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Internships: Are They A Learning Experience or Just Free Labor?

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

Former intern seeks class action lawsuit

A former intern is seeking a class-action lawsuit against Donna Karan International over his unpaid internship at the company in 2009.

Vallentino Smith claims that he clocked in 16 hours a week without pay when he was an undergraduate student working at the company’s Seventh Avenue headquarters.

Smith’s lawyer, Lloyd Ambinder, said his client, like a lot of undergraduates trying to build up their resumes, went for an internship in a glamorous industry where jobs are harder to get. “They took advantage of him. You don’t see this in waste management or funeral homes.”

According to the Fair Labor Standards Act, an internship must meet certain criteria in order to be classified as unpaid without violating the law. One such example is that the internship must be “for the benefit of the intern” and be “similar to training which would be given in an educational environment.”

“Get the coffee…”

“I was told it would be a great learning experience,” Smith said of the 16 hours a week that he logged. However, instead of learning about marketing, he said all he did was get coffee and organize fashion closets.

Smith who now has a master’s degree from Long Island University, is seeking retroactive pay for the hours he worked (at a minimum wage rate of $7.15 per hour) and would like his case to be classified as a class-action lawsuit so he can represent at least 100 other unpaid Donna Karan interns. Ambinder said Karan took on at least two-dozen unpaid interns during the same spring semester that Smith worked there.

Smith’s accusations are the latest in a group of unpaid internship lawsuits questioning companies that take on unpaid interns. Legal experts have predicted that the trend in these unpaid internship lawsuits is likely to spread and that employers across industries should “take note.”

Workers Ticketed by Police While Protesting Work Conditions

By Peter Levine posted in Employment Law, Law on September 2nd, 2013

Ticketed strikers refused to leave in order to send a message

Ten current and former Walmart workers and two organizers were ticketed by police outside the retailer’s Washington, D.C., office during a protest over working conditions.

OUR Walmart, an affiliate of the United Food and Commercial Workers union, is spear-heading the strikes and said most of the workers had taken part in recent high-profile strikes and as a result later lost their jobs.

A D.C. police spokeswoman said the protesters were cited for “blocking passage” after refusing to disperse from the sidewalk during the demonstration.

Cindy Murray, an employee at the retailer’s store, reported she and her fellow strikers had refused to leave in order to send a message. Murray said they were protesting what OUR Walmart claims were 20 firings as well as dozens of disciplinary actions that occurred as a result of the worker strikes that started on Black Friday 0f 2012.

“We stood our ground. We felt Walmart needs to know how we truly feel about what we’re doing,” said Murray. “Our demands were that they take back what they did to our 60 workers, and we’re giving them until Labor Day to do that.”

They were fired as a result of violating Walmart’s attendance policy

Kory Lundberg, a Walmart spokesman, disputed the claims that the workers in question had been retaliated against, and said they were fired as a result of violating the company’s attendance policy and not because they had gone on strike or took part in protests.

“No associate has ever been retaliated against at Walmart for raising concerns, nor would they be,” Lundberg said. “Many of these associates didn’t show up for days.”

Walmart workers participated in scattered strikes during last year’s Thanksgiving shopping season, calling for higher pay, better access to health care coverage, and more reliable work hours.

OUR Walmart has filed unfair labor practice charges against Walmart on behalf of workers who lost their jobs. The current and former employees who were later detained visited the D.C. headquarters of the National Labor Relations Board, the federal agency that enforces labor law and investigates such charges.

According to Murray, the workers presented an NLRB official with a petition in support of their cause that included 180,000 signatures.

Murray said OUR Walmart plans to escalate its public protests if the disciplinary actions against strikers aren’t reversed.
“We want every worker that they fired due to our strike to be reinstated,” she said.

Murray, a 13-year Walmart veteran, said she earns $12.40 per hour. The $100 ticket she received Thursday for “blocking passage” is almost exactly equal to a day’s wages.

Domestic Worker Rights: Nannies, Babysitters, and Daycare Providers

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

About one in five children are in the care of domestic workers

About one in five children are in the care of domestic workers such as nannies, babysitters or in-home daycare providers. Because the government has failed to provide and subsidize quality childcare, families often struggle to find the money for in-home care, leaving nannies vulnerable because they often miss out on fair wages, decent hours, and benefits. In a recent survey, the largest group of nannies, about 11 percent, reported earning $600 per week, which amounts to $31,200 a year. While hourly wages fluctuate by location, in many major cities that isn’t enough to live on.

Fair Labor Standards Act leaves many domestic workers unprotected

A 1974 amendment to the Fair Labor Standards Act extended coverage to domestic workers, but an overly broad reading of its exemptions has left many domestic workers unprotected. As a result, most have missed out on minimum wages, overtime pay, benefits, and protection from discrimination. The majority of families who employee nannies, although they mean well, don’t often pay into Social Security, provide any paid sick leave or vacation time, or offer overtime pay for extra hours worked. Without regulations, nannies are at their employers’ whim, without anywhere to turn in the event of harassment or discrimination. “Because there’s no industry standard, there’s no guideline for a conversation.” says Jennileen Joseph, a nanny and founder of a nonprofit for domestic workers called Massachusetts Association of Professional Nannies.

First law requiring time-and-a-half for overtime

But that may begin to change. New York just passed the first law requiring time-and-a-half for overtime, at least three vacation days a year and an eight-hour workday and forty-hour workweek for domestic workers. It also grants temporary disability benefits and provides redress for harassment and discrimination. Four other states-California, Illinois, Massachusetts and Colorado-are considering similar bills.

New York’s is a momentous victory for domestic workers, but it also has some parents concerned. While the New York bill doesn’t establish a per-hour minimum wage above the state’s minimum, families will be paying far more to keep nannies working past the forty-hour workweek if they need extra care. There will be no government subsidies for these extra costs, even though they are crucial to valuing the work nannies do. And some feel the government should be at least partially responsible for the high costs of paying domestic workers, especially as those costs increase to make the work up to par with living standards.

The Endless Work Day and Salaried Employees: Unpaid Overtime

By Peter Levine posted in Employment Law, Unpaid Overtime on August 28th, 2013

Work until the job is finished

A common practice of many employers in today’s weak job market is to expect “salaried” employees to work until the job is finished, often 12 or more hours in a day. The employer benefits from hours of labor that are free and are essentially unpaid overtime. While most workers are not in a position to confront employers about the situation, high level management might have the right method to address the problem.

Achieving balance: Working a 9-to-5 schedule

“I walk out of this office every day at 5:30 so I’m home for dinner with my kids at 6, and interestingly, I’ve been doing that since I had kids. I did that when I was at Google, I did that here, and I would say it’s not until the last year, two years that I’m brave enough to talk about it publicly. Now I certainly wouldn’t lie, but I wasn’t running around giving speeches on it.”

Facebook COO Sheryl Sandberg prompted a number of questions when, in a video posted on Makers.com, she told an interviewer that she works a 9-to-5 schedule, namely “whatever happened to ‘work-life balance’?”

Many hope to take the shame out of achieving that balance.
Mashable Reader Jason Hunter commented “…5:30 as an on average time for going home should be acceptable for everyone — single or not single … family or no family — assuming you don’t come into the office everyday at 11 a.m.”

The ability to work flexibly is a perk

Too often across all industries, the ability to work flexibly is a perk – one that has to be earned over the course of one’s career, or something that’s on the books, but only approved in special cases.

A report from the Council of Economic Advisers, commissioned for a 2010 White House Forum on Workplace Flexibility, shows flexibility is a best practice with many benefits including: increased productivity, reduced turnover and absenteeism, and higher morale and company commitment.

Sandberg’s admittance reminds us of just how little we’re asking for when we ask for flexibility – getting home to have dinner with our families, or taking an ailing parent to the doctor.

We know that workers of all ages and genders and across all industries want more control over how and where they work so they can have a life, with or without family. Until we lift the stigma to flexible work arrangements, we can anticipate that workers will be wary of actually taking advantage of them. It’s up to both employers and employees to re-establish the “balance” in “work-life balance.”

The use of credit checks and convictions in employment applications

By Peter Levine posted in Employment Law, Law on August 27th, 2013

Court OKs credit history and past convictions as employment criteria

The U.S. District Court for Maryland made it even harder for workers with poor credit histories and past criminal convictions to secure employment when it dismissed a federal lawsuit brought by the federal Equal Employment Opportunity Commission (EEOC) against Freeman, a privately held event management company.

The lawsuit charges Freeman with violating Title VII of the Civil Rights Act. According to the EEOC, the employer’s hiring practice of performing detailed inquiries into applicant’s credit histories and criminal backgrounds amounted to discrimination because it disproportionately impacted African-American and male job applicants.

Any applicant meeting any of 12 different categories of reported credit-unworthiness were excluded from certain positions.
The Freeman court joined a number of other employers praising what some consider a “common sense” practice of performing credit and criminal background checks. Supporters of this practice ignore studies demonstrating that credit problems do not predict employee performance, as well as studies documenting atrocious error rates on credit checks. A report released by the Federal Trade Commission earlier this year found that a quarter of consumers identified errors (that might impact credit scores) on their credit report.

In 2011, California limited the use of credit checks in employment. The law also established broad exceptions to the “prohibition” on employment-related credit checks, essentially blessing the use of credit checks across jobs and industries where the necessity had previously never been demonstrated.

Employment Application: Have you ever pleaded guilty to, or been convicted of, a criminal offense?

 

Freeman’s standard employment application form also asked, “Have you ever pleaded guilty to, or been convicted of, a criminal offense?” Applicants were told certain convictions would not be considered in the hiring process. However, the company acknowledged a “bright-line rule” that disqualified any applicant who “failed to disclose a conviction, seriously misrepresented the circumstances of a criminal offense, or made any other materially dishonest statement on the application.”

These types of cases, often called “disparate impact” cases, stand or fall on the persuasiveness of the presented statistical evidence. In the EEOC v. Freeman case, the court let loose on the EEOC’s expert, criticizing his methodology and ultimately calling his findings “an egregious example of scientific dishonesty.”

These cases are being watched closely by consumer and civil rights advocates, who hope the EEOC’s oversight of these employment policies will reduce the use of background checks to screen out applicants. The decision nonetheless reinforces misconceptions and legal standards that are hostile to anyone applying to join the workforce.

Employment Law: Privacy Violation in the Workplace

By Peter Levine posted in Employment Law on August 22nd, 2013

Personal Information on the Workplace Bulletin Board

Many of the basic rights we all take for granted are not protected when we go to work. Whenever a question arises about an employee’s right to privacy in the workplace it is critical to identify the employee rights that may be at stake. Because there are various workplace environments, each claim of privacy violation needs to be evaluated according to the actual and specific conditions of the workplace.

Such is the debate that is facing one such McDonald’s employee’s attorney.

A San Antonio McDonald’s employee, who is only being identified as “Anna,” was outraged to find her personal medical information had been posted to a workplace bulletin board in the back office of her store.

Anna told a local television station that she suffers from depression, anxiety, liver, and lung problems, and had received a doctor’s note authenticating her illnesses so that she could take a few hours off. Anna alleges that after handing the note over to her manager, the manager then proceeded to put the note up on the public employee bulletin board.

A Clear Violation of Her Privacy in the Workplace

“It just made me want to cry,” Anna said. “I didn’t want anyone to know … I really felt that they stepped into my personal space to basically let anybody know that I needed medical treatments.” Anna claims her manager’s actions were in clear violation of both her privacy and federal health laws.

Anna has consulted with an attorney and has filed a complaint with the Equal Employment Opportunity Commission. Justine Lisser, a spokeswoman for the EEOC, did not comment specifically on Anna’s case. She did, however, say it’s possible that Anna could be referring to the Americans with Disabilities Act. This Act protects employees or job applicants from unfavorable treatment due to disability. It also has a “very strong confidentiality provision,” Lisser said.

It’s also possible that Anna could be invoking the Genetic Information Nondiscrimination Act. This Act, among other things, prohibits employers from considering an individual’s genetic information when making decisions around hiring, firing, job placement or promotion.

At this point it is unclear if Anna’s employer did so.

Lisser noted that a large number of complaints received by the EEOC involve disabilities that are psychiatric in nature, including depression. In 2012, 402 charges with favorable outcomes or meritorious allegations involved depression, accounting for nearly 7 percent of all disability charges that year.

“Certainly, there is a stigma against some psychiatric illnesses that may not be present for other things,” Lisser said.
San Antonio McDonald’s Operator Celia Jairala declined discussing further details, but offered this statement: “McDonald’s has the utmost respect for our employees and their privacy.”

An employee’s rights can be violated in any number of ways. In this particular case, “Anna” took the best course of action. She consulted an attorney and filed a complaint with the appropriate government agency with employee and workplace rights.

City to pay former clerk $150,000 to dismiss whistleblower claim

By Scott posted in Employment Law on August 16th, 2013

Whistleblower claims can go to court whenever there is some sort of corruption suspected, and an employee is retaliated against in any way for reporting those believed to be illegal activities. This means that cities can be sued, as well as large corporations and even small individually owned businesses.

One city learned this first hand after a former city clerk filed a whistleblower lawsuit after reporting what she believed to be illegal activities that the mayor was partaking in.

According to the woman’s lawsuit, she was fired from her position in December of 2009 after she reported to the state’s department of law enforcement that the mayor was charging the city for personal expenses – like a cell phone bill and a trip – without reimbursing the city. In addition, the former clerk also discovered that the mayor was not being forced to pay certain utility bills, like his city cable or water.

After reporting these findings, she was fired, and the city’s mayor told the state’s department of law enforcement that the charges were honest mistakes.

An investigation into the charges also decided that he was not purposely attempting to charge the city for his own personal gains.

In the end, the city decided to settle with the former city clerk and will pay her $150,000 in exchange for her dropping the whistleblower lawsuit. According to sources, the settlement does not equate to the city of mayor admitting guilt in any way.

Cases like this former clerk’s happen all the time throughout the country, including in California. Luckily, employees do have rights, and if they suffer from any type of retaliation after reporting what they believe to be illegal activities, there are legal actions that can be taken against that place of employment.

Employment Lawyer Los Angeles – Peter K. Levine

Source: The Walton Sun, “City paying $150K to settle whistleblower lawsuit,” 7 March 2011

Welcome to Our Los Angeles Employment Law Blog

By Scott posted in Employment Law on August 16th, 2013

At the Los Angeles law firm of Peter K Levine, we know that an employee’s expectation of a consistently fair playing field in the work place is often undermined by behaviors that harass, discriminate and otherwise violate his or her legal rights.

As an employment law firm headed by an attorney with decades of proven success representing clients who have suffered from the adverse work behavior of an employer and/or other employees, we are exceptionally well- placed and strongly disposed to do something about that. We routinely resolve both individual and class action cases concerning all types of employment law violations.

Our firm offers strong and smart advocacy across a full spectrum of employment matters, including the following:

  • Wage and hour disputes, including unpaid overtime
  • Wrongful termination
  • Discrimination
  • Employer retaliation
  • Sexual harassment
  • Whistleblower claims
  • Unpaid meals and rest breaks
  • Employer paychecks with insufficient funds
  • Use-it-or-lose-it vacation policies

We view our blog as an important educational component of our practice, and seek to have it provide timely and important information to clients with employment concerns. We welcome feedback and thank you for visiting.

Contact Us

Contact us for a free consultation with an experienced employment attorney.

Officers at LAPD file high number of employment related lawsuits

By Scott posted in Employment Law on August 16th, 2013

More than 250 police officers have filed lawsuits against the Los Angeles Police Department since 2005 for employment law violations like discrimination, sexual harassment and retaliation. At this point 45 have been settled, while others are in the appeals process and others are still pending.

In addition to the high number of lawsuits being filed, between 2005 and 2010 the city has also spent quite a bit of money, reportedly paying out more than $18 million, with some officers walking away with five or even six figure payments.

One such case was from a lawsuit filed by a canine handler for the police department. She claimed that male officers had made inappropriate sexual comments and advances toward her, and had also excluded her from certain training exercises. She ended up suing the department, and in 2009 city officials settled her claim by paying her $2.25 million.

However, it didn’t stop there are as two other officers also claimed to have been retaliated against for sticking up for the woman. A canine handler who had worked with the woman claimed he was expelled from the unit and had his ranked stripped for defending the woman, and a sergeant also claimed to have been retaliated against after he refused to change the woman’s performance evaluation.

In both of those cases the city refused to settle, and in court both of the officers won their cases with the other canine handler being awarded $2.5 million, and the supervisor receiving close to $750,000 in damages.

The Police Protective League, which serves as the union for rank-and-file officers, sees the lawsuits as indicative of a greater problem within the department, and city officials are now calling for the department to do more in terms of workplace conflict resolution measures in order to avoid such a large number of expensive lawsuits.

Source: San Jose Mercury News, “Report: LA pays big bucks in LAPD workplace suits,” 8 May 2011

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