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Pizza chain Manny & Olga’s accused of wage theft

By Peter Levine posted in Employment Law, Unpaid Overtime on October 2nd, 2013

Claims of illegally low pay

Jose Luis Ormeno, a former kitchen worker at pizza chain Manny & Olga’s has filed a lawsuit that accuses his employer of wage theft. Ormeno is claiming long hours and illegally low pay while working at the late-night takeout chain.

The suit, filed in federal court, alleges Ormeno was cheated out of more than $12,000 in pay. According to Ormeno, for the first six months of his employment, he worked an average of 81 hours per week for a mere $5.32 per hour, nearly $3 below the D.C. minimum wage of $8.25.

Ormeno claims that regardless of how many hours he worked he was paid a flat rate of $420 and later $360 per week. Under the Fair Labor Standards Act (FLSA), most hourly workers are entitled by law to minimum wage as well as time-and-a-half for overtime worked over 40 hours per week. Ormeno says in the lawsuit that later on in his employment at the chain he earned the legal D.C. wage of $8.25 per hour, but that rate was paid only for “straight time.”

Unpaid overtime exceeds $5,000

According to the lawsuit his overtime claims for a six-month period alone amount to more than $5,000.

The lawsuit states, “Plaintiff complained to Defendants about his excessive work hours and the manner in which he was paid… “Plaintiff has made
Defendants aware that they are in violation of the FLSA; however, Defendants refused to respond.”

In addition to the $12,286.79 he’s seeking in back pay, Ormeno is also asking for $24,573.58 in damages.

Fast Food Chain Accused of Failure to Accommodate Religious Beliefs

By Peter Levine posted in Discrimination, Employment Law on October 1st, 2013

The EEOC has accused two corporations that operate a chain of Kentucky Fried Chicken restaurants: Scottish Food Systems, Inc. and Laurinburg KFC Take Home, Inc., of violating federal law by failing to accommodate an employee’s religious beliefs and firing her because of her religion.

According to the EEOC’s employment discrimination lawsuit, the employee, Sheila Silver converted to Pentecostalism in 2010. A belief of the Pentecostal church is women should wear skirts rather than pants. In accordance with this religious belief Silver has not worn pants since the fall of 2010.

Silver has worked at various Kentucky Fried Chicken restaurant locations since 1992. Scottish Food Systems and Laurinburg KFC Take Home purchased the KFC restaurant where Silver worked in April 2013. At that time, they informed Silver, citing their dress code policy that she must wear pants to work.

Silver told Scottish Food Systems and Laurinburg KFC Take Home she could not wear pants because of her religious beliefs and the companies fired her for refusing to wear pants to work.

Civil Rights Act violations

This alleged conduct violates Title VII of the Civil Rights Act of 1964. This act requires employers to reasonably accommodate an employee’s religious beliefs as long as doing so does not pose an undue hardship. The EEOC filed suit in U.S. District Court after first attempting to reach a voluntary settlement through its conciliation process. The EEOC seeks back pay, compensatory damages and punitive damages, as well as injunctive relief.

“Employers must respect employees’ sincerely held religious beliefs and carefully consider requests made by employees based on those beliefs,” said Lynette A. Barnes, regional attorney for the EEOC. “This case demonstrates the EEOC’s continued commitment to fighting religious discrimination in the workplace.”

EEOC: Buffalo employee fired after standing up for hiring black worker

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

Production manager fired for hiring recommendation

According to a federal lawsuit, Myrna Peltonen, a production manager lost her job at Izza Bending Tube & Wire, a small industrial company for defending her recommendation that a temporary black worker be permanently hired after logging 500 hours with the company.

When the owner of the company, Scott Landgraf, rebuffed the recommendation, he punctuated his point with racist language, and also told Peltonen to let the worker go, alleges the suit filed by the Equal Employment Opportunity Commission (EEOC).

Peltonen was demoted to an office position and had her pay cut when she refused to let the worker go.

The worker, Randall L. Smith, “worked hard and deserved the opportunity for a full-time permanent position with benefits at Izza,” says Peltonen. “This case is about doing what is right and taking a stand against intolerance. Mr. Smith deserved better. Everyone at Izza deserved better.?”

Peltonen then also escalated to Creative Staffing Solutions, the temporary employment agency that placed Smith, about what Landgraf had said. She also told Smith.

The owner of the staffing agency, Rose Vaughn suggested to Smith that he be fired, and she then gave Izza a false reason for why Smith would not be working there anymore. The agency also stopped trying to find work for Smith.

Discrimination charge filed

Peltonen filed a discrimination charge with the EEOC a couple of weeks later. She was then fired from Izza after having been with the company for about 14 months.

The EEOC hopes to win back pay as well as force Izza to put in place an anti-retaliation policy that complies with federal law.
“Myrna Peltonen was a woman who felt she was just doing her job, and did not want to make a fuss,” says Jean Kamp, an associate regional attorney for the EEOC. ” But she felt that this was wrong and that she had to become involved. The EEOC will support such a woman as strongly as we can.”

Car Dealership Accused of Offensive and Hostile Work Environment

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

Council on American-Islamic Relations blames finance manager

The U.S. Equal Employment Opportunity Commission has accused Rizza Cadillac Inc. of violating federal law by allegedly encouraging a work environment that was hostile and offensive to Muslim and Arab sales employees Medhat Adawy, his son Adam, and Mohammed El-Hajjami when they worked from January 2007 to November 2009.

The Council on American-Islamic Relations (CAIR) spokesman Maryam Arain blamed Rizza Cadillac’s finance manager. Allegedly the dealership fired the Adawys in September 2009 and terminated El-Hajjami two months later. That same year the finance manager was promoted to general manager.

The EEOC claims managers at the dealership created a discriminatory work environment by using offensive slurs as well as mocking references to the Quran and the manner in which Muslims pray.

John C. Hendrickson, the EEOC’s regional attorney said, “Employers may not allow managers to repeatedly make offensive slurs and insults about an employee’s religion or national origin.

“Comments implying that all Muslims are terrorists cannot be excused or minimized by calling it mere ‘banter’ about a minority ethnicity or religion.

The EEOC stands ready to protect Muslim and Arab workers when they are subjected to such harassment.”

Rizza Cadillac failed to take prompt and effective measures…

John Rowe, director of the EEOC’s district office, said an investigation showed “Rizza Cadillac failed to take prompt and effective measures to stop and prevent this abusive misconduct, as they were required to do by federal law. Employees should be judged by their performance, not their religion or ethnicity.”

Harassment based on national origin or religion violates Title VII of the Civil Rights Act of 1964.
The commission filed suit in federal court after first attempting to reach a pre-litigation settlement through its conciliation process.

The lawsuit filed against the new car dealership seeks compensatory and punitive damages and requires the dealership to implement measures to prevent a recurrence of harassment as well as a permanent injunction against future discrimination.

Union to Implement Safety Training Program

By Peter Levine posted in Employment Law on September 24th, 2013

Seven people killed in rigging collapse

A settlement has been reached for a stagehands union that was fined $11,500 when seven people were killed during a Sugarland performance at the Indiana State Fair when the stage rigging collapsed onto the crowd on August 23, 2011.

In compliance with the agreement, the union must now work with the state department of labor to implement a new safety training program that includes fall protection and hazard identification training. This training will also be added to its apprenticeship program. It will be a required of each new union member that they complete the safety course.

The settlement was signed by Indiana’s deputy labor commissioner and the International Alliance of Theatrical Stage Employees Local 30’s business manager and absolves the union of the penalty.

IOSHA Fines for Serious Violations

The union was fined by the Indiana Occupational Safety and Health Administration in early 2012 after the IOSHA found three serious violations in addition to one non-serious violation in connection with the stage rigging accident. Those violations included the agency’s finding that the union failed to ensure “reasonably safe and healthful” work conditions that were free of hazards that could cause death or injuries.

Seven people were fatally injured when high winds caused the stage rigging as well as the stage roof to collapse and topple onto fans awaiting the concert. Stagehand Nathan Byrd was among these seven people, and several other stagehands were among the more than 40 people injured during the incident.

The union appealed IOSHA’s order, including the finding that the union, not the Indiana State Fair Commission, was the employer of the stagehands working the concert. The union contended that it only provided workers to the State Fair Commission and stage owner Mid-America Sound Corp.
Indiana Labor Commissioner Sean Keefer said that the agreement “creates a safer and more protected workplace for Indiana workers in the theater and stage business.”

John Baldwin, the union’s business manager, said that the settlement avoids litigation and is beneficial for the union. “We want to ensure that everybody’s trained and all the workplaces are safe,” Baldwin said. “It will help workers recognize hazards and make them able to look at things and see if there is a potential hazard that needs to be corrected.”

Domestic Worker Bill of Rights Approved by State Legislature

By Peter Levine posted in Employment Law, Unpaid Overtime on September 19th, 2013

Could mark a huge step forward for domestic worker rights

The California State Legislature has approved a bill, “AB-241,” also dubbed the Domestic Worker Bill of Rights, that could mark a huge step forward for domestic worker rights in the state and could make California the second state in the nation after New York to pass such a bill.

Introduced by Democratic Assembly member Tom Ammiano, the bill guarantees overtime pay for domestic workers who work more than nine hours per day or 45 hours per week.

“Growing up, I saw first-hand how hard domestic workers labor without basic worker protections that most of us take for granted,” said coauthor Senator Kevin de León in a press release about the passing. “My mother worked her fingers to the bone cleaning other people’s homes. I’m proud to be a coauthor for this long-overdue measure which will end the historic exclusion of this industry from overtime pay.”

The Senate has approved the bill with amendments 22-12, with the Assembly approving the changes shortly after. Governor Brown now has until October 13 to sign the bill.

Should Brown sign it, he will then convene a committee to review the success of the bill. Lawmakers will have three years to make it permanent.
Brown killed a similar bill last year, arguing that it would place an extra burden on employers, particularly with low-income, elderly or disabled individuals who need constant care.

Senate version focuses on overtime pay for workers

Initially AB-241 included other worker rights, such as meal breaks, sick days and workers’ compensation. The amended version created by the Senate focuses strictly on overtime pay.

“We obviously believe these workers should have all of these rights, but the overtime is by far the most important element we were looking for,” explained Ammiano Communications Director Carlos Alcalá. “We’re happy to go forward with the bill as it is.”

The bill has seen support across the state. In March, hundreds of housekeepers, child-care providers, as well as other domestic workers marched in protest of worker’s rights.

Ammiano’s office said that the bill “rights a historic wrong.”

“Senate passage of the Domestic Workers Bill of Rights is one more step in a movement to make sure these workers get the kind of labor protections they deserve,” wrote Ammiano. “This movement is taking place all over the country and won’t be over until domestic workers rights are spelled out in every state. When this bill gets final approval and signature, California will be a leader in that movement.”

CFPB receives complaints from workers receiving pay on debit cards

By Peter Levine posted in Employment Law, Law on September 18th, 2013

So-called payroll cards used in lieu of traditional pay methods

The Consumer Financial Protection Bureau (CFPB) has issued a bulletin as a result of recent complaints it has received from workers regarding receiving their pay on debit cards, or so-called payroll cards.

According to a 2011 survey done by Federal Deposit Insurance Corp. nearly 4 million U.S. households, or 3.2 percent, have someone who receives wages via a payroll card. The cards are often used by people who do not have bank accounts.

Complaints from workers received included fees for withdrawing cash and checking card balances. Critics of these cards are reporting that the high fees on the cards mean that some workers are essentially making less than minimum wage.

The agency said that by law workers must be able to choose how they receive their wages and that companies cannot require employees to receive their pay this way and that there must be other options. If they choose to be paid with payroll cards, they are entitled to various protections such as disclosure of fees.

McDonald’s challenged for use of payroll cards

A woman who worked at a McDonald’s in northeastern Pennsylvania recently filed a class-action lawsuit challenging the company’s use of payroll cards.
Attorneys for the restaurant owners have said the debit cards are “the functional equivalent” of cash or checks and that the employees consented to the method of payment.

The consumer agency states it has received reports of companies, especially in the retail and food-service industries, paying wages only through debit cards, rather than offering payment options. The agency said it has the authority to enforce the law against anyone in violation, including employers as well as the banks that issue payroll cards.

“The bureau intends to use its enforcement authority to stop violations before they grow into systemic problems,” it said. The CFPB is doing what it can to ensure that the companies comply with the consumer-protection laws for the employees.

Women’s Track Coach Alleges Discrimination

By Peter Levine posted in Discrimination, Employment Law on September 17th, 2013

Suspended for a Prior Relationship

Former Texas women’s track and field coach Bev Kearney, who alleged discrimination based on gender, race and retaliation in an official charge last spring, has not yet filed a lawsuit against the university but likely will within the next month. Coach Kearney won six national titles in track at UT.

Kearney was suspended when school officials discovered she had had a relationship with a student some ten years prior. Kearney alleges she was disciplined for an offense for which other coaches have not suffered similar discipline. Kearney resigned after she claims she was told by school officials they were prepared to fire her.

Case Depends on Similar Offenses

Her case will depend on the extent to which she can show other coaches or other staff members committed the same or similar offense and were then treated more leniently.

The employee must show 1) the comparator is truly comparable, and 2) the offense is the same or similar. And, her case has another twist. The fact she resigned adds another twist. The law recognizes that some situations are so intolerable that a person feels they must quit, but, the situation must be so bad that a person’s health is at stake, or the treatment is so degrading. Under Title VII, a person is not entitled to any remedies if s/he voluntarily quits.

There will surely be an issue regarding the extent to which her termination was truly imminent or likely.

After six months, an employee can ask the EEOC for permission to file suit. The 180-day anniversary of Kearney’s initial complaint with the Equal Employment Opportunity Commission and the Texas Workforce Commission has now passed. In that document, she said she was “subjected to a severely hostile work environment” and former coach intends to sue soon.

UT officials have said they disagree with the allegations in her claim of discrimination, but said they would review them “thoroughly.”

Construction Workers to Receive Unpaid Wages After 6 Years

By Peter Levine posted in Employment Law on September 16th, 2013

Workers Were Not Paid Pevailing Wages

2,051 construction workers, who were employed by Hensel Phelps Construction Company and 172 subcontractors, will now finally receive the wages they are owed for working on the 1,190-room Hilton San Diego Bayfront Hotel from 2006 to 2008.

California Labor Commissioner Julie A. Su announced that $8,072,273 in unpaid prevailing wages has been collected on behalf of the workers in the Commission’s latest sweep to hold contractors and subcontractors accountable for labor law violations in California.

The workers were responsible for almost every aspect of the project; including a wide variety of tasks ranging from foundation drilling to concrete pouring to erection of steel, and even landscaping. Christine Baker, director of the state’s Department of Industrial Relations, determined that the project was a public work because it was paid for out of public funds due to a $46.5 million rent credit provided by the Port of San Diego, which leased the land to the hotel owner.

The San Diego Superior Court issued a writ of mandate reversing the determination of Baker and finding the project was not a public work. The California Court of Appeal for the Fourth Appellate District reversed the trial court and affirmed Baker’s decision.

“This office will vigorously enforce prevailing wage law to collect all of the wages owed to workers,” said Labor Commissioner Julie A. Su. “Prevailing wage laws help ensure that public dollars are used to fund quality construction and good jobs that can support families in California.”

Unpaid wages exceed $8 million

A third party administrator will be paid by Hensel Phelps Construction Company to handle claims for the $8,072,273 owed to the workers. In addition, Hansel will help defray the investigation costs by paying an additional $400,000 to the Labor Commissioner.

The Labor Commissioner’s office reported that last year, more wages and penalties were assessed on public works jobs than any year since 2002.

If you feel your employer has not complied with prevailing wage laws, or has withheld wages from you, it’s important that you look into your legal options with a lawyer who can help.

Overtime Wages: Personal Assistant To A Pop Star

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

Available throughout each hour of the day

A onetime roommate and friend of Lady Gaga (listed in the litigation under her birth name – Stefani Germanotta) is claiming that she was cheated out of her overtime wages after serving as the pop star’s personal assistant for more than a year.

The judge, U.S. District Judge Paul Gardephe said both sides agree she was expected to be available as needed throughout each hour of each day. Gardephe ruled that Jennifer O’Neill’s “on-call” time potentially qualifies for overtime compensation.

Gardephe noted that lawyers said Lady Gaga and O’Neill frequently slept in the same bed while on tour because O’Neill was required to address Lady Gaga’s needs throughout the night, and thus never had her own hotel room.

“Every day is a work day for her, so every day is a work day for the rest of us,” she said. “There is no, ‘We’re going to stay in, we’re going to sleep.’ There is no, ‘Let’s put on sweatpants and go out to the movies and be girlfriends.’ It doesn’t work like that,” O’Neill said.

“You don’t get a schedule”

In her deposition testimony, Lady Gaga had testified: “You don’t get a schedule. You don’t get a schedule that is like you punch in and you can play … at your desk for four hours and then you punch out at the end of the day. This is when I need you, you’re available.”

O’Neill testified she was responsible for sometimes monitoring the singer’s email and telephone communications and for handling all her luggage – generally 20 bags – including clothing, accessories, makeup and toiletries. She was also responsible for making sure that “special food” was available at every location and for Gaga’s schedule.

She said she assisted with costume changes during performances and was responsible afterwards for arranging ice packs, tea and a shower, along with dinner and an exit from the venue.

The judge noted that the women met after Lady Gaga moved into O’Neill’s apartment building on the Lower East Side of Manhattan before 2008, when they became roommates and friends. O’Neill was offered a position as her personal assistant because they were friends and she had experience in the music industry, court papers said.

As with all cases, it will be up to a jury to decide whether Gaga’s demands left Jennifer O’Neill any personal time or whether she was on call 24 hours a day, seven days a week, as she is claiming.

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