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.

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. 

Mexican Farm Workers Strike: Demanding Overtime Pay, Breaks, Water and Healthcare

April 28, 2015 - The Associated Press states that the average farm worker will make between $8-10 for a full 10-hour day of labor. Supporting yourself on such an income is difficult. Supporting your family on such an income is close to impossible. The Baja, California Mexican farm workers strike involves fifty thousand. Their strike is an aggressive method of protesting low wages, poor living/working conditions as well as general right abuses.

As the Mexican farm workers and the growers attempt to come together to resolve the issue, millions in crops have rotted in the field as the two play tug of war over the operations/property. It has been reported that workers have been witnessed throwing rocks and burning tires as they attempt to increase the attention given to the alleged mistreatment of the workers who farm millions of dollars worth of produce including strawberries and tomatoes in Baja. While the dispute was escalating, workers on strike blocked the main north-south highway and the Transpeninsular Highway. It’s also notable that additional strikes are breaking out in the surrounding area.

Workers are on strike demanding overtime pay, health care, water, breaks and time off. They also seek an end of arbitrary firings, and other abuses including sexual abuse. Workers (who are typically paid $8-10 per day) are requesting an increase to $20/day for long days in the sun or hothouse.

The farmers are being urged to return to work before the destruction of the crops leads to a destruction of jobs. Many could be affected by the ripple effect this would have on the region’s economy. During the course of the strike, over 200 protestors have been arrested for various activities including: riots, vandalism, rock-throwing, etc. To protect themselves and their livelihoods, businesses have boarded up their windows. More than 1,000 police officers have been dispersed throughout Baja, California area to control the situation.

If you are looking for information on hostile workplace conditions, contact the southern California employment law experts at Blumenthal, Nordrehaug & Bhowmik.

Recruiting Manager Files Overtime Suit Against Robert Half

On September 5, 2014, a California recruiting manager filed an overtime suit against Robert Half International Inc. The recruiting manager, Theresa Daniels, worked at Robert Half as a recruiting manager from January 2014 through June 2014. She filed suit in San Mateo County Superior Court in California.

The suit filed by Ms. Daniels made a number of claims, including:

• The company misclassified her and other, similar employees as exempt from overtime.
• She and other, similarly classified employees, did not have managerial duties that would classify them as exempt from California overtime laws.
• She and other, similarly classified employees, did not have managerial authority.
• She and other, similarly classified employees, had only a minimal role in supervising employees and not authority to make employment related decisions regarding other employees.
• All recruiting managers, Theresa Daniels included, were strictly monitored and tightly controlled by both the company policy and their direct supervisors.

The suit seeks class action status and back overtime pay for unpaid wages.

Robert Half indicated that there are meritorious defenses to the allegations being made by Ms. Daniels and they will be defending themselves against litigation.

If you or someone you know are misclassified as exempt – preventing you from receiving the overtime pay you are entitled to at work, please contact your southern California employment law experts right away: Blumenthal, Nordrehaug & Bhowmik.

Ninth Circuit Ignores Legal Written Policy in Favor of Using Statistical Sampling to Certify Class

September 3, 2014 the U.S. Court of Appeals for the Ninth Circuit upheld a certification of class in Jimenez v. Allstate Ins. Co.: 800 nonexempt insurance claims adjusters claimed that they worked overtime and did not receive payment. This is in spite of the company’s written policy stating that nonexempt employees would be paid for all the hours they work.

The Ninth Circuit based their decision on the discovery that three common questions existed:

1. The existence of an “unofficial” Allstate policy that discouraged employees from reporting overtime.
2. Whether or not employees’ workloads forced them to work overtime (in excess of eight hours in one day or over 40 hours in one week).
3. If Allstate’s timekeeping method resulted in unpaid overtime or underpayment for overtime.

The court discovered that the adjusters weren’t responsible for the preparation of time sheets/clocking in and out. Instead the time cards were set to a default of eight hours each day and 40 hours each week. Supervisors could submit “exceptions” for hours that were worked outside of the default schedule. The Ninth Circuit decided that a common question did exist in relation to the question of whether the timekeeping method resulted in unpaid overtime for adjusters.  

The Ninth Circuit also held that liability for the problem and whether or not the employer should have known its employees were working off the clock could be resolved with statistical sampling. Although, it is important to note that the Ninth Circuit did not specify exactly how the issues could be resolved through statistical sampling.  

This decision could provide a basis for a legal standard, making an employer’s lawful written policy not enough to completely insulate the company from class certification questions. The recent decision is a deviation from previous rulings as in the Supreme Court’s decision in Walmart Stores v. Dukes and Comcast Corp. v. Behrend.

If you have questions regarding class certification or the method of timekeeping used at your place of business, contact the employment law experts at Blumenthal, Nordrehaug & Bhowmik for additional information. 

California Labor Law: Governor Brown’s New Law

Governor Jerry Brown recently signed Assembly Bill 1897, creating new Labor Code section 2810.3. The new labor code section created by the Assembly Bill applies to almost all companies with 25+ employees that obtain or receive workers to complete work through the “usual course of business” from other businesses that provide workers (otherwise known as labor contractors). The new law makes such companies liable for three things:

• Payment to contractor’s employees
• Any contractor’s failure to secure appropriate workers’ compensation coverage as required
• Compliant actions regarding occupational health and safety requirements (OSHA) in place

Companies will now have a new statutory liability. The legal contraction of labor services in regards to the new Labor Code section isn’t related to the required finding of joint/co-employment or any type of control over working conditions, the method of payment, scheduling of work hours, or the overall work site environment. Under the new law, each company is liable even if they can exhibit proof that they were not aware of violations that existed or occurred.

The new labor code law applies to workers who are completing their job in the normal course of business on site. California employees who are exempt from overtime (i.e. executive, administrative and professional employees) are excluded from the new law’s reach. There are also a few exemptions from the definition of a “client employer” who is covered under the new law: companies with fewer than 25 workers, companies who use 5 or less labor contract workers at any given time, state organizations, homeowners and home-based businesses who receive labor contract services in their homes, and companies providing transportation services. Additional limited exemptions in relation to non-profit, community organizations, unions, apprenticeship programs, motor club services, cable operators, telephone corporations, etc.

The new law will be effective as of January 1, 2015. For additional information regarding exceptions and exclusions of the new labor law, contact your southern California employment law experts at Blumenthal, Nordrehaug & Bhowmik. 

Pennsylvania Grocery Salesman Files Suit to Seek Overtime Pay

A Pennsylvania grocery distributor claims he is entitled to overtime pay from his employer. According to the federal suit he filed at the U.S. District Court for the Eastern District of Pennsylvania, Brian Place claims his regular salary didn’t compensate for the number of hours that he worked as Sure Winner Foods’ sales administrator. The Maine based distributor specializes mostly in frozen foods.

Brian Place alleges that the distributor violated the federal Fair Labor Standards Act (FLSA) as well as Pennsylvania’s Minimum Wage Act. Place complains that he worked for Sure Winner Foods from February 2014 through April 2014. During the three month time period, Place traveled to various stores in central and eastern Pennsylvania. His job duties required that he stock products on store shelves for Sure Winner Foods clients. Place alleges that he spent substantially more than a full 40 hour work week on his standard schedule, received a fixed salary and that he was classified as exempt from overtime pay.

According to Mr. Place, his exempt status was incorrect and other employees at the distribution company are in similar positions with no recognition or pay for overtime. He alleges that he and other individuals filling similar positions in the company were (and are) being cheated out of wages they deserve. The suit specifies overtime pay violations specifically between 2011 an 2014. Mr. Place is seeking individual relief and collective relief from Sure Winner, urging other employees to step forward.

According to the Department of Labor site, employers must pay at least time and a half wages to any and all employees who work one or more hours over the 40-hour workweek mark. To discuss any of the many exemptions to the rule, contact the California overtime pay experts at Blumenthal, Nordrehaug & Bhowmik.