Home Depot Faces Former Employee's Allegations of Overtime Violations

Marco A. Batani, out of San Diego, recently filed suit against Home Depot, alleging unlawful business practices and failure to pay overtime. The complaint was filed January 2018 in U.S. District Court for the Southern District of California. In Batani’s complaint, it states that he was employed at Home Depot between 2016 and 2017 as a sales consultant, but that he was misclassified as an outside salesperson. Yet his duties while on the job consisted of mainly non-exempt tasks.

In promotional materials describing potential careers with The Home Depot, the one-stop shop for customers building a home, the company describes a warm workplace culture. The company website states that they couldn’t have “done it without the culture and feeling of home and family among the associates in our stores, distribution centers and corporate office.” Yet the claims made by Batani in the recent California overtime lawsuit paint a far different picture of the situation.

In Batani’s suit, he claims that during his employment he consistently worked over eight hours per day and more than 40 hours per week – without being provided with the legally required overtime compensation. (According the FLSA, employers are required to provide overtime pay for any hours worked beyond “full time.” The law also defines full time as 8 hours per day and/or 40 hours/week.) 

Batani also alleges that he was not provided with the legally required meal periods and was not reimbursed for all job expenses.

In addition to the above allegations, Batani claims that Home Depot USA failed to provide employees with wages due at separation, failed to provide timely and accurate wage statements, and failed to reimburse business expenses. All of the allegations are in vio0lation of state law.

Batani seeks a trial by jury. He filed suit to seek damages of $100, an aggregate penalty up to $4,000, compensatory and liquidated damages, nominal damages, restitution and disgorgement, punitive and exemplary damages and attorneys’ fees. He also seeks any additional relief the court may deem just in the situation.

If you have questions about overtime pay or if your employer is refusing to provide you with required meal and rest breaks, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Dat Dog Lawsuit Dares to Ask, "How Should Tips Be Divided?"

A recent lawsuit filed by workers at Dat Dog questioning the legality of the restaurant owner’s tip-sharing practices joins a national debate about how gratuities should be shared among co-workers. Who actually owns the tip that a diner leaves behind?

Tip-sharing is a commonplace occurrence in the restaurant industry. Servers frequently share an agreed upon (or at least pre-defined) percentage of their tips at the end of their shift with other staff, i.e. bartenders, bussers, etc. Another method is pooling all tips and distributing the total tips received for the night amongst designated staff. The Dat Dog lawsuit, filed in U.S. District Court in New Orleans, was filed by employees prepared to challenge the tip-pooling system they are required to participate in at work.

The Dat Dog tip-sharing policy requires that bartenders’ tips be split with back-of-the-house employees, i.e. cooks, dishwashers, managers, etc. The suit claims this practice is actually illegal – a claim that Dat Dog rejects claiming that the hot dog industry is not your typical restaurant and that all employees are trained to perform all job functions and to chip in as necessary during their shifts as an equal team.

According to the federal Fair Labor Standards Act two-tier wage system, restaurants are legally allowed to pay tipped employees less than minimum wage as long as an employee brings in enough tips from customers to reach at least minimum wage.  The law restricts tip-pooling to other, similarly tipped employees regularly interacting with customers. The law also bans mandated tip-sharing with back-of-house employees. Employers are required to pay kitchen staff, etc. at least the full minimum wage. 

In the Dat Dog lawsuit, bartenders claim that the managers require them to share their tips with back-of-house employees which creates an illegal tip pool according to the federal Fair Labor Standards Act. The bartenders who filed suit, Zachary Henderson and Kaleigh Thomas, allege that the company deducts 5% of the shift’s gross sales (not including alcohol sales) from the bartenders’ wages. The company then shares that 5% with managers, cooks, dishwashers, etc., all of whom are already being paid $7.25/hour as required. According to the plaintiffs’ allegations, this practice is the equivalent of a forced wage deduction scheme and does not qualify as a legal tip pool.

In support of this theory, Henderson claims that when the required tip deduction amount increased from 3% to 5% in Spring 2017, the manager responded to his complaint by explaining that the back of house employees wanted a raise and they company didn’t have the budget to raise their hourly pay. This line of reasoning supports the theory that the company is taking money from the bartenders in order to fund higher pay for the back of house staff.

If you have questions about wage and hour law or if you feel you are being unfairly treated in the workplace, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

NY Federal Judge Certified 20,000-Plus Member Class in NYU ERISA Plan Suit

U.S. District Judge Katherine B. Forrest certified a 20,000-plus member class including investors from two New York University retirement plans, finding that workers can sue together due to the fact that their Employee Retirement Income Security Act suit does present common questions. The questions presented by the NYU ERISA plan suit can be broken down to just two:

1. Did the school pay too much to maintain their investments?

2. Did the school offer poor investment options?

When seeking qualification for certification, U.S. District Judge Katherine B. Forrest depended on the U.S. Supreme Court certification bar established in the 2011 decision in Walmart v. Dukes because the questions being asked and claims being filed were similar. Plaintiffs in the case claim that the university breached their fiduciary duty through plan mismanagement. If this is, in fact, the case, the breach would be to all plaintiffs.

This ERISA suit is just one of any federal suits filed by workers at universities/colleges. Allegations of mismanagement of employee retirement plans are more and more common. Other universities facing similar allegations include: Massachusetts Institute of Technology, Yale University, etc.

Allegations of violations include:

Failing to remove underperforming funds.

Paying unreasonably high prices to third parties to service the plan.

Allowing third parties to require the plan to offer their in-house funds.

In order to gain class certification, a group is required to show that it has many individuals united by a common theory that are victims of a crime (allegedly) and are represented by named plaintiffs who qualify. Judge Forrest stated that the workers in this case fulfill all requirements for certification. The class will number at least 19,000 at all times during the period represented and maxes out at 24,000 in 2014. This easily meets the qualification for “many.” All seek to resolve claims hinging on how the court answers a series of common questions and all have a shared experience as investors in the same plans (commonality).

NYU attempted to argue that the plaintiffs were poor representatives for the class, but Judge Forrest rejected the argument.

If you have questions about ERISA or if you feel your retirement funds are being mismanaged, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

ERISA Suit Results in $12M Deal for Allianz Retirement Fund Plan Participants

Facing allegations of imprudent management of workers’ retirement funds, Allianz Asset Management agreed to pay $12 million to settle. According to allegations against the company, they kept everything in the Allianz family of funds excluding all other possibilities from consideration.

U.S. District Judge Staton found the amount offered to plan participants reasonable and granted preliminary approval to the approved deal. The deal was struck at a little over 25% of Allianz’ potential liability in the case. Current and former plan participants allege that the actions of the company were not in the best interest of investors and that the company treated the retirement plan as a way to promote the company’s family of mutual fund businesses while maximizing its own profits. The settlement comes only after close to two years of litigation and a conditional certification of class.

The Defendants did file a motion to dismiss, as well as a motion for summary judgment. While there are other cases that contain similar facts and allegations that ended in favor of the defendants, in this particular case, the court found that factors specific to the case warranted granting preliminary approval. The proposed settlement would be to cover all participants and beneficiaries of the plan since October 7, 2009.

In October 2015, a group of plan participants led by Aleksandr Urakhchin filed a complaint accusing the company of breaching its fiduciary duty to its own investors when they did not consider all available options. Or in other words, by excluding non-Allianz mutual funds, Allianz violated ERISA.

According to the complaint, because the company held onto the funds, plan participants ended up spending millions in excessive fees annually. For instance, in 2013, fees being charged for proprietary funds were about 75% higher than averages for the same time period. This resulted in over $2.5 million in unnecessary, exorbitant fees in 2013 alone. Investors claimed that not only did the company not consider non-Allianz options that may have performed better, but that the Allianz branded-funds chosen often had little or no track record and that frequently underperformed. Even after this became obvious, employees claim the company moved forward with their policy to pour employee retirement funds into Allianz owned investments.

As a part of the agreed upon settlement deal, Allianze will retain an unaffiliated investment consultant to conduct an annual evaluation of the lineup and review the policy statement for at least three years.

If you need to discuss problematic handling of your retirement funds, or other ERISA violations, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Federal Judge Grants Tens of Thousands of Oracle Corp. Plan Participants Class Certification

On Tuesday, a federal judge out of Colorado granted tens of thousands of Oracle Corp. 401(k) plan participants class certification. The Employee Retirement Income Security Act (ERISA) suit alleges that the tech company piled up excessive record-keeping fees for the plan as well as holding on to funds that were performing poorly.

Plan participants allege Oracle was breached its duties in accordance with ERISA when they piled up tens of millions of dollars of excessive fees and failed in their duty to implement a prudent process for investment funds. The 18-page decision issued by U.S. District Judge Robert E. Blackburn created a class of all plan participants and beneficiaries of the named plan since January 2009. This will include tens of thousands of members. The judge did stipulate that the class will only apply to excessive fee claims since the original proposed class definition was too broad.

Judge Blackburn created two additional classes in connection to the case. One class was designated for plan participants in the Artisan Fund and the other was for plan participants in the TCM fund. Both will have time limitations applied to and will apply to imprudent investment claims. The other fund identified in the suit, PIMCO, did not receive a class certification because there was not a class representative listed.

Counsel for the plaintiffs intend to show at trial that the employees/retirees lost valuable retirement assets due to the excessive fees and poor plan management.

The original suit was filed in early 2016 by a group of plan participants. The group alleged that Oracle and its 401(k) committee breached their fiduciary duties. Allegations also claim that the company breached its duties by engaging in ERISA prohibited transactions and specifically claimed that the company filed to act on behalf of the interests of their plan participants.

According to the suit, Oracle’s record-keeping fees to Fidelity Management Trust Co., the plan trustee, were calculated on a revenue-sharing model that was scaled with the plan’s assets instead of calculating the fees in accordance with the number of participants. Plaintiffs claim that this lack of a fixed fee per participant resulted in significant losses for plan participants due to unreasonable expenses. In the time period between 2009 and 2014, the fund’s assets went from $3.6 billion to over $11 billion. So, while Fidelity revenue saw a drastic increase, the services they provided in exchange remained the same.

When alleging poor plan management and the retaining of poorly performing funds, the suit specifically identified Artisan, PIMCO and TCM, claiming that they caused significant overall losses.

If you have questions or concerns regarding a breach of fiduciary duty under ERISA, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

A Former Walt Disney Employee Accuses the Most Magical Place on Earth of Wrongful Termination

A former Walt Disney employee, Angela Devore, is suing. Allegations include: discrimination, violation of the Family and Medical Leave Act and wrongful termination. She filed the complaint in U.S. District Court for the Central District of California Western Division on January 3rd, 2018. The suit (U.S. District Court for the Central District of California Western Division case number 18-cv-00041) was filed against Walt Disney Imagineering Research & Development Inc. alleging that they violated her rights as an employee to family and medical leave.

The Family and Medical Leave Act or FMLA is a labor law that requires larger employers to provide employees with unpaid leave for serious health conditions, to care for family members who are sick or experiencing serious health conditions, or to care for a newborn or adopted child.

Devore was hired as a set decorator in May of 2014. She was terminated on January 4, 2016.

According to the suit, Devore suffered (and will continue suffering) damages from lost wages, lost bonuses, lost benefits, emotional distress, mental suffering, and other pecuniary loss. Decore alleges that Disney interfered with her right to use her FMLA leave to provide care for her father when he needed assistance with serious health conditions during her time with the company.

Wrongful Termination is a legal term used to describe instances in which an employee’s contract of employment has been terminated by the employer, where the termination breaches one or more terms of the contract of employment, or a statute provision or rule in employment law. In this case, Devore claims she was wrongfully terminated because the FMLA required her employer to allow her to take unpaid leave without discharge. 

Devore claims that the company discriminated against her when they terminated her employment as she tried to exercise her right to take FMLA leave and then refused to reinstate her to her previous position at a later date.

Devore is seeking a trial by jury, economic, non-economic and liquidated damages, interest, declaratory and injunctive relief, attorney fees, etc. all in accordance with what the court deems just.

If you need help handling a wrongful termination or if you are being discrimated against in the workplace, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Former Employee Files Suit Against Beverly Hills Hotel Alleging Racism

The family that owns the Four Seasons Hotel Los Angeles at Beverly Hills, 300 S. Doheny Drive, is looking at a bit of legal trouble after a former employee filed suit against the wife of the hotel owner. Jennie Lam’s lawsuit claims that she was harassed about her Asian heritage and was then fired in 2016 after she complained about the situation. Lam was employed as a floral designer and plant care specialist at the hotel beginning in February 2015. Her technical employer was For All Seasons Landscapes, which is located inside the hotel.

Defendants included in the lawsuit are: Beverly Cohen, the Robert & Beverly Cohen Family Trust, For All Seasons Gardenscapes Inc., and Veronica Rodriguez. (Veronica Rodriguez is a former co-worker of Lam).

The lawsuit seeks unspecified damages on allegations of race discrimination and harassment, age discrimination (the wife allegedly referred to her as “the little Chinese girl”), whistleblower retaliation, wrongful termination, and intentional infliction of emotional distress. Lam claims she was repeatedly singled out by Cohen due to her race. Allegedly, Cohen once advised Lam, “Chinese, Vietnamese, whatever you are, just work or you will not have a job.”

Lam also claims she was made to work in temperatures over 100 degrees inside a heated greenhouse without the appropriate (or any) rest or meal breaks. When she complained about the working conditions, she was allegedly told that the heat was good for someone her age and good for her skin and that “Asian people are meant to work hard.” Lam’s lawsuit also indicates that she was made to dig through trash cans for old flowers to use in arrangements and also forced to clean the defendant’s penthouse balcony.

Rodriquez is included in the lawsuit because she allegedly made similarly racially charged, negative remarks to Lam such as, “I don’t like you, whatever the hell your background is, Vietnamese or Chinese…”

Lam eventually saw negative effects on her health. In April 2016, she had a panic attack and started to shake when Cohen ordered her to use a saw to cut branches into shorter lengths and use them in a floral arrangement. Lam protested that she wasn’t trained for that type of work, and a co-worker performed the duty. According to Lam, he severely cut one of his fingers during the process. As Lam left Cohen terminated her employment.

If you have been wrongfully terminated or if you are experiencing a hostile work environment, please contact one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.