Performance Foodservice Allegedly Owes Tens of Thousands of Employees Unpaid Wages and Overtime

A Performance Foodservice employee filed a California overtime lawsuit seeking retribution for labor violations.

The Case: Alvarez v. Performance Foodservice et al

The Court: US District Court for the Northern District of California

The Case No.: 3:2021mc80299

The Plaintiff: Gerardo Alvarez

The plaintiff, Gerardo Alvarez, sued the company citing a number of labor law violations including unpaid wages, unpaid overtime, denied meal and rest periods, and waiting time penalties. Alvarez claims he experienced the violations firsthand during his years working for the food distributor.

The Defendant: Performance Foodservice and Performance Food Group, Inc.

Defendant in the case, Performance Foodservice, is a wholly-owned division of Performance Food Group, Inc., a Colorado-based corporation that engages in business in various California locations (Gilroy, Livermore, and City of Industry).

The Case: Alvarez v. Performance Foodservice et al

In the December 2021 lawsuit, Alvarez claims that the company provided non-compliant, non-itemized salary documentation, did not pay required compensatory premiums, and regularly rounded down when calculating employee hours worked. The class includes non-exempt hourly Performance Foodservice California employees that worked for the company during the last four years. The plaintiff believes that the putative class in the case could include as many as “tens of thousands” of employees. According to Alvarez, the company required employees to work off the clock by mandating that they answer work-related questions before and after their shifts. Alvarez also claims that the company required employees to work more than eight hours and did not provide full compensation for hours worked. the company is also facing allegations that they refuse to pay wages in a timely manner and deny employees their mandatory rest and meal breaks. The practices that allegedly violate employment law were also allegedly a widespread standard throughout all of the company’s California locations.

If you have questions about meal breaks violations or off-the-clock work, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Accurate Delivery Systems Facing PAGA-Only Action Alleging California Labor Code Violations

A PAGA-Only Action alleges that Accurate Delivery Systems failed to compensate employees for missed meal and rest breaks as required by employment law.

The Case: Willie Marquez v. Accurate Delivery Systems, Inc.

The Court: San Bernardino County Superior Court

The Case No.: CIVSB2125174

The Plaintiff: Willie Marquez v. Accurate Delivery Systems, Inc.

According to the PAGA-Only action filed, Accurate Delivery Systems, Inc. allegedly failed to fully release Marquez, plaintiff, and other similarly situated aggrieved employees for the thirty minute meal breaks required by employment law. Plaintiff also claims that the employer sometimes required employees to work in excess of four hours without being provided ten minute rest periods as required by law. According to the Supreme Court, off-duty rest periods are defined as time during which employees are relieved from their work duties and free from their employer’s control.

The Defendant: Willie Marquez v. Accurate Delivery Systems, Inc.

The defendant in the case is Accurate Delivery Systems, Inc. The case is currently pending in San Bernardino County Superior Court.

The Case: Willie Marquez v. Accurate Delivery Systems, Inc.

Willie Marquez v. Accurate Delivery Systems, Inc. is a PAGE-Only action. An employee can sue under PAGA as the proxy or agent of the state’s labor enforcement agencies. This mechanism was designed to allow the State of California itself to enforce state labor laws through employees. PAGA-Only actions are designed to recover civil penalties, and act as a law enforcement action. Designed to protect the people of California, PAGA-Only actions are not to benefit private parties. The purpose of PAGA actions is not to recover damages or obtain restitution. Rather the PAGA-Only action seeks to create a way to "deputize" citizens as private attorneys general as an additional means of enforcing the Labor Code.

If you have questions about California employment law or if you need to file a PAGA-Only action, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Court Allows Los Angeles Airport Mechanic to Move Forward With Meal Break Suit

In recent news, a California Appeals court allows a Los Angeles airport mechanic to proceed with his lawsuit claiming his employer did not provide meal breaks required by state law.

The Case: Medina v. United Airlines

The Court: Calif. Ct. App.

The Case No.: B293677 (Aug. 24, 2021

The Plaintiff: Medina v. United Airlines

The plaintiff, a mechanic for United Airlines at the Los Angeles International Airport, filed a claim that United Airlines, Inc. did not provide meal breaks as required by California State Law. United Airlines mechanics working at LAX are subdivided into different categories. The plaintiff, as a Line technician, performed maintenance on aircrafts currently in service (arriving/departing from a United station). As a Line technician, the plaintiff responded to mechanical concerns raised by the flight crew and made sure equipment was in working order prior to takeoff. The plaintiff filed a representative action under PAGA raising only one claim—that United is violating California's meal break law by failing to provide employees with a 2nd meal break (when mechanics work shifts longer than 10 hours). The plaintiff seeks civil penalties for alleged violations of California’s meal break requirements.

The Defendant: Medina v. United Airlines

The defendant in the case, United Airlines, argued that the terms and conditions of employment are governed by a CBA that was negotiated and approved under the RLA. The CBA defines a normal workday as eight hours with a 30 minute unpaid meal break and two 10-minute rest breaks. Under the agreement, when a mechanic such as the plaintiff works 2+ hours of overtime, they are entitled to an extra 30 minute paid meal period. Under California Labor Code, employers are prohibited from requiring employees to work during mandated meal and rest periods. Under California law, employers should provide a second meal period of at least 30 minutes for any employee that works over 10 hours in one workday. When the trial court dismissed the action before trial, on the basis that the lawsuit was preempted by the RLA since considering the claim would mean interpreting provisions of the plaintiff’s CBA. The employee filed an appeal.

About the Case: Medina v. United Airlines

Trial court found that the action was preempted by the federal Railway Labor Act (RLA) deciding that they would have to interpret the collective bargaining agreement (CBA) between the two parties, but the appeals court did not agree. After hearing the arguments presented in the case, the California appeals court ruled that since meal break requirements under state law are not preempted by federal labor law, the United Airline mechanic filing the suit can proceed with the lawsuit.

If you have questions about meal breaks violations or if you’ve experienced other California labor law violations, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Flight Attendants File California Meal Break Lawsuit

In recent news, flight attendants for Skywest Airlines file a California meal break lawsuit.

The Case: Bernstein v. Virgin America Inc

The Court: United States District Court, N.D. California

The Case No.: 15-v-02277-JST

The Plaintiff: Bernstein v. Virgin America Inc

The plaintiffs in the proposed class action are two former flight attendants of Defendant Virgin America, Inc. and Defendant Alaska Airlines, Inc. ("Virgin") in California. The plaintiffs allege that Virgin did not pay them for hours they worked before, after, and between scheduled flights, time they spent completing incident reports, time spent in required training, and time spent completing mandatory drug testing. The plaintiffs also allege that the airline did not allow them to take meal periods earlier than one hour before landing, did not allow rest breaks, did not pay overtime and minimum wages, and did not provide accurate wage statements as required by law. The plaintiffs filed for summary judgment.

The Defendant: Bernstein v. Virgin America Inc

The defendant in the case, Virgin American Inc. is headquartered in Burlingame, California. According to company policy:

• Crew leaders provide rest and meal periods for flight attendants.

• Flight attendants have the opportunity to take breaks, they are still on duty throughout the entirety of a flight.

• However, many flight attendants claim they are not able to take breaks on their flights, and approximately one-third of Virgin America’s daily flights since 2011 were more than five hours long.

The Case: Bernstein v. Virgin America Inc

Virgin America argued that federal regulations governing the airline (Airline Deregulation Act, federal aviation safety regulations, and the dormant commerce clause) preempt the plaintiffs’ claims based on wage and hour law, but the California judge hearing the case, U.S. District Judge Vince Chhabria, rejected the argument citing Bernstein v. Virgin America Inc., ruling that flight crews could be subject to California meal period and rest break laws. The judge cited California law stating an employer's ability to seek an exemption from rest breaks when compliance would materially affect the welfare or comfort of the employees and create an undue hardship for the employer. The judge even noted that flight attendants seemed to be a prime example of a qualifying situation for this exemption. The judge further noted that California law allows on duty meal breaks when "the nature of the work prevents an employee from being relieved of all duty" as long as the parties involved agree to an on-duty meal break. (The agreement to an on duty meal break must be written). By noting these exceptions to California law, the judge offered the airline a significant amount of wiggle room.

However, the airline argued that neither of the specified provisions actually helps reduce the burden compliance with California state law would impose. The airline does not argue that they complied with California meal and rest break law. Plaintiffs submitted evidence that they were not provided required breaks and were not compensated with extra pay. In response, the judge granted the plaintiffs’ partial motion for summary judgment regarding the airline’s liability on meal and rest break claims.

If you need to discuss California state law or if you need to file a class action lawsuit, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Do Overtime Rules Apply to Missed Meal Breaks in California?

An opinion issued on July 15, 2021 by the California Supreme Court in regard to meal period premiums impacts employers providing non discretionary payments for work performed by California employees.

The Case: Ferra v. Loews Hollywood Hotel, LLC

The Court: California Supreme Court

The Case No.: S259172

The Issue: Ferra v. Loews Hollywood Hotel, LLC

​​Generally speaking, non-exempt California workers may not work more than five hours without an uninterrupted meal period of at least 30 minutes being offered by their employer. If a California worker completes a shift longer than 10 hours, a second unpaid period of at least 30 minutes is required. An employee may waive their first meal period if six hours completes their day at work. The second meal period may be waived by the employee if the first meal period wasn’t waived and if the California employee’s shift is no longer than 12 hours. Additionally, California employers must provide rest breaks (for a minimum of 10 minutes) to their employees for every three and half hours they work. Employees cannot waive their mandatory rest breaks. When employees are not able to take their mandated meal breaks or rest breaks, employers must pay the employee a premium (Labor Code Section 226.7(c)).

The Question: Ferra v. Loews Hollywood Hotel, LLC

California law requires employers to provide one hour of pay for each workday in which they miss their mandatory meal breaks or rest periods. Prior to Ferra v. Loews Hollywood Hotel, LLC, employers and the lower courts seemed to agree that the premium for a missed meal or rest period was one hour of pay at the employee’s regular rate or pay. The case at hand brought up the question of whether or not Labor Code Section 226.7(c) ‘s reference to an employee’s “regular rate of pay” should take into account non discretionary forms of payment earned by employees in addition to their hourly wage. The reasoning presented in the case compared the calculation of compensation for missed meal and rest periods to the calculations used for overtime pay rates.

The Ruling: California Justices Say Overtime Rules Do Apply To Missed Meal Breaks

The California Supreme Court held that meal period premiums must consider non discretionary payments when designating the employee’s regular rate of compensation. Non Discretionary payments can refer to a variety of pay methods, but a common form of non discretionary pay is a bonus. In addition, the Court held that the decision would apply retroactively. The statute of limitations for underpaid or unpaid meal and rest break premiums is three years (or four years if the plaintiff also alleges a violation of California’s Unfair Competition Law). Claims under Private Attorneys General Act have a statute of limitation period of one year.

If you have questions about payment for missed meal breaks or rest periods or if you’ve experienced other labor law violations, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Can Geico Employees Keep their Wage Suit Alive?

In recent news, Geico attempted to have an overtime pay lawsuit tossed, but in this instance, auto claim adjusters alleging the company forced workers to work off the clock, and failed to provide meal breaks and rest periods as required by law.

Details of the Case: Saul Gonzalez et al. v. Government Employees Insurance Company Inc.

Court: U.S. District Court for the Central District of California

Case No.: 2:20-cv-11722

Workers Filed a Collective and Class Action:

In December 2020, workers filed a collective and class action alleging Geico employees were required to work off the clock, and work through breaks without appropriate compensation. The push to work through breaks and off the clock was allegedly a company effort to meet inspection quotas and employees claim they feared refusing could result in poor performance evaluations. Plaintiffs Alexander Rieske and Saul Gonzalez filed the suit alleging violations of California and New York state laws, and violations of the Fair Labor Standards Act. According to the motion, thirteen other adjusters have already joined the plaintiffs.

Defendant Files a Motion to Dismiss Claiming Lack of Jurisdiction:

In March 2021, Geico filed a motion to dismiss the suit claiming that there was no practical reason to litigate out-of-state claims in California and indicating the court lacked jurisdiction to decide the claims in the case. In their opposition filing, plaintiffs asserted that the U.S. Supreme Court decision the insurer relied on to push for dismissal of the nationwide collective action (and the New York state class action) doesn’t apply because unlike the Supreme Court case, Saul Gonzalez et al. v. Government Employees Insurance Company Inc. involves federal claims brought in federal court.

Does the 2017 Bristol-Myers Squibb v. Superior Court Decision Apply?

When filing for dismissal, Geico cited the Supreme Court’s 2017 decision in Bristol-Myers Squibb v. Superior Court. However, plaintiffs in the suit claim this decision does not apply to the current case since Bristol-Myers Squibb v. Superior Court pertained to state jurisdiction finding that California state courts could not adjudicate mass tort claims when plaintiffs were not from California. The Saul Gonzalez et al. v. Government Employees Insurance Company Inc. action is different because it concerns federal claims in federal court. Plaintiffs further argued that if the court accepted the position presented by Geico that federal courts cannot hear out-of-state claims brought under FLSA, it would effectively eliminate the collective nature of the FLSA.

California Federal Court Finds Bristol-Myers Decision Does Not Apply:

In October 2020, the California federal court’s decision stated that the Bristol-Meyers decision does not apply to FLSA claims brought in federal court (including the current action).

If you need to discuss California state labor laws or if you need to file FLSA claims, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Ferra v. Loews Hollywood: Another Key 2021 California Employment Law Case

Most would agree that the California courts were pretty quiet throughout 2020, but that appears to be changing in 2021. As of now, the California Supreme Court is scheduled to see several significant employment law cases that could affect how employment law affects employers and employees throughout California. 

Ferra v. Loews Hollywood: Scheduled to Appear before California Supreme Court in 2021

Case Info: Ferra v. Loews Hollywood, Nos. B283218, Los Angeles CountySuper. Ct. No. BC586176

In 2021, Ferra v. Loews Hollywood is scheduled to appear before the California Supreme Court. The Plaintiff in the case appealed to the Supreme Court of California asking for clarification of Labor Code 226.7’s phrasing “regular rate of compensation” and what it means in a context where the employee in question receives numerous forms of wages for work performed on the job. 

The Plaintiff, Ferra, Claims Loews Hollywood Hotel Violated California Labor Law: 

Plaintiff, on behalf of herself and three alleged classes of hourly employees working at Loews Hollywood Hotels, filed a class action. The Plaintiff alleges that the employer’s calculation of the premium payment was inaccurate because the company did not provide mandatory meal breaks and rest periods as required by California labor law (Labor Code section 226.7). Based on the alleged miscalculations, the Plaintiff also alleges that Loews did not provide full payment for all hours worked due to shaving and rounding time from employee hours. The Court of Appeal found in favor of  Loew’s holding that the statute’s plain language, federal case precedent, and the statutory history all indicate a difference between the “regular rate of compensation” and the “regular rate of pay.” The court held that Loew’s “rounding policy” did not result in systematic undercompensation of Loew’s employees over time. 

What Question Does the California Supreme Court Need to Decide? 

Discussion of the case has concerned parties pointing out (and urging the California Supreme Court to hold) that “regular rate of compensation” as pertaining to meal and rest breaks is in reference to the employee’s base hourly wage. This definition provides distinction between the two oft-confused phrases, since the term “regular rate of pay” generally includes non hourly compensation. 

The California Supreme Court’s Decision on Ferra v. Loews Hollywood:

California employers and employees should watch the Ferra v. Loews Hollywood case since the California Supreme Court’s decision could affect how wages earned based on meal period penalties are calculated. The regular rate used to calculate overtime seems cumbersome for meal period penalty calculations since the regular rate of pay could include annual or quarterly bonuses (some of which could occur after the missed meal period for which the penalty is being calculated). However, “regular rate of compensation” does sound very similar to “regular rate of pay” and federal district courts have ruled both ways on the issue, so many are interested to see which way the California Supreme Court will lean on this issue.

If you have questions about California labor law violations or how employment law protects you against labor 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.