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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.”

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.

Breastfeeding in the Workplace

By Peter Levine posted in Employment Law, Law on September 12th, 2013

Health professionals and public health officials promote breastfeeding to improve infant health. Breast milk contains antibodies that protect infants from bacteria and viruses. Breastfed children have fewer ear, respiratory and urinary tract infections and have diarrhea less often. Breastfeeding also provides long-term preventative effects for the mother, including an earlier return to pre-pregnancy weight and a reduced risk of pre-menopausal breast cancer and osteoporosis.

Fair Labor Standards Act (FLSA) requires breaks for mothers

It’s important for both employers and employees to be aware that the Fair Labor Standards Act (FLSA) requires breaks for mothers to express breast milk during the workday. Breastfeeding requires supportive environments, including workplaces.

A provision of the FLSA requires employers to provide a reasonable amount of break time, as well as a private and clean space to express milk as frequently as needed and wanted by a nursing mother, for up to one year following the birth of the child. Here are some other requirements:

– The space must be shielded from view and free from intrusion by coworkers or the public.
– The use of a bathroom is not an acceptable space to provide to nursing mothers expressing milk.
– Nursing employees must have access to this space each time they need to express milk.
– The frequency of breaks needed to express breast milk as well as the duration of each break depends on several factors and may vary.

The Labor Department’s Wage and Hour Division has published an employee rights card that outlines the FLSA’s basic requirements and break laws and also includes a list of resources where additional information can be found. It also includes a QR code that can be scanned with a smartphone and shares how to file a complaint with the division in case a woman feels her rights have been violated.

This year the Labor Department is celebrating the 75th anniversary of the Fair Labor Standards Act. The FLSA was passed in an effort to end oppressive child labor as well as establish minimum labor standards regarding workers’ “wages and hours.” The “nursing mothers” provision is just one way the FLSA has evolved over the decades to protect and strengthen an ever-changing and growing workforce.

Wrongfully Terminated Bus Driver Reinstated by the NLRB

By Peter Levine posted in Employment Law on September 9th, 2013

Still waiting for his back pay

A year ago, the National Labor Relations Board (NLRB) ordered Latino Express to reinstate driver Pedro Salgado with back pay and benefits after he was fired for trying to organize drivers at the Chicago-based bus company.

Salgado, who was unemployed for about a year, was reinstated as a driver at $14 an hour. But he’s still waiting for his back pay.

His case is among the more than 100 in which the NLRB ruled in favor of workers and unions but which remain in limbo as a result of company challenges of the NLRB’s authority.

The issue stems from an appellate court ruling that presidential appointments to the NLRB in 2012 were unconstitutional due to the fact they were made during a short Senate recess. In June, the U.S. Supreme Court agreed to review the lower court’s decision at the request of the Obama administration.
In the interim, companies have seized on the appellate court’s decision, stalling other apparent worker victories.

“There are forces in this country that don’t like the labor law and what it stands for but they know that it would be unpopular to attack workers’ rights directly, so instead of attacking workers’ rights directly, they attack the agency that protects workers’ rights, but the effect is the same, it hurts working people,” said Lynn Rhinehart, general counsel for the AFL-CIO.

Some Republicans have characterized the labor board under President Barack Obama as a rogue agency that has tried to obtain and hold onto power by issuing rules rather than just hearing disputes between labor and management.

The board has been led by Democrats since 2010, with no Republicans since December as the appointment process stalled amid a stalemate between the Obama administration and Congress. Last week, the Senate confirmed five members of the NLRB, including two Republicans. With these two new Republican members, the board will at least consider a business agenda, said Steve Bernstein, a labor attorney who represents management.

“For the first time in quite a while, you’ll have the prospect for real dissent,” Bernstein told Bloomberg News. “Dissents are very valuable for the courts on appeal, because they have an opportunity to perhaps gauge both sides of an issue more effectively.”

Unfortunately, experts expect the NLRB to only deal with cases going forward and not to revisit cases that are pending before the courts.

“Justice is not denied, but delayed, and that’s not acceptable,” said Leah Fried, a spokeswoman with the United Electrical, Radio and Machine Workers of America union.

Barista Fired for Eating Out of the Garbage: Wrongful Termination?

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

Starbuck’s policy claims it’s for health reasons

A Starbucks barista claims he was recently fired for eating one of the cafe’s famous breakfast sandwiches — out of the garbage.

Coulson Loptmann, 21, says his manager told him eating something from the trash is “considered stealing,” according to a report in Seattle-based alternative weekly The Stranger. Loptmann explained, however, the sandwich was expired and had already been marked out.

“It sounds ridiculous, but having bread and mustard and mayonnaise and some kind of meat and lettuce—it doesn’t sound expensive, but that adds up. … There were some days where I lived off of Starbucks food,” said Loptmann, who used to get a 30 percent discount and a few free coffees a day from Starbucks.

On the day he took the sandwich from the garbage, Loptmann said: “I hadn’t eaten all day and I was on a seven-hour shift.”

He didn’t think anyone at the company would have a problem with it but he was wrong.

A week later, his manager sat him down and told him she had found out about him taking the sandwich from the garbage and took the matter to human resources. He was then told: “they consider it stealing, and it’s against policy. So I’m sorry, but I have to terminate you.” Loptmann was fired on the spot.

Loptmann reports he made $9.94 an hour for 23 to 32 hours a week and brought in another $30 in tips — at most $348 before taxes and that he had asked for more hours, but did not receive them. He survives partly on food stamps because his paycheck isn’t always enough for him to buy food.

Eating marked-out food at Starbucks is against company policy — because it’s considered stealing, and for health reasons. “We don’t want our partners to consume something that could make them sick,” Starbucks spokesman Zach Hutson said.

Hutson confirmed Loptmann’s firing and said an employee wouldn’t normally be let go for a single violation of this policy, but Loptmann was let go in light of a history of “documented performance issues,” which he declined to specify.

Fast Food Workers Face A Tough Situation

The situation for fast food workers can be tough with little chance for advancement and 70 percent earn between $7.26 and $10.09 an hour.

“Not only are wages low in these industries, but you compound it with the fact that you’re not even getting full time hours and that contributes to the very high poverty rates that these workers experience,” said Tsedeye Gebreselassie, attorney at the National Employment Law Project. Many of the workers are forced into such government programs as food stamps and subsidized housing.

All this comes on the heels of a worker strike planned across the nation this month.

First Experience with Sexual Harassment

By Peter Levine posted in Law, Sexual Harassment on September 4th, 2013

Heather Huhman was just 15 when she first experienced and reported harassment from a co-worker.

Though the co-worker was ultimately fired, she endured the conduct for several months after she reported it – waiting for her complaint to go up the chain of command.

Though many Americans are victims of sexual harassment in the workplace, many don’t report it for fear of retaliation or worries their co-workers will make them feel ashamed.

Thirteen percent of respondents to a recent HuffPost/YouGov poll reported having been sexually harassed by a boss or another superior. Nineteen percent have been harassed by a co-worker other than a boss or superior. A full 70 percent said they never reported it.

Indeed, while the Equal Employment Opportunity Commission received about 7,500 charges of workplace sexual harassment in 2012 — the actual number of people who have experienced sexual harassment at work is probably much higher, according to Fatima Goss Graves from the National Women’s Law Center.

“It’s a tough situation. You don’t necessarily want to take on the hassle, expense and personal costs that are involved,” Graves said.

Harassment Often Goes Unreported

Victims often don’t report the harassment, Graves said, out of concern that they’ll be made to feel they’re somehow to blame for any unwelcome advances and because the various routes to complain are hard to navigate. In addition, fear of retaliation is a “legitimate” concern.

The HuffPost poll found that one in five women said they’d been harassed by a boss, and one in four said they had been harassed by another coworker. Although less likely, men also reported being sexually harassed — 6 percent said they were harassed by a boss and 14 percent by a coworker.

In addition, 21 percent of respondents to the poll said that they had witnessed someone else being sexually harassed at work. But among those who had, only 33 percent said that they had reported it.

Though many companies have education programs aimed at preventing sexual harassment and policies in place to deal with it after the fact, there’s still a long way to go before the behavior is truly viewed as unacceptable by all workers on the ground.

Harassment on A Large Scale in City Government

By Peter Levine posted in Law, Sexual Harassment on September 3rd, 2013

Seventeen Women allege Sexual  Harassment

In the past weeks, starting on July 10, at least 17 women have alleged harassment saying the 70-year-old former Congressman and current San Diego Mayor, Bob Filner, made unwanted sexual advances.

Irene McCormack Jackson, the mayor’s former press secretary, was the first woman since the scandal broke to bring a lawsuit against the mayor, claiming that the mayor had harassed her. An 11-page suit, filed in San Diego County Superior Court, accuses Filner on one occasion of placing McCormack Jackson in what she described as a virtual “head lock” – while he suggested they get married and asked, “Wouldn’t it be great if we consummated the marriage?” The complaint quotes Filner on a separate occasion, in the press secretary’s City Hall office, as telling her, “When are you going to get naked? Come on and give me a kiss.”

“I had to work and do my job in an atmosphere where women were viewed by Mayor Filner as sexual objects or stupid idiots. I saw him place his hands where they did not belong on numerous women,” McCormack Jackson has said.

McCormack Jackson was hired by Filner in January but resigned in June and is now director of communications for another city department.

“I am saddened by the charges that were leveled against me”

In response to the lawsuit Filner has said, “I am saddened by the charges that were leveled against me. Once due process is allowed to unfold, I am certain there will be a better understanding of this situation. I remain committed to the people of San Diego and the work that needs to be done. My dreams and plans for moving this City to new heights are continuing.”

Calls for Filner’s resignation began on July 11, when former San Diego city councilwoman and fellow Democrat Donna Frye joined two attorneys in leveling allegations that at least one woman had accused the mayor of harassing her.

Filner responded then by acknowledging that he had “failed to fully respect the women who work for me and with me, and that at times I have intimidated them.”
A number of prominent local Democrats have also publicly urged Filner to quit.

Filner resigned Friday August 30. A special election to replace him has been set for November 19.

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.

Warehouse workers suspended for taking “heat” breaks

By Peter Levine posted in Law on August 30th, 2013

“We take heat breaks two or three times a day”

Ten workers at a Walmart supplier’s Southern California warehouse said they were suspended indefinitely after taking a five-minute break in temperatures of more than 90 degrees.

“We take heat breaks two or three times a day,” Ricardo Hernandez, an employee of the warehouse, said. “But then on Friday, they told us they were suspending us for taking a heat break.

The workers believe they were suspended from the warehouse in retaliation for previously raising concerns about their working conditions.

This past May the union filed a complaint with the California Occupational Safety and Health Administration alleging blocked fire exits, inadequate access to water, and collapses of towers of boxes. State workers inspected the warehouse following the complaint. The investigation is still ongoing and should conclude about end of November.

Video cameras in employee break rooms

But soon after the inspection, the warehouse installed video cameras in employee break rooms and brought in consultants who advised workers not to discuss working conditions, reported Hernandez.

So in late July about 30 of the roughly 200 workers at the warehouse participated in a 2-day strike to protest what they call intimidation; spying and retaliation for raising concerns about working conditions.

“There’s even [a camera] by the restroom. They can see every time you go the restroom,” Hernandez said. “I think they’re trying to intimidate us, to see every move we make.”

“I want management to hear us and take a walk in our shoes to see what we go through every day. This warehouse is really tough to work in under such hot temperatures with no cool water,” he said, but “they ignore us. They take us as a joke.”

Heidi Baizabal, a single mother of four who had worked at the warehouse for five years before being suspended believes her suspension was as a result of her participation in the July strike and for asking for better working conditions. “I feel bad. I feel depressed because my family depends on this,” Baizabal said.

Guadalupe Palma, director of Warehouse Workers United, said all 10 of the recently suspended workers participated in that two-day strike in late July.
Warehouse Workers United, a labor union that supports the workers but does not officially represent them, filed an unfair labor practice charge with the National Labor Relations Board for each of the 10 suspended workers.

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