“We Don’t Pay You to Pee” Why Pregnant Workers Fairness Act Needed

By Peter Levine posted in Discrimination, Employment Law, Law on November 6th, 2013

Pregnant Workers Face Discrimination When Employers Refuse Workplace Adjustments to Job Duties

When Amanda Roller became pregnant and started experiencing morning sickness her supervisor at the call center she was employed at repeatedly refused her requests to go the bathroom. Instead her supervisor told her she would get Amanda a larger trash can so that she could vomit at her desk. When Amanda asked a second time she was not only denied, but additionally told by her supervisor, “We don’t pay you to pee.” Amanda was then demoted and eventually fired.

In workplaces across the nation pregnant women face discrimination when their employers refuse to make adjustments to their job duties, including lifting restrictions such as allowing them to stay off high ladders, or even just letting them go to the bathroom to vomit.

The Pregnancy Discrimination Act (PDA) outlawed this type of discrimination in 1978, requiring that employers treat pregnant workers the same as those who are “similar in their ability or inability to work.” But too many lower courts have misinterpreted the Act, upholding incorrectly that employers are permitted to provide accommodations to workers with disabilities or on-the-job injuries but deny those same accommodations to pregnant workers.

Pregnant Workers Need Fair Interpretation of “Pregnancy Discrimination Act”

Luckily, many pregnant workers are able to continue working throughout their pregnancies without changes to their jobs. But some other pregnant workers – particularly those in physically demanding and low-wage jobs – need these accommodations in order to have healthy pregnancies as well as continue to provide for their families.

The Pregnant Workers Fairness Act was recently reintroduced in Congress lead co-sponsors, Senators Casey and Shaheen and Representative Nadler. The Act would require employers to provide reasonable accommodations to pregnant workers, unless doing so would impose an undue hardship.

For more than a decade California has had similar legislation requiring employers to accommodate pregnant workers. During that time the number of pregnancy discrimination lawsuits decreasedin the state, even while the number of similar suits rose nationwide. A temporary physical impairment that can easily be accommodated should not cost a pregnant worker her job. The Pregnant Workers Fairness Act would do just that.

Peter K. Levine
A Professional Law Corporation

“Ban the Box” Laws Allows Ex-Offenders to Get Jobs

By Peter Levine posted in Discrimination, Employment Law, Law on November 5th, 2013

“Ban the Box” Laws Will Remove “Convicted of Felony” Question From Job Applications

A growing number of states now prohibit public agencies – and in some cases private employers – from asking about a job applicant’s criminal history until they reach the interview stage or get a conditional job offer.

Essentially that means removing the check-box questions commonly found on applications that ask, “Have you ever been convicted of a felony?”

Obstacles such as these that make it more difficult for ex-offenders to obtain jobs, housing and even basic documents like drivers’ licenses only serve to drive them back to jail.

These “ban the box” laws are intended to allow ex-offenders to prove they are qualified for the job before criminal history issues enter into the hiring decision.

Minneapolis-based Target Corporation, one of the nation’s largest employer, has announced it will remove questions about criminal history from its job applications throughout the country.

California’s “Ban The Box” Laws Take Effect on July 1, 2014

This comes on the heels of a similar development in California, where Gov. Jerry Brown signed a “ban-the-box bill” that applies to government employers. Once the law takes effect on July 1, 2014, employers will have to determine a job applicant’s minimum qualifications before they ask about a job candidate’s criminal past. Applications and initial interviews for jobs, such as police officers, that by law require a conviction background check, are exempt.

Last year the federal Equal Employment Opportunity Commission expanded and updated a 25-year-old ruling barring employers from automatically denying people jobs because of arrest or conviction records.

In the guidance the E.E.O.C. gave it was made clear that an arrest alone is not proof of illegal conduct or grounds for exclusion from employment. It also outlined that employers need to take into account the seriousness of the offense, as well as the time that has lapsed since the crime was committed and the relevance of the crime to the specific job sought.

Peter K. Levine
A Professional Law Corporation

Quetico Ordered to Pay $1.3 Million in Wage- and Hour- Law Violations

By Peter Levine posted in Employment Law, Unpaid Overtime on November 4th, 2013

California Labor Regulators Have Ordered Quetico to Pay Overtime, Penalties, and Other Compensation for Wage Violations

California state labor regulators have ordered Quetico, a warehouse and distribution company that receives and distributes shoes, apparel and electronic goods for big-box retailers, to pay $1.3 million in overtime, penalties and other compensation for wage-and hour-law violations.

State Labor Commissioner Julie A. Su’s investigation of two Quetico facilities revealed that the company enforced restrictive procedures that shortened workers of their wages.

Because there were only three available clocks in the facilities totaling half a million square feet in size, employees had to go to work early to stand in long lines to punch time cards.

The commissioner’s office found employees also were denied legally required 30-minute lunch and rest breaks because they had to stand in the same long lines. Allegedly, workers who complained about the punch card situation and the unpaid wages that resulted from the lost time received disciplinary memos and suspensions.

“Wage theft takes many forms,” Su said. “My office will crack down on any employer who is taking hard-earned wages from workers by falsifying time cards and systematically preventing employees from taking a full meal break. We are also intent on eliminating the competitive advantages that labor law violators gain over employers who play by the rules.”

Quetico plans to appeal and disagrees with conclusions reached

Quetico said in a statement that it plans to appeal and that it “strongly disagrees with the conclusions reached” by the labor commissioner. “The notion that Quetico systematically prevented employees from receiving the wages and benefits to which they are entitled under California law is outrageous, misleading and false.”

Warehouse Workers United is a labor union-backed group that has been campaigning to highlight alleged labor abuses at Inland Empire distribution centers used by Walmart Stores Inc., Puma, and Levi Strauss & Co., and other retailers. According to the group Quetico’s warehouses also have been cited by state agencies for safety violations in the last year.

“Many of the problems that we commonly see in Southern California warehouses are concentrated at this warehouse,” said Guadalupe Palma, the group’s director.

Quetico workers first raised concerns last year with an arm of Warehouse Workers United. Subsequently they filed complaints with the labor commissioner’s office.  The office said it has received assurances from Quetico’s management that the company would change its practices on time card, rest break and disciplinary policies.

Peter K. Levine
A Professional Law Corporation

Back Pay for Unpaid Minimum Wages for Immigrant Workers

By Peter Levine posted in Discrimination, Employment Law, Unpaid Overtime on November 1st, 2013

Collecting Unpaid, Minimum Wages, for California’s Immigrant Workers

According to a report titled “Hollow Victories: The Crisis in Collecting Unpaid Wages for California’s Workers,” thousands of mostly immigrant workers who are employed to perform minimum- and low-wage jobs won monetary judgments against their employers but were never paid.

The report by the National Employment Law Project and the UCLA Labor Center concludes from 2008 to 2011, only 17% of court-ordered claims for back pay and labor law penalties were collected. Even after judges signed orders and employers signed settlement agreements only 42% — $165 million out of $390 million — was recovered. Meanwhile, companies representing three-fifths of unpaid-wage judgments legally vanished.

“Businesses are dissolved, licenses canceled, and it’s very hard for workers to get their money,” said Eunice Cho, a staff attorney with the National Employment Law Project and coauthor of the report.

Avoiding penalties for court-ordered back wages

Avoiding court-ordered back wages and penalties is the result of an unregulated underground economy that involves cash payments for goods, services, and labor. According to a decade-old study by the Economic Roundtable, a Los Angeles public policy research organization, more than a quarter of Los Angeles County workers are paid in cash.

For each of the 27,000 legally registered janitorial companies there are two to three underground firms, said the Maintenance Corporation Trust Fund, a nonprofit group that helps victims of wage theft.

“The lowest bidder gets the contract,” said Lilia Garcia, the fund’s executive director. “The way the irresponsible business gives the lowest bid is by breaking state wage and hour laws, not paying taxes and not paying workers’ compensation insurance.”

Advocates for low-income workers are backing a proposed bill named the Fair Paycheck Act in hopes they’ll be able to collect judgments more speedily before potential scofflaw employers can switch their identities and avoid paying employees. The Act, introduced in the Legislature, AB 1164, by Assemblywoman Bonnie Lowenthal (D-Long Beach), would slap a wage lien on an employer’s property in order to ensure assets are available to settle any unpaid wages after a judgment is rendered.

The measure ran into opposition from the California Chamber of Commerce, which added the proposal to its list of “Job Killer” bills. It has been stalled in the Assembly Appropriations Committee.

Other business trade groups and chambers of commerce have criticized the proposal, saying it “would cripple California businesses by allowing any employee, employee representative or the Labor commissioner to file super-priority liens on an employer’s real property … for an alleged, yet unproven wage claim.”

Lowenthal intends to revive her bill next year.

“AB 1164 is about fairness,” she said. “Every Californian deserves to be paid the wages they are due.”

Peter K. Levine
A Professional Law Corporation

Suit Alleges Silicon Valley Execs Conspired To Keep Wages Low

By Peter Levine posted in Employment Law on October 30th, 2013

Class action lawsuit in an alleged “overarching conspiracy”

U.S. District Judge Lucy Koh in San Jose has granted class action status to a lawsuit alleging an “overarching conspiracy” amongst major Silicon Valley companies to suppress employee compensation obtained from moving from one company to another.

By winning the class action certification, the more than 60,000 plaintiffs made up of technical employees including: software and hardware engineers, component designers, application developers, among others, now have more leverage to seek larger financial settlements than if they were to sue individually.

In 2011, five software engineers sued Adobe Systems Inc., Intel Corp., Apple Inc., and Google Inc., among others over their hiring practices, alleging that the Silicon Valley companies conspired with other local executives to limit the workers’ pay by barring them from moving from one company to another, thus suppressing employee compensation to artificially low levels.

In conspiring to eliminate competition for labor and depriving workers of job mobility as well as hundreds of millions of dollars in compensation, the defendants were accused of violating the Sherman Act and Clayton Act antitrust laws.

In their original complaint, the plaintiffs sought certification of an “All Employee” class that would include every salaried employee throughout the United States who worked for the defendant companies between 2005 and 2009. That number was estimated to be more than 100,000.

The plaintiffs limited their class action group, now down to 60,000 after Judge Koh said they had yet to show enough in common amongst these proposed class members to allow them to sue together.

Much of the case built on email exchanges

The case has been closely watched in Silicon Valley as much of it has been built on email exchanges between top executives, including the late Apple Chief Executive Steve Jobs as well as former Google Chief Executive Eric Schmidt.

In granting class-action status to the suit Koh cited what she termed “considerable, compelling common proof” that the Silicon Valley companies engaged in antitrust behavior by agreeing not to try to lure away each others’ employees.

Peter K. Levine
A Professional Law Corporation

Do Unpaid Internships Benefit the Intern?

By Peter Levine posted in Employment Law on October 29th, 2013

40 people in a room doing entry-level jobs for free

According to the federal Fair Labor Standards Act, internships at for-profit companies can be unpaid if the internship is “for the benefit of the intern” and “similar to training which would be given in an educational environment.”

But some recent lawsuits are shining a light on how unpaid internships are more like free labor.
NYU student, Christina Isnardi interned at a local production company the summer after her freshman year. “When I got to the place, it was extremely illegitimate and exploitative. My employer, he basically used me for free labor,” she said. “I had a friend who had to wash dishes for a film company.” Now a junior at NYU, Isnardi has co-founded the organization Fair Pay for Interns and started an online petition at her school to remove unpaid internship opportunities from its CareerNet.

Vice president of Intern Bridge, Robert Shindell, estimates that a million undergraduates take internships each year. And about 20% of those internships are unpaid with no academic credit.

“The bad internships are 40 people in a room doing entry-level jobs for free,” says Mikey Franklin, co-founder of the Fair Pay Campaign, a group attempting to lobby for legislation that would mandate pay for an intern’s labor. “The good internships are only for people who can afford to work for free.”

While unpaid internships are more common in “creative” fields such as film, fashion and politics, a petition on asks the question: “Where can an adult work 50 hours for no pay in 2013?” And answers it with: “The White House Intern program.”

That is real work, Mr. President

The petition has about 8,500 signatures. “That is real work, Mr. President,” the petition reads. “It’s not equivalent to a semester in college.”

Other recent lawsuits include two interns on the set of Black Swan who sued Fox Searchlight Pictures, alleging they did basic tasks undertaken by regular entry-level employees, as well as an ex-Harper’s Bazaar intern who sued Hearst Magazines, an unpaid intern who sued Warner Music Group and Atlantic Records, and a former intern at Donna Karan International.

These companies argue their competitive unpaid internships benefit the students. But for many parents and students these internships prove too expensive.
“There are strict legal guidelines. If you’re doing the work of a for-profit company, it is eminently clear that you should get paid. It is abundantly clear,” Franklin says.

Peter K. Levine
A Professional Law Corporation

Racial Discrimination Charged by African-American Hooter’s Waitress

By Peter Levine posted in Discrimination on October 27th, 2013

Hair Color Deemed Improper for An African-American Woman

Farryn Johnson, an African-American 25-year-old Hooters waitress, alleges she was let go because of her blonde highlights, even thought white waitresses are allowed to color their hair at the chain restaurant.

In the racial discrimination complaint filed with the Maryland Commission on Civil Rights, Johnson is claiming she was let go from her job on grounds of having an “improper image” after she refused to remove the blonde highlights from her dark brown hair.

“They gave me write-ups, and they told me I need to take the color out of my hair. And they said I couldn’t have blond in my hair because I’m black. They specifically said, ‘Black women don’t have blond in their hair, so you need to take it out,'” Johnson said.

In her complaint she wrote, “Because Hooters permits non-African-American women with their hair dyed colors vastly different from their natural hair colors to work as Hooters Girls, I believe Hooters only deemed my hair color ‘improper’ because I am an African-American woman. I was discharged because Hooters imposes different and more restrictive beauty standards on African-American women than it does on women of other races.”

…employers can’t have two separate unequal sets of rules

Her attorney, Jessica Weber, had this to say; “The law is clear that employers can’t have two separate unequal sets of rules-one for African-Americans employees and one for everybody else, and yet that’s exactly what Hooters did here in firing Miss Johnson, an African-American employee solely because she’s African-American. They targeted her because of her hair solely because of her race.”

Hooters’ chief human resources officer, Rebecca Sinclair said in a statement, “When you’re representing an iconic brand, there are standards to follow.

Hooters Girls are required to be camera-ready at all times to promote the glamorous, wholesome look for which Hooters is known.” She went on to say, “Hooters adamantly denies that it has different policies and standards for hair based on race. As a global brand, Hooters embraces our culturally diverse employee base and our standards are applied impartially.”

Peter K. Levine

A Professional Law Corporation

Unpaid Overtime Lawsuit Filed Against McDonald’s

By Peter Levine posted in Employment Law, Unpaid Overtime on October 24th, 2013

McDonald’s shaved hours off of employees’ time cards

In the latest of unpaid overtime lawsuits popping up nationwide, one of the most recent is recently filed class action lawsuit alleging that McDonald’s is tampering with shift records in an effort to cut costs. Allegedly more than 12 McDonald’s restaurants in New York — all owned by the same person — have shaved hours off of employees’ time cards.

Plaintiff Jeffrey Schuyler is at the forefront of these unpaid overtime lawsuits that target Ralph Crawford, a successful McDonald’s franchise owner. The alarms went off when Crawford began requesting alarmingly high time punch changes. Suddenly, hundreds of employees’ overtime hours were changed to eight-hour shifts. But Crawford might not be the only one to blame.

While Crawford was the person actually physically changing the time cards, the class action lawsuit claims that the McDonald’s corporation encouraged it.
Allegedly, a manager is alerted with a warning message on the time card management screen when an employee works overtime, scaring the managers into changing the records since being paid time and a half isn’t conducive to making money.

“Time Shaving” a regular practice at McDonald’s

Schuyler was told by his supervisor that “time shaving” was a regular practice at McDonald’s. When he checked other employees’ time records he was shocked to find managers were regularly erasing one full hour from employees’ shifts. According to the lawsuit, when he realized what was happening, he complained and as a result was demoted and then fired.

Schuyler was given $1,000 to make up for his lost hours. When the time shaving continued, he complained again — this time to Crawford directly.

Following a meeting between Crawford and Schuyler, Schuyler consulted a wage and hour attorney and filed a class action lawsuit against McDonald’s along with the support of hundreds of employees. The case alleges that McDonald’s tampers with time sheets and forces employees to work through breaks.

Peter K. Levine
A Professional Law Corporation

Home Care Aides Now Covered Under Wage and Overtime Law

By Peter Levine posted in Employment Law, Unpaid Overtime on October 22nd, 2013

Wage protections for nearly two million home care workers

The Obama administration recently announced that home care aides would be covered under the Fair Labor Standards Act, thus extending minimum wage and overtime protections to the nation’s nearly two million home care workers who care for the elderly and disabled.

According to industry experts most of these aides are already paid at least the minimum wage, but many do not receive a time-and-a-half overtime premium when they work more than 40 hours a week. Currently, about 20 states exclude home care workers from their wage and hour laws.

Some industry officials are claiming the changes would cause increases in Medicaid and Medicare spending, and raise costs for families that use these services, thus resulting in fewer jobs for home care workers.

Andrea L. Devoti, chairman of the National Association for Home Care and Hospice, said the higher costs resulting from the new rule would lead many people to hire home care aides part time rather than full time. “Caregivers will in the end receive less pay,” she said.

15 states now provide overtime and minimum wage protection

Ms. Fortman of the administration’s wage and hour division said 15 states now provided overtime and minimum wage protection to home care aides. “We have not seen any evidence that it has resulted in job loss or any serious negative impact for the workers or for the people using the services,” she said.

Labor Secretary Thomas E. Perez said in a statement, “Today we are taking an important step toward guaranteeing that these professionals receive the wage protections they deserve while protecting the right of individuals to live at home.”

The administration announced the change 21 months after first proposing the rule and after having received 26,000 public comments. Many labor advocates criticized the administration for the time it took to issue its final rule. Labor Department officials responded that reviewing the comments and holding related public meetings took time.

Even though regulations usually take effect 60 days after being issued, the administration said the new regulation would not take effect until Jan. 1, 2015, in order to give families that use these attendants, as well as state Medicaid programs, preparation time.

Peter K. Levine

A Professional Law Corporation

The Increasing Number of Wage and Hour Lawsuits

By Peter Levine posted in Employment Law, Unpaid Overtime on October 13th, 2013

“Wage and Hour” Lawsuits

According to a recent analysis of data by the Federal Judicial Center, “wage and hour” lawsuits in which workers are taking their employers to court over unfair pay have skyrocketed 432 percent in the past twenty years.

The research (conducted by the law firm Sayfarth and Shaw on behalf of the Federal Judicial Center) shows that it jumped 10 percent in just the last year.

An Increase in Lawsuits, But why?

The law firm concludes this increase might be a result of the economy picking up steam as well as “social media,” and the public’s inclination to post their grievances to Facebook, Twitter, etc… An increased number of lawyers are now looking to bring awareness and sensitivity to these issues.

But advocates of workers are more apt to claim a different reason: the inability of the Department of Labor (DOL) to properly ensure employers are in compliance with the law. As a result of the DOL’s lack of resources, workers have had to turn to courts to ensure they are paid fairly.

According to Cathy Ruckelshaus, the legal co-director for the National Employment Law Project, “The employers were emboldened because there wasn’t enforcement, so the violations increased. There was a lot of low-hanging fruit in terms of violations.”

According to ThinkProgress, while all wage and hour lawsuits involve a dispute over how much money a company owes to an employee, the suits typically fall into three sub-categories:

1. Hourly employees claiming they weren’t paid for all of the hours worked,

2. Salaried workers claiming they’re owed overtime,

3. Employees working for the tipped minimum wage claiming they didn’t make enough in tips to bring their pay up to the minimum wage rate.

But the economic downturn might also be to blame as employers were able to squeeze more out of workers concerned with keeping their jobs in an environment of high unemployment.

According to an April 2012 report from the Wall Street Journal S&P 500 companies made an average of $420,000 per employee in 2011, a full ninth more than in 2007.

“When the recession first hit, employers felt even more emboldened to violate the law because there was high unemployment and we rely on workers to complain,” Ruckelshaus said.

Bank of America and Taco Bell were hit with lawsuits

Companies such as Bank of America and Taco Bell were hit with lawsuits alleging they owed employees money during the recession and recovery. Patricia Sloan, a shift manager at Taco Bell is one such employee that has filed a lawsuit against her employer for overtime pay violations.

In her case, Sloan is claiming that managers were sometimes denied pay for their employee attendance, and that they were also forced to adjust time cards in order for the company to avoid paying overtime. If Taco Bell is found to be in violation they could be ordered to pay overtime back wages as well as penalties for their noncompliance to the Fair Labor Standards Act.

According to Ruckelshaus, the boost in lawsuits could be good news for employees because it sends a message to employers that they have to comply with laws, or face the consequences.

“The idea is that employers make decisions that don’t violate the law because they figure ‘we better not do this because we’re going to get caught,'” she said.

Peter K. Levine
A Professional Law Corporation

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