Siemens Mobility Sued Over Alleged Missed Breaks and Wage Issues

Siemens Mobility is currently facing a potential class-action lawsuit after one of their material handlers, Dewitt Nunery, sued to allege wage issues, skipped lunch and rest periods, and inaccurate wage statements.

Plaintiff Claims He Was Required to Work Through Breaks:

The plaintiff in the case is a Siemens Mobility warehouse worker and material handler with an hourly pay rate of $16.37. Nunery claims Siemens required him to work through breaks at the Sacramento County train factory. Nunery claims that in addition to not getting a chance to take his breaks, he was not offered accurate overtime payment for missed break time.

Skipping “Paid” Breaks Should Add Time to the End of the Shift

Since rest breaks are "paid time," skipping rest breaks during a work shift should add that time to the end of the shift, but Nunery claims it wasn't. Still working at the train factory, Nunery alleges the company pressured him to work over seven days consecutively without overtime pay. Siemens train factory has been growing significantly throughout the last several years, with numerous large orders coming in from throughout the United States and Canada. The factory fulfills orders for trains, train sets, and light rail vehicles.

Seeking Legal Help to Resolve an Employment Law Violation:

Originally, Acara Solutions Inc., a staffing agency based out of New York, placed Nunery at the Siemens train factory. Later he worked for Siemens directly. Nunery claims he experienced the same payment issues and employment law violations under both Acara Solutions Inc. and Siemens. Nunery seeks penalties under the Private Attorneys General Act and seeks class-action for others in similar situations at the company. Nunery's attorney filed a notice of violations of the California Labor Code in October. In December, they filed a civil suit in Sacramento County Superior Court. Effective February 10, 2020, the case was moved from Sacramento County court to the U.S. District Court for the Eastern District of California.

The Suit Alleges Numerous Employment Law Violations:

Nunery's suit alleges meal break violations, rest break violations, minimum wage violations, and overtime pay violations. Nunery also claims that the company failed to provide accurate and itemized wage statements and failed to provide Nunery with a day off for seven consecutive days on the job.

The Siemens factory, located just south of Sacramento, is the third largest manufacturer in the region employing 1,500 workers.

If you need to talk to someone about violations in the workplace or if you need to file an overtime pay lawsuit, get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Supreme Court of California Agrees to Review Appellate Decision on Meal and Rest Period Case

The Supreme Court of California will review the California Court of Appeal's decision in the meal and rest period premium calculation case, Ferra v. Loews Hollywood Hotel, LLC. The Supreme Court will consider the term "regular rate of compensation" in Labor Code section 226.7.

In Labor Code 226.7, the term "regular rate of compensation" is used when requiring employers to provide employees with payment when required meal periods and rest breaks are not provided. The Supreme Court of California will consider the question of whether or not the "regular rate of compensation" in Labor Code 226.7 should be interpreted the same and require the same calculations as the phrase "regular rate of pay" in Labor Code Section 510(a), which references overtime calculation requirements.

What is California Labor Code 226.7?

In California Labor Code Section 226.7 employers that fail to comply with employment law by providing employees with required meal, and rest periods are required to pay the employee an additional hour of payment. According to the section referenced, the payment must be "at the employee's regular rate of compensation for each workday" that the employer does not provide a meal or rest or recovery period.

What is California Labor Code 510?

In California, Labor Code Section 510, employers are required to pay employees overtime at either one and one-half or twice the employee's "regular rate of pay" if the employee works more than full-time hours (as determined by law).

Defining Section 510's "Regular Rate of Pay:"

Previously, Section 510's "regular rate of pay" was clarified by the Supreme Court of California, determining that calculations should include additional compensation outside of the employee's straight hourly rate. Additional compensation could consist of anything from commissions to split-shift differentials to nondiscretionary bonuses, etc. There is no similar California case law that provides clarification for calculating Section 226.7's "regular rate of compensation." The question forms the basis of deliberations for the court considering Ferra.

The plaintiff in the case is an hourly employee of Loews Hollywood Hotel, LLC, that brought a putative class action against the hotel giant, alleging that the company inaccurately calculated meal and rest period premiums in violation of Labor Code Section 226.7. The plaintiff argued that Loews should have calculated the regular rate of compensation for payment due to missed meal and rest periods in the same manner used to calculate the regular rate of pay used to determine payment for overtime hours. The Court of Appeal came back with an employer-friendly ruling, disagreeing with the argument presented by the plaintiff in the case.

The plaintiff appealed to the Supreme Court of California, asking that Labor Code Section 226.7's terminology receive clarification.

If you have questions about California labor law violations or how California responds to employment law violations, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Discouraging Workers from Taking Meal Breaks Cost Walmart over $6M

Two Walmart workers filed a California class-action lawsuit alleging lost meal breaks due to mandatory security checks. The plaintiffs, Chelsea Hamilton and Alyssa Hernandez, contended that the required security search took a lot of time,  was intrusive and embarrassing.  Plaintiffs did not claim that Walmart prohibited them from taking their break, but they did insist they were discouraged. Discouraging employees from taking their legally protected meal break cost Walmart $6.1 million when the jury awarded Walmart workers in April.

Throughout the years, lawsuits filed by employees have resulted in rulings on what employers can do, what employers cannot do, and what employers are required to do in different legal areas. One of the most common disputed areas is rest and meal breaks. This case makes it clear that employers may not make it too hard or too much of a hassle for their employees to take their legally protected meal breaks. Some say that “meal break discouragement” theory could be an important new element of California labor law.

According to the California Labor Code, non-exempt workers are entitled to receive a 30-minute meal break if they work over 5 hours in one day. Employers are not required to pay employees for the meal break. Employees who work more than 10 hours in one day are entitled to additional meal breaks. Employers are also required to provide employees with 10-minute breaks every 4 hours on the job. Unlike meal breaks, employers are required by law to pay employees during their mandatory 10-minute breaks.

Employers who do not comply with meal and rest break law are required to provide employees who missed mandatory breaks with one additional hour of regular pay for each day during which a meal break violation occurred. Another extra hour of payment is required for each day during which a rest break violation occurred during their work shift.

Past lawsuits and findings of the court have made it clear that both rest and meal breaks must be free of job duties and uninterrupted (this includes running errands for the company/employer or being on call).  

If you are experiencing meal and rest break violations in the workplace or if your employer does not offer meal or rest breaks to employees, please get in touch with one of the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP can help. Find the employment law office nearest you: San Diego, San Francisco, Sacramento, Santa Clara, Los Angeles, Riverside, Orange or Chicago.

Wavedivision Holdings, LLC Faces Class Action Lawsuit for Alleged Meal and Rest Break Violations

Wavedivision Holdings, LLC, a video, internet and phone services company, faces a class action lawsuit alleging that they failed to provide required overtime wages, legally required off-duty meal breaks and mandatory rest periods to their California employees. Blumenthal Nordrehaug Bhowmik De Blouw filed the class action on February 9, 2018.

The class action against Wavedivision Holdings, LLC is currently pending in the San Mateo County Superior Court, Case No. 18CIV00684.

Allegations in the class action include:

·      Failure to lawfully calculate overtime

·      Failure to pay overtime

·      Refusing to allow employees to take off duty meal and rest breaks

·      Refusing to fully relieve employees of job duties for meal periods

Details in the lawsuit indicated that employees were sometimes unable to take off duty meal breaks or rest periods. When they were provided with meal breaks, they were sometimes not fully relieved of their job duties. According to allegations made in the class action lawsuit, Wavedivision Holdings employees were required to work over five hours in a shift with no off-duty meal break; a violation of California labor law.

California labor law requires that all employers offer their employees who are working shifts over five hours in length with an uninterrupted meal break of at least thirty minutes before the employee’s fifth hour of work is completed. California employers are required to provide a second uninterrupted meal break for employees who work ten hours.

According to the lawsuit, class members were paid using a non-discretionary incentive program. Under the program, Wavedivision Holdings offered employees hourly compensation with additional incentive compensation if they were able to successfully meet performance goals put in place by the company. Yet when the company calculated the overtime rate of pay for these same employees, the company allegedly did not include the incentive compensation as part of the “regular rate of pay.” In doing so, the company or Defendant, Wavedivision Holdings LLC, was miscalculating their employees’ overtime pay rate as a matter of policy.

If you have questions about how to file a class action lawsuit or how to qualify as a member of a class action lawsuit, please get in touch with one of the experienced class action and employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Tentative Class Certification Offered to Thousands of Wells Fargo Employees in Meal Break Row

Santa Clara County Superior Court Judge Brian C. Walsh, a California state judge, granted a tentative class certification to thousands of Wells Fargo workers. The employees claim that they were not paid appropriately (in accordance with employment law) for missed mealtimes. They also claim that Wells Fargo did not provide pay stubs as required. While the judge tentatively granted class certification, he did end up withholding his final ruling after hearing the bank’s argument that it used an individualized system to document meal premiums for their workers and that the individualized system does not support this type of class wide litigation.

Silvia Hernandez, former Wells Fargo customer service representative, filed the motion to certify two classes in the litigation. The banking giant, Wells Fargo, opposed the motion. Prior to the hearing, the judge issued a tentative written decision to both parties that he was going to grant the motion. But after the hearing, the judge stated that he needed to give the matter additional thought. He specifically said that he wasn’t actually changing the “tentative,” but that he was going to think about the matter.

The two classes off workers that Hernandez proposed in the motion were divided into two categories: a class based on the lawsuit’s wage settlement claims, and a class based on the second claims focused on the meal break violations. Most of the arguments during the hearing focused on the second of the two claims: meal break violations.

Hernandez, the original Plaintiff in the case, alleges that when Wells Fargo pays one of their non-exempt workers for a meal break that was missed, they base the pay on the worker’s hourly pay, but that the missed meal break pay should actually be calculated based on the worker’s total pay or compensation which would include bonuses. The bank claims that their calculations are based on self-reporting done by workers on an “honor system.” Thus, since they don’t verify the information provided by the workers – there’s a question regarding whether or not they can be held legally responsible for legal claims related to the amount of pay.

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

Augustus v. ABM Security Services: On Duty Rest Breaks Rejected

In the midst of the holidays, the California Supreme Court issued a decision in Augustus v. ABM Security Services, Inc. stating that the law does not allow employers to require their employees to utilize on-duty or on-call rest breaks. The impact of this decision will likely impact thousands of California employment centers with similar policies, particularly in security, hospitality, and retail industries.

California’s Industrial Welfare Commission’s industry-specific Wage Orders require employers in the state to allow non-exempt employees to take a 10 minute rest break for each four hour work period. The law also indicates specifically that the 10 minutes should be consecutive and that, when possible, the break should occur in the middle of the shift. In Augustus v. ABM Security Services, Inc. the question was whether or not this requirement was fulfilled if the “rest break” was on-duty or on-call.

This particular case was based on plaintiffs’ complaints that they were non-exempt security guards working for the company, ABM Security Services, Inc. (ABM) at a variety of work sites (i.e. residential, commercial, retail, office, industrial, etc.) throughout the state of California, and their principal duties providing immediate response to emergency and/or life threatening situations and physical security on site required that they keep their pagers and radios on. There was no exception to the rule for rest breaks. As part of their job duties, security guards were required to keep pagers and radios on during rest breaks and stay vigilant and respond to any calls that occurred regardless of their rest break schedule.

ABM’s policy was based on the urgency or time-sensitive nature of some of the clients’ needs pertaining to the on site security guards in a number of different circumstances. Some such situations included: building tenant who wanted a security escort to the parking lot, the manager of a building that needed notification of a mechanical issue on site, and various “emergencies.”

Security guards working for ABM saw this as a violation of labor law and filed suit complaining that ABM failed to provide employees with compliant rest breaks. The plaintiffs were granted summary judgment and awarded approximately $90 million by the trial court, but the Court of Appeal reversed the decision.

The case presented two issues to be considered by the Supreme Court:

1.     Are employers required to allow employees to take “off-duty” rest breaks?

2.     Can employers require employees to remain “on-call” during rest breaks?

After considering the issue, the California Supreme Court came to a decision. They first noted that California law did not explicitly require employers to provide “off-duty” rest breaks, but they also took into consideration the plain meaning of the word “rest” and other language included in the Wage Order and Labor Code. When they concluded that rest breaks need to be off-duty they noted that California Labor Code section 226.7 prohibits employers from requiring any employee to work during any meal or rest period and that the relevant Wage Order’s wording indicated that rest breaks needed to be considered time worked. The court decided that the language indicating that “rest breaks” be counted as “work time” would not be necessary unless it was the intention of the law for rest breaks to be off-duty. ABM attempted to sway the court’s decision in their favor by pointing to language in the Wage Order discussing the possibility for employers (on rare occasion) to require employees to take on-duty meal breaks. Their argument did not hold as the Court’s opinion was that the absence of language authorizing the same for on-duty rest breaks was more telling than the existence of the exception made for meal breaks. The Court held that rest breaks must be off-duty.

The Court also had to consider whether employers could comply with requirements to provide employees with breaks while also keeping them “on call” during the break. ABM argued that there was a difference between an employer requiring that an employee keep working throughout their rest break and an employer requiring that the employee remain on call. The Court did not agree and noted that the practical realities of a 10-minute rest period must be considered. The time limitation alone already restricted the employees’ options regarding what they could do on break. The Court felt any additional limitations (i.e. requirements for pagers or phones or availability on site, etc.) were not in accordance with the intention of the law to offer employees a small period of “freedom” from the job for rest and to use for their own purposes. Based on these arguments, the Court held that on-call rest breaks were not compliant with the law. 

The Augustus decision will have a significant impact on California employers who utilize on-duty or on-call rest breaks in order to maximize staff productivity and accommodate single-employee shifts. Employers who are unable to comply with the rest break requirement to relieve employees of all duties may have to pay rest break premiums as an alternative. If you have questions regarding how the Augustus decision could affect you, please get in touch with the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

Staff Assistance Inc. Faces Claims of Overtime and Meal Break Violations

Blumenthal, Nordrehaug & Bhowmik filed a proposed class action Complaint against Staff Assistance, Inc. (SAI) on December 29, 2014 alleging labor law violations. The suit is currently pending in the Los Angeles County Superior Court. A full copy of the complaint is available online, but a brief summary outlining the main points of the suit follows. 

SAI is a California based company that offers home health, palliative care, caregiving and hospice care services through an extensive network of employees. Licensed Vocational Nurses employed by SAI filed the suit listing allegations of numerous violations of California Labor Laws.

Allegations included in the suit against SAI:

·       Licensed Vocational Nurses were required to work unpaid hours, resulting in a failure to pay both wages and overtime.

·       Failure to provide accurate and complete wage statements (enabling the company to avoid payment of overtime wages).

·       SAI failed to abide by legally required meal breaks – according to California law, employers must provide all non-exempt employees that receive hourly wages with thirty minute meal periods before they complete five hours on the job. Failure to provide an uninterrupted meal period as required results in a penalty of one hour of pay according to the California Labor Code.

·       Failure to provide reimbursement for expenses incurred while employees fulfilled job duties (such as costs of travel/gas when traveling from job site to job site as assigned). This is in direct violation of California Labor Code Section 2802 requiring California employers to indemnify employees for any and all expenses that are incurred while in the course of fulfilling the requirements of their employment.

Allegations made in the suit indicate that the company’s practice to avoid paying overtime wages is based on uniform policy evident in SAI business records.

To get additional information about the class action lawsuit against Staff Assistance, Inc., please get in touch with one of the attorneys at Blumenthal, Nordrehaug and Bhowmik at (866) 771-7099 or get answers online here. The southern California employment law attorneys at Blumenthal, Nordrehaug and Bhowmik can assist you out of offices in: Los Angeles, San Diego, or San Francisco. Get in touch if you need someone to help you fight unfair business practices, or violations of the labor law in the workplace.