Defining the Employment Status of a College Football Player

In recent news, the question was asked, “Is a college football player an employee of the NCAA?” The 9th U.S. Circuit Court of Appeals recent affirmed dismissal of a college football player’s lawsuit for failure to state a legal claim clearly indicates they feel the answer is no. The ruling means that the National Collegiate Athletic Association (NCAA) and the Pac-12 Conference are not legally required to pay a college football player minimum wage and overtime in accordance with federal or California wage laws.

The NCAA, a not-for-profit educational organization, and the Pac-12 Conference were listed as defendants in a proposed class action lawsuit filed by a college football player. The plaintiff claimed they acted as joint employers because they prescribed terms and conditions under which student athletes perform. The appeals court ruled that the football players were not employees under the FLSA due to economic realities in the relationship between the entities listed as defendants and the players. The found that the defendants in the case were regulatory bodies rather than employees and in so doing, upheld a district court’s ruling on the case.

The appeals court stated that the district court was accurate in their dismissal of the college football player’s California overtime claims based on the state’s decision to exclude student athletes from receiving workers compensation benefits combined with the state appellate court’s interpretations of the related legislation.

When considering the district court’s dismissal of the football player’s suit, the 9th Circuit used the “economic realities” test under FLSA. The test considers certain variables:

The plaintiff’s expectation of compensation

The alleged employer’s power to hire and/or fire

Any evidence that action was taken to evade the law

The court found that limitations on scholarships did not establish an expectation of compensation, the players were not able to show that either regulatory entity held the power to fire or hire a player, and that the NCAA rules did not show a clear intent to evade wage and hour law. They also found that the revenue generated by the relationship between the NCAA and their student athletes did not create an employment relationship.

If you have questions about the Fair Labor Standards Act, unpaid overtime or wage and hour law, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik and DeBlouw LLP today.

National Implications of Unpaid Home Care Overtime Lawsuit?

A Los Angeles County unpaid home care overtime lawsuit could have national implications. The Ninth Circuit Court recently ruled that home care providers paid through the state or county can file suit for unpaid overtime citing the Fair Labor Standards Act (FLSA). Prior to this case, workers paid by the state or county to provide home care were exempt from overtime laws at both the state and federal level.

The introduction of a new Department of Labor (DOL) regulation changed the scenario in 2015, but the change didn’t occur without some kickback. The new regulation was set to go into effect on the first day of 2015, but a federal court in Washington, D.C. blocked it. This ruling was overturned later that same year. In response to the legal action, the DOL decided the new regulation would not be enforced until Nov. 12, 2015 (even though it was initially set to go into effect on January 1, 2015).

In California, compliance with the new regulation was pushed until February of 2016. This prompted an LA County home care worker (In-Home Supportive Services (HSS) program employee) to file a lawsuit to recover 13 months of unpaid overtime (overtime that would be due in accordance with the original “effective” date of the new regulation, Jan. 1, 2015). LA County moved to dismiss arguing that the county was simply acting as part of the larger state and under the 11th amendment, had immunity in this situation.

District court ruled in favor of LA County and stated that home care workers could not recover wages from prior to Nov. 12, 2015, the date “enforcement” started. Both parties filed an appeal, escalating the case to the Ninth Circuit Court.

The Ninth Circuit Court judge maintained that the county had 11th amendment immunity and also that home care service providers could file suit to recover unpaid overtime wages earned as of the original Jan. 1, 2015 effective date of the new DOL regulation. The ruling could mean a significant financial blow for LA County since the county currently employs an estimated 170,000 home care workers in the IHSS program. Additionally, the implications could easily reach outside of this particular case in this specific county. The ruling could open the door to further collective actions filed by home care workers employed through various government programs with more collective actions likely to pop up in different counties.

William A. Dombi, President of the National Association for Home Care & Hospice (NAHC) disagrees. He went on record stating that holding county-level government employers liable for overtime wages during a time period when federal court specifically vacated the requirement is unfair. He also noted that any impact would be limited by the two-year limit on filing FLSA actions.

If you have questions about overtime violations or if you need to discuss your rights as an employee under the Fair Labor Standards Act, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik and DeBlouw LLP today.

California Private Colleges and Universities May Be Forced to Move to a Time-Card System for Adjuncts

Unless a legislative fix is successful, California's private colleges and universities may be forced to move to a time-card system for adjuncts. California legislation regarding the exempt status of adjunct workers has the backing of both the Association of Independent California Colleges and Universities and the Service Employees International Union – making this a rare instance in which colleges/universities and their adjuncts are in complete agreement. If the litigation is successful, it will prevent numerous private colleges and universities from requiring adjuncts to complete time cards as a means of avoiding labor law violations on overtime. California's public institutions are not affected as they are generally unionized.

Numerous colleges and universities facing faculty overtime violation lawsuits in recent years have reached settlement agreements with the plaintiffs. For example, Stanford University provided a $900,000 settlement in 2018 due to a class-action lawsuit on behalf of continuing studies program instructors. After attorney's fees, each adjunct involved was entitled to a partially taxable award of $1,417. Kaplan University also settled a similar suit. Other colleges and universities facing similar legal actions settled privately.

The implementation of a time-card system or other documentation of adjunct working hours was private colleges and universities' response to the new trend in employment law actions. Faculty groups insist that time cards are not a functional solution. Not to mention that requiring the completion of labor-style time cards of adjuncts could be viewed as insulting and wrong. Many adjuncts find the idea both inconvenient and humiliating.

The proposed litigation, AB-1466, would clarify when an adjunct at an independent institution would qualify as exempt under wage and hour law. The bill would specifically classify employees working in education as exempt if they offer credit-bearing instruction at independent colleges or universities, meet the existing legal test determining whether or not their work involves advanced knowledge, and they receive salary compensation (equivalent to no less than two times the state minimum wage at full-time employment or no less than two times the state minimum wage times the hours of service). The bill would also provide additional clarification (and a more generous definition) of hours of service.

If you need to discuss overtime pay violations, please call one of Blumenthal Nordrehaug Bhowmik De Blouw LLP's various locations: San Diego, San Francisco, Sacramento, Santa Clara, Los Angeles, Riverside, Orange or Chicago. We are ready to be your advocate as you seek resolution for labor law violations in the workplace.

Farmworkers Overtime Pay Lawsuit Before Washington Supreme Court

The Washington Supreme Court will decide whether or not farmworkers must receive overtime wages – after striking down agricultural pay practices twice in recent years. While a hearing isn't yet set, both sides are preparing their case with potentially hundreds of millions of dollars a year in additional costs at risk. According to state law, workers receive overtime pay after eight hours a day or after a 40-hour week. The question before the Washington Supreme Court is whether or not the state law requiring overtime pay should apply to farmworkers. Naysayers insist that inflicting this high cost on a vital portion of the state's economy is unreasonable. But does exempting agriculture from paying workers time-and-a-half for overtime hours violate the state constitution?

Other recent farm-pay lawsuits led the Supreme Court to find that piece-rate workers must be paid separately for rest periods and downtime.  The current overtime lawsuit launched off a 2016 lawsuit against a local dairy farm in Yakima County. Court records indicate that Jose Martinez-Cuevas and Patricia Aguilar, named plaintiffs in the case, worked at DeRuyter Brothers Dairy for just over a year. The owners sold the dairy settled the majority of the claims, but the Superior Court judge's ruling on overtime specifically was inconclusive. This case's main issue will skip the court of appeals as the Supreme Court agreed to take on the question.

In 1959 the Legislature exempted agriculture from the state's minimum wage law guaranteeing workers overtime pay. The lawmakers were acting under the 1938 federal Fair Labor Standards Act. Legal counsel for the plaintiffs argues that the federal agricultural exemption has historic racism at its roots. They claim Southern lawmakers created the exemption to limit the pay of black farmworkers. They argue that Washington lawmakers adopting the legislation did not consider the exemption's racist history. Arguments for the plaintiffs are based on a combination of the alleged racial history of the law excluding agricultural workers and the current racial makeup of the excluded agricultural workforce being close to 100% minority. Attorneys for the plaintiffs in the case insist the exclusion should be declared unconstitutional.

Those arguing against the Plaintiffs' case claim the fixation on the racial makeup of the current agricultural workforce has no relevance, noting that in 1959 the farmworker population was 85% white workers. They attribute the exemption to the nature of agriculture rather than racism. As an inherently seasonal business, proponents of the current interpretation of the law argue that overtime during certain times of the year is natural and necessary for the industry.

If you have questions about overtime law or who receives overtime pay, the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP can help. Get in touch with the location nearest you: San Diego, San Francisco, Sacramento, Santa Clara, Los Angeles, Riverside, Orange or Chicago.

Comcast Contractor Faces Settles Up to Resolve Allegations of Unpaid Overtime and Labor Law Violations

O.C. Communications Inc., a Comcast Contractor that supplies tech talent, agrees to pay a $7.5 million settlement to resolve an unpaid overtime lawsuit. Court documents include allegations that company employees were not paid overtime, were denied meal breaks in violation of state labor law, and not reimbursed for business expenses (i.e., tools necessary for the job).

The federal overtime class-action lawsuit was filed in San Francisco naming O.C. Communications (a California firm) and Comcast as Defendants. The two Defendants agreed to settle the case after an extensive amount of litigation that included the production of 1.5 million documents related to the case. Both Defendants, while agreeing to pay the settlement amount identified above, continue to deny any wrongdoing.

One of the lead plaintiffs in the class action overtime lawsuit, Desidero Soto of Concord, California, claims that O.C. Communications scheduled him to complete 32 job stops during one workday even though the typical complete workday included a total of eight stops. Supervisors instructed him to work through meal breaks to make it work regardless of what he was required to write on official time sheets. He claims any time taken to eat during the workday was while driving from job to job and even then, he was required to be accessible by cell phone at all times and to respond to work calls at any time.

Another plaintiff in the class action lawsuit, Jacky Charles of Margate, Florida, was a tech for the Defendant from September 2016 through May 2017. He claims that he was required to buy his own wireless drill, drill bits, screwdriver, staple gun, and a variety of cables, and work clothes to fulfill his job duties. Hundreds of other techs presented similar claims to the court.

According to court records, the $7.5 million settlement that O.C. Communications and Comcast agreed to pay plaintiffs on March 1st could have the 4,500 techs splitting the amount (minus legal fees).

If you have questions about unpaid overtime or what constitutes a violation of labor law, the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP can help. Get in touch with the employment law office nearest you: San Diego, San Francisco, Sacramento, Santa Clara, Los Angeles, Riverside, Orange or Chicago.

Overtime Claims Filed By Offshore Oil Rig Workers: Governed by FLSA or California State Law?

The Supreme Court recently ruled unanimously that state wage and hour laws do not apply to offshore drilling workers when federal law addresses the issue in question. In the recent case, Parker Drilling Management Services v. Newton, No. 18-389, the question the Supreme Court was asked to answer was whether California law governs minimum wage and payment for “standby time” for workers on oil rigs working in federal waters off the California shoreline.

When they held that California’s wage and hour laws do not apply, the Supreme Court rejected the Ninth Circuit Court of Appeals’ decision. The Supreme Court concluded that under the Outer Continental Shelf Lands Act (OCSLA), California state law is not applicable as surrogate federal law unless federal law presents a significant void or gap concerning the specific issue. The Supreme Court decision is a decided victory for companies currently operating or servicing oil rigs off the California coast in federal waters.

The Allegations Made in the Wage and Hour Case:

Brian Newton, the plaintiff in the case, worked on oil drilling platforms off the coast of California as an employee of Parker Drilling Management Services, Ltd. Newton alleges that he regularly worked 14-day shifts involving 12 hours of “on duty” hours per day and 12 hours of “standby” per day. During the standby hours, Newton claims he could not leave the platform, yet he was not paid for the standby hours.

Newton filed a class action lawsuit in California state court alleging that the company’s standby policies violated California’s wage and hour laws as well as other claims of labor law violations in connection to Parker Drilling’s failure to provide workers with pay for standby hours. After the case was removed to federal district court, parties involved agreed that the oil drilling platforms where Newton performed his job duties were covered under OCSLA.  

If you are dealing with issues of wage theft and you aren’t sure how to seek justice for the wages you have lost, please get in touch with one of the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP can help. Get in touch with the employment law office nearest you: San Diego, San Francisco, Sacramento, Santa Clara, Los Angeles, Riverside, Orange or Chicago.

Allegations of Failure to Pay Accurate Overtime Lead to Class Action Lawsuit Against VNA Hospice

A recent class action lawsuit filed against VNA Hospice and Palliative Care of Southern California alleges that the company violated numerous California Labor Laws by failing to provide employees with proper overtime pay for hours worked.

According to their website, VNA Hospice & Palliative Care of Southern California offers hospice and palliative care in the home of patients, skilled nursing centers, assisted living facilities, or independent living facilities. Every patient is different. That's why caregivers employed by VNA SoCal help to create custom medical care plans for patients, setting personal goals, and providing palliative care to help manage both pain and symptoms. VNA SoCal caregivers offer a wide range of services from hospice-care to home health care to private duty care to senior care and more.

VNA Hospice and Palliative Care of Southern California Allegedly:

•    Failed to compensate hourly employees with the proper amount of overtime pay.

•    Failed to provide California employees with meal breaks as required by state law.

•    Failed to provide California employees with rest periods as mandated by California Labor Code.

The class action overtime lawsuit was filed on March 29, 2019. The lawsuit is currently pending in San Bernardino County Superior Court for the State of California (Case No. CIVDS1909598). In the complaint, plaintiffs claim that the company paid their non-exempt employees' non-discretionary incentive wages that were created based on employee performance. Plaintiffs further allege that according to the law, the various incentive wages provided to VNA Hospice's employees should have been included in the hourly rates of pay that were used in calculating overtime rates for the employees. Allegedly illegal overtime calculations on the part of the company left other non-exempt employees at VNA Hospice receiving inaccurate overtime wages for overtime hours worked.

The complaint filed against VNA Hospice also seeks penalties related to missed meal breaks. VNA Hospice allegedly did not have a company policy in place that enabled employees to take full, off-duty, thirty-minute, uninterrupted meal breaks before the end of the 5th hour of a shift as required by law.

If you are not paid overtime wages as required by California Labor Law or if you have questions about what to do when you experience labor law violations in the workplace, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.