California Court of Appeal Holds that “Percentage Bonuses” Based on Regular and Overtime Hours Comply with Employment Law

In recent news, the California Court of Appeal held that percentage bonuses provided by employers that are based on a combination of regular and overtime hours comply with employment law.

 The Case: Lemm v. Ecolab

The Court: Los Angeles County Superior Court

The Case No.:  B312232

The Background: Lemm v. Ecolab

The plaintiff in the case, Lemm, worked for EcoLab as a non-exempt sales manager. Lemm was given a specific route and regularly worked more than 12 hours daily and more than 40 hours in one week. EcoLab used a pay system with certain multipliers triggered when employees met specific metrics with the employee’s hourly rate of pay used as the base pay ((base wage + overtime wages + double-time wages) x 5%). EcoLab’s policy to pay 1.5x and 2.0x his hourly rate for qualifying overtime and double time hours was not disputed. This type of payment policy is typically referred to as a percentage bonus. Percentage bonus payment systems are authorized under Fair Labor Standards Act (FLSA) regulations.

Progression of the Case: Lemm v. Ecolab

The plaintiff, Lemm, argued that EcoLab should have used an overtime calculation method applicable to flat rate bonuses under California law. In contrast, EcoLab argued that their percentage bonus plan complied with California and federal law. The trial court sided with EcoLab, rejecting an alternate interpretation of California law requiring employers to pay overtime on overtime when using percentage bonus plans. Using this interpretation would have left California employers with percentage bonus plan systems in place significantly exposed. Lemm appealed.

The Case: Lemm v. Ecolab

On appeal, the court held that EcoLab’s percentage bonus plan complied with California employment law. The appellate court pointed out that the Ninth Circuit and several other California District Courts previously held that percentage bonuses were lawful methods to calculate additional overtime wages due to contingent compensation in California. The court also noted that paying a federal “percentage bonus” generated the same overtime pay as the “true-ups” generated by a formula published in the Department of Labor Standards Enforcement Manual or DLSE Manual (not a binding authority, but a type of underground regulation without the weight given to IWC wage orders). The formula Lemm argued should be used to calculate his pay is also in the same manual. It is the standard the California Supreme Court adopted as proper for flat sum bonus calculations. Requiring EcoLab to apply this formula on top of their existing percentage bonus would result in overtime on overtime contravening Labor Code section 510 and the Wage Orders. The findings in this case set forth a standard or roadmap for approaching sales-based compensation for California employees.

If you have questions about how to file a California overtime lawsuit, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced overtime attorneys are ready to assist you in various law firm offices in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Home Depot Brain Injury Lawsuit Settlement Reached After Opening Statements

In 2017, Home Depot agreed to settle a brain injury lawsuit after completing the opening statements.

The Case: Jaime Beltran v. The Home Depot Inc.

The Court: Kern County Superior Court

The Case No.: S-1500-CV-283696

The Plaintiff: Jaime Beltran v. The Home Depot Inc.

The plaintiff in the case, Jaime Beltran, a 54-year-old, was injured when metal boxes fell on him as he shopped at a Home Depot store. His attorney argued that the incident caused a traumatic brain injury that resulted in $8 million in medical expenses alone. Additionally, Beltran claimed he suffered from pain, anxiety, depression, memory loss, and decreased executive function abilities daily. Before the incident, Beltran managed a cement design company. However, in 2013, he claims he was shopping when a Home Depot employee on a ladder accidentally knocked two laptop-sized metal boxes containing re-keying supplies off a shelf onto Beltran’s head. The boxes allegedly fell from a height of about eight feet. Initially, Beltran told the Home Depot employees that he was just dazed, but he went to the emergency room due to nausea and pain within hours. Once there, he was diagnosed with a concussion. The plaintiff’s attorney claimed the accident was caught on video and reviewed by Home Depot management, but the video was no longer available. The absence of the video was not explained.

The Defendant: Jaime Beltran v. The Home Depot Inc.

The defendant in the case, Home Depot, admitted to liability for the accident. However, they maintained that the plaintiff suffered a less severe injury than the industry described in the lawsuit and that some symptoms resulted from untreated psychological issues. The defendant initially argued the plaintiff would be fairly compensated with a $1.3 million award.

The Case: Jaime Beltran v. The Home Depot Inc.

Since the incident in Home Depot in 2013, Beltran has undergone 60 neurological tests. The plaintiff’s attorney explained that Beltran had abandoned his cement design business (out of necessity), can only drive short distances, mainly avoids social engagements and situations, and is home-bound with few reasonable prospects for employment. Due to this future impact, and the already sizeable medical bills, the plaintiff’s attorney argued that the jury should award between $30 and $50 million to provide justice.

If you have questions about how to file a California traumatic brain injury lawsuit, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced traumatic brain injury attorneys are ready to assist you in various law firm offices in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Defendants & Plaintiffs Reach Settlement in Sandra Harmon Wrongful Death Lawsuit

In recent news, the defendants and plaintiffs agreed on a settlement in the wrongful death lawsuit of Sandra Harmon.

The Case: Estate of Sandra Lee Harmon, et al., v. County of San Mateo, et al.

The Court: United States District Court Northern District of California

The Case No.: 21-cv-01463-VC

The Plaintiff: Estate of Sandra Lee Harmon, et al., v. County of San Mateo, et al.

Sandra Harmon, a 56-year-old woman suffering from mental health issues, was shot by San Mateo County Sheriff's deputies in Half Moon Bay in May 2020. The plaintiff in the case is the Estate of Sandra Lee Harmon. Sarah Gatliff, Harmon's daughter, filed the wrongful death lawsuit in March 2021 in the U.S. District Court for the Northern District of California. The suit listed nine complaints:

• Excessive force

• Loss of familial association

• Spoliation of evidence

• Conspiracy

• Supervisory liability

• Municipal liability

• Wrongful death

• Negligence

• Negligent supervision, training & retention

The Defendant: Estate of Sandra Lee Harmon, et al., v. County of San Mateo, et al.

The lawsuit initially named nine defendants (including three deputies in the San Mateo County Sheriff's Office, the city of Half Moon Bay, and San Mateo County). The lawsuit also named Sheriff Carlos Bolanos, District Attorney Stephen Wagstaffe, and their respective offices. However, according to court documents, Gatliff and her legal counsel amended the complaint in August 2021, removing claims against Bolanos, Wagstaffe, and Sgt. James Goulart and their respective offices.

Details of the Case: Estate of Sandra Lee Harmon, et al., v. County of San Mateo, et al.

According to court documents, Dominguez was the first of two deputies to shoot Harmon. According to witnesses, on the night she was shot, Harmon was walking downtown holding a rifle and some alcohol while talking about a pending "race war." The San Mateo County Sheriff's Office claims Harmon fired the rifle on Officer Dominguez. Twenty seconds later, Baba arrived on the scene and ordered Harmon to get on the ground. According to the Sheriff's Office, Harmon reached for her weapon instead of getting on the ground, so the deputies fired. After lengthy court proceedings, the two parties in the case agreed to a settlement on Nov. 10th. According to the settlement agreement, San Mateo County will pay $170,000 to Gatliff and Harmon's estate.

If you have questions about how to file a California wrongful death lawsuit, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced wrongful death attorneys are ready to assist you in various law firm offices in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Evansville Police Face Wrongful Death Lawsuit After Fatal Shooting

The Evansville Police face a wrongful death lawsuit concerning a November 2020 shooting.

The Case: Earnise Pam and Sasha Boyd v. City of Evansville, Indiana, Evansville Police Department, etc.

The Court: Butte County Superior Court of the State of California

The Case No.: 3:22-cv-00172-RLY-MPB

The Plaintiffs: Earnise Pam and Sasha Boyd v. City of Evansville, Indiana, Evansville Police Department, etc.

The plaintiffs in the case, Earnise Pam and Sasha Boyd, are the family of Rodriquez Pam, the 33-year-old who died after a police-involved shooting in Evansville, Indiana in November 2020.

The Defendants: Earnise Pam and Sasha Boyd v. City of Evansville, Indiana, Evansville Police Department, etc.

The defendants in the case are the City of Evansville, Indiana, the Evansville Police Department, and Police Chief Billy Bolin. On November 8, 2020, officers were dispatched to the 1100 block of Cherry Street after a 911 caller reported a man was pointing a gun at her and her dog. Evansville Police Sergeant Nick Winsett said once they arrived on the scene, Pam pointed a gun at officers, and then two officers shot him. Rodriquez Pam was declared dead at the scene. According to the lawsuit, plaintiffs allege that Pam was complying with the officer’s commands and did not have a gun in his hand when he was shot.

Additional Allegations: Earnise Pam and Sasha Boyd v. City of Evansville, Indiana, Evansville Police Department, etc.

Additionally, they allege that the crime scene was altered for crime scene photos to make it look like Rodriguez Pam was holding a gun. A handgun was found at the scene, but the plaintiffs allege that the gun was not loaded. Pam’s family claims he had a BAC level of 0.310 at the time of death, so he likely had trouble understanding the officer’s command. The plaintiffs claim that the officers responding to the 911 call failed to recognize that Pam was intoxicated or in a mental health crisis and therefore did not respond appropriately.

Details of the Case: Earnise Pam and Sasha Boyd v. City of Evansville, Indiana, Evansville Police Department, etc.

The family did not include a dollar amount in the wrongful death lawsuit. Pam is survived by five children and his parents. The family seeks judgment against the defendants for compensatory, special, and punitive damages and other and further relief as the Court finds just and equitable. The plaintiffs demand a jury trial.

If you have questions about how to file a California wrongful death lawsuit, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced wrongful death attorneys are ready to assist you in various law firm offices in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Did Veni-Express, Inc. Fail to Pay Employees All Wages Due?

In recent news, an employee claims that Veni-Express, Inc. failed to pay employees all the wages they were due for hours worked.

The Case: Yesenia Medina v. Veni-Express, Inc.

The Court: San Diego County Superior Court of the State of California

The Case No.: 37-2022-00047732-CU-OE-CTL

The Plaintiff: Yesenia Medina v. Veni-Express, Inc.

The plaintiff in the case, Yesenia Medina, is a mobile phlebotomist employed in California from January 2022 through June 2022 by Veni-Express, Inc. According to the complaint, the plaintiff did not receive minimum wage or legally required rest breaks. During her employment, the company allegedly put a piece rate pay system in place for conducting the visits assigned by the company (that the plaintiff describes as illegal). Under the piece rate system, Medina claims the company failed to pay minimum wage and also failed to pay for all hours worked, including time spent traveling to and from visits, time spent filling out charts and paperwork before and after completing the assigned visits, and time the company required Medina be on call.

Alleged Violations of Employment Law: Yesenia Medina v. Veni-Express, Inc.

• Unfair competition (violating Cal. Bus. & Prof. Code §17200 et seq; 2)

• Failure to pay minimum wage (violating Cal. Lab. Code §§ 1194, 1197 & 1197.1; 3)

• Failure to pay overtime wages (violating Cal. Lab. Code §§ 510 et seq; 4)

• Failure to provide required meal periods and rest periods (violating Cal. Lab. Code §§ 226.7 & 512 and the applicable wage order)

• Failure to provide accurate itemized wage statements (violating Cal. Lab. Code § 226; 7)

• Failure to provide wages when due (violating Cal. Lab. Code §§ 201, 202 AND 203. 8)

• Violation of the Private Attorneys General Act

The Defendant: Yesenia Medina v. Veni-Express, Inc.

The defendant in the case, Veni-Express, Inc., offers mobile phlebotomy, specimen collection, onsite drug testing, and DNA collection services throughout California, including San Diego County, where the plaintiff, Medina, worked.

The Case: Yesenia Medina v. Veni-Express, Inc.

The case, Yesenia Medina v. Veni-Express, Inc., is brought on behalf of current and former California employees of Veni-Express who received payment for their work using the piece rate basis from November 28, 2018, to the time of the filing. The plaintiff alleges that some of the employees receiving piece rate payment were entitled to separate hourly compensation for the time they spent performing other, non-production related job duties as instructed by Veni-Express during their work shifts. Medina also claims the employees are entitled to one hour of compensation pay for their missed rest periods.

If you have questions about how to file a California class action lawsuit, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced class action attorneys are ready to assist you in various law firm offices in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Did Comcast Cable Communications Management, LLC Engage in Meal and Rest Break Violations?

In recent news, a California worker alleges that Comcast Cable Communications Management, LLC violated California Labor Law by failing to provide employees with required meal and rest breaks.

The Case: Vinicius De Oliveira v. Comcast Cable Communications Management, LLC

The Court: San Mateo County Superior Court

The Case No.: 22-CIV-05061

The Plaintiff: Vinicius De Oliveira v. Comcast Cable Communications Management, LLC

The plaintiff in the case, Vinicius De Oliveira, started working for Comcast Cable Communications Management, LLC in August 2021 as a non-exempt hourly employee. Oliveira claims the company violated multiple California labor laws during his time at the company. Oliveira filed a PAGA-only complaint in San Mateo County Superior Court on December 1, 2022.

What is PAGA-Only?

California allows an “aggrieved employee” to act as a private attorney general under the Labor Code Private Attorney General Act of 2004, § 2699, et seq. In a (“PAGA”) only suit, a plaintiff brings an action against the defendant seeking to recover PAGA civil penalties but does not seek to recover anything other than penalties as permitted by California Labor Code § 2699.

The Defendant: Vinicius De Oliveira v. Comcast Cable Communications Management, LLC

The defendant in the case, Comcast Cable Communications Management, LLC, is an American telecommunications company and division of Comcast Corporation that markets consumer cable television, internet, phone, and wireless services for Comcast.

The Case: Vinicius De Oliveira v. Comcast Cable Communications Management, LLC

The plaintiff in the case, Vinicius De Oliveira, filed the PAGA-only suit seeking civil penalties under Labor Code §2699, et seq. citing violations of various California Labor Codes, including §§ 201, 202, 203, 204 et seq., 210, 218,221, 226(a), 226.7, 227.3, 510, 512,558(a)(1)(2), 1194, 1197, 1197.1, 1198,2802, California Code of Regulations, Title 8, Section 11040, Subdivision 5(A)-(B), and the applicable Wage Order(s).

If you have questions about how to file a California overtime 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 in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Is a Personal Cell Phone a Reimburseable Work Expense for California Employees?

A recent complaint filed in Madera County Superior Court raises the question of cell phones as a reimbursable work expense. Allegedly, Paleowest, LLC failed to reimburse employees for personal cell phone usage and home office usage even though both were required to complete their job duties.

The Case: Brandy Hale v. Paleowest, LLC

The Court: Madera County Superior Court

The Case No.: MCV088135

The Plaintiff: Brandy Hale v. Paleowest, LLC

The plaintiff in the case, Brandy Hale, filed a class action lawsuit on behalf of herself and other similarly situated current and former employees. In the class action, Hale claims that the defendant, Paleowest, LLC, violated California Labor Code. During her employment from January 2018 through May 2022, the company allegedly failed to reimburse employees for personal cell phone usage and home office usage, even though she claims both were required to complete job duties. The company classified Hale as a non-exempt hourly employee. However, Hale claims that she (and other employees) were not paid for all their hours, were required to work while clocked out, did not receive required off-duty meal breaks, were required to submit to mandatory Covid-19 screening without pay, and were also shorted pay due to the company’s policy to “round” employee hours.

The Defendant: Brandy Hale v. Paleowest, LLC

The defendant in the case, Paleowest, LLC, offers cultural, prehistoric, architectural, ethnographic heritage, and paleontological resource management services.

The Case: Brandy Hale v. Paleowest, LLC

According to the class action wage and hour lawsuit, Paleowest, LLC allegedly failed to reimburse employees for necessary expenses needed to complete their job duties (like their cell phone and home office) and failed to comply with multiple California Labor Codes. As a result, Hale, the plaintiff in the case, alleges that she and others similarly situated at the company were required to forfeit minimum wage, overtime pay, and off-duty meal breaks (without appropriate compensation). Additionally, the plaintiff claims that Paleowest, LLC’s practice, and policy not to provide payment to employees for all time worked can be seen in their own records. Failing to include employee incentive pay earned through the company’s rewards program as part of the “regular rate of pay” for overtime pay calculations shorted employees on overtime pay compensation. Hale argues that incentive pay would be included as part of the regular rate of pay since management and supervisors both describe the incentive program as part of the compensation package when outlining the benefits of employment for new employees.

If you have questions about how to file a California employment law class 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 in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.