violation due to obtaining a background check prior to providing the plaintiff with proper disclosure as well as by taking adverse action without adhering to the proper adverse action process. While the Culbersons were able to obtain class certification, Disney prevailed at summary judgment.

The Los Angeles Division of the Superior Court of California granted summary judgment to Disney on February 9th, 2018 on both claims presented by the Culbersons. The court ruled that while the Culbersons may be able to state a claim for the existence of a technical FCRA violation on Disney’s part, there was no willful violation of FCRA.

The Court disagreed with the Culbersons interpretation of FCRA in connection to the adverse action claim. According to FCRA, if an employer intends to take any adverse action against a potential employee due to information obtained in a background check, they must first adhere to pre-adverse action protocol requiring the employer to give the applicant a copy of the background check and a summary of rights before taking the adverse action.

According to the Culbersons, Disney followed their own coding system for applicants including a category for “no hire” that constitutes adverse action. The categorizing of applicants in the Disney hiring system occurs prior to the submission of a copy of the background check and summary of rights to applicants. The Culbersons argued that this procedure constituted Disney actively and willfully failing to follow an appropriate pre-adverse action process.

The Court disagreed. They found that Disney’s “no hire” code did not actually constitute adverse action because it was only an internal decision. Employers are allowed to make internal decisions regarding potential employees without it constituting adverse action. According to the Court’s line of reasoning, Disney was not in violation of FCRA simply because they used an internal coding system for new applicants including a “no hire” category prior to sending out pre-adverse action letters.

Similarly, the Court held that Disney’s background check disclosure did not willfully violate FCRA. It was not determined whether or not the document included “extraneous” information as the Culbersons claimed. The Court declined to address the technical adherence to FCRA’s rule that the background check disclosure be a separate document solely dedicated to this purpose.

If you were not notified prior to adverse action taken by a potential employer, or if you were not properly notified of a background check being used during a pre-screening employment process, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.