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Entries in employee claims (4)

Monday
Aug252014

For Whom the Calls Toll: Employers May Be Responsible for Cell Reimbursements

Wage and Hour DefenseClass Action Defense

by Sue M. Bendavid

818.907.3220

 

Here's another case that may result in further liability exposure for employers in California. The California Second Appellate District Court ordered the trial court to reconsider class certification for a group of 1,500 customer service managers who used personal cell phones for work related calls.

In Colin Cochran v. Schwan's Home Service, Inc., the plaintiff sued his employer for reimbursement for his personal cell phone service. Cochran argued that Schwan's violated Labor Code Section 2802 and engaged in unfair business practices. He sued for declaratory relief and statutory penalties under the Private Attorneys-General Act (PAGA) for himself and on behalf of a putative class of fellow employees.

The trial court refused to certify the class, noting that if the class members did not incur losses (e.g., because they had plans with unlimited minutes) there could be no liability on a class wide basis.  The trial court ruled that “statistics from a survey could not be used to prove liability, especially because there was no pattern or practice regarding the expenditures of the class members."

The argument against class certification was that the commonality requirement could not be met since the class members have different cell service carriers and many different phone plans provided by those carriers – thus determining expenditures for individual class members would not be feasible via the statistical sampling method proposed by Cochran.

Additionally, Cochran's girlfriend may have paid for the plaintiff's cell service which may render the class representative's claims for damages irrelevant.

Employee Class Action – It's All About the Sampling

The Court of Appeals disagreed, and cited Brinker Restaurant Corp v. Superior Court 2012 in the opinion: "if the defendant's liability can be determined by facts common to all members of the class, a class will be certified even if the members must individually prove their damages."

The Appellate opinion also referenced Duran v. U.S. Bank National Assn. 2014, and stated the trial court should consider the principals of Duran in considering whether to allow statistical sampling evidence in establishing either liability or damages, noting:

Duran noted that the use of statistical sampling to prove liability in overtime class actions is controversial, and explained that the use of it to prove damage is less so because "the law tolerates more uncertainty with respect to damages than to the existence of liability."

The court's opinion also stated that the trial court erred in assuming an employee does not suffer a loss under §2802 if a third party pays for the employee's cell service. Essentially, it's not the employer's business to delve into how employees handle their own, personal business.

In conclusion, the Court stated:

We hold that when employees must use their personal cell phones for work-related calls, Labor Code §2802 requires the employer to reimburse them. Whether the employees have cell phone plans with unlimited minutes or limited minutes, the reimbursement owed is a reasonable percentage of their cell phone bills.

Employer Takeaway

Be careful if your employees use their personal cell phones for work related calls.

If possible, do not REQUIRE your employees to have a cell phone. If personal mobile devices are necessary, consider reimbursing your employees for calls and for part of the costs of service, even if that employee has an unlimited calling plan.

 

Sue M. Bendavid is the Chair of the Employment Practice Group at our firm. Contact her via email: sbendavid@lewitthackman.com, or via phone: 818.907.3220, for more information. 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Monday
Jul152013

Wacky Employee Claims: Reasonable Accommodations for Unreasonable Requests?

Lawyer for EmployerEmployment Defense

 

by Nicole Kamm
818.907.3235

 

 

As an employment defense attorney, I often think I’ve heard it all: every conceivable employee complaint, late-to-work excuse, and “reasonable” accommodation request. Still, from time to time, I come across an employee claim that surprises even me.

Here are some recent ones:

Spa Sued Over Brazilian Wax Training: A woman hired at a spa as a “wax specialist” alleged her recent termination was discriminatory. As part of her training, her employer required her to receive a Brazilian wax – in front of her female colleagues. The employee refused and complained, and claims she was fired in retaliation. 

Hair Color Discrimination: Earlier this year, the NYPD issued an anti-bias message alert warning sergeants and lieutenants about harassment or discrimination against red-haired officers. This alert went mostly unsupported by those who did not feel redheads were a particularly disadvantaged group. However, employers should note, to the extent hair color is associated with race, ethnicity or national origin, it could give rise to a claim for employment discrimination.  

Fired for Irresistable Attraction?: A female employee sued for wrongful termination after her employer fired her based on his concerns that if she continued to work for him, he would have sex with her and it would ruin his marriage. The lower court ruled this did not violate the law. The employee was not fired because she was a woman, but because of her “irresistible attraction.”  The Iowa Supreme Court recently confirmed the lower court decision.  

Vegan’s Religious Accommodation Case to Proceed: A former hospital employee alleged she was fired for refusing to take a flu shot, which is derived from eggs, claiming such discharge violated her religious beliefs because she is a vegan. The court refused to dismiss the case, finding “it plausible that Plaintiff could subscribe to veganism with a sincerity equating that of traditional religious views.”

Disabled by Insomnia: A court recently denied an employee’s claim that her insomnia, which prevented her from sleeping more than four hours per night, was an ADA-protected condition. While insomnia may be a disability under the ADA if it substantially limits a major life activity (which includes sleeping), in this case the court found the employee was terminated because she failed to properly keep time sheets and was unable to “communicate accurately and truthfully.” 

Can Height Be a Disability?: An Arizona Department of Agriculture worker recently filed a claim for disability discrimination claiming she was forced into a field work position in which she would not be able to drive vehicles because she was too short (4’10”). The Court held, in some contexts, her short stature could “substantially limit one or more major life activities” (i.e., rise to the level of a disability). 

Time Off to Head-Bang: Though this one comes from overseas (Sweden), it is a good one. A 42-year old dishwasher, who claimed he was addicted to heavy metal, requested his employer reasonably accommodate time off to attend concerts and listen to music while working. 

 

According to EEOC: Disability claims have risen over 66% since 2000; while religious discrimination claims, though still relatively few in number, have nearly doubled.

The bottom line is this: Employers should be prepared for anything. Handling employee complaints and accommodation requests is certainly not an easy job. But staying on top of the ever-changing employment laws and consulting employment counsel when needed will go far to minimize the risk of claims and litigation. 

 

Nicole Kamm is an Employer Defense Attorney at our firm. Contact her via email: nkamm@lewitthackman.com for more information.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.
Friday
Mar222013

Wage and Hour Trends – The Rise of the Intern

Employer Defense Lawyer Los Angeles

 

by Sue M. Bendavid
March 22, 2013

Employer Lawyer Los Angeles Google+

 

Interns. Remember the good old days when as an employer, you could expect them to arrive punctually, help out in the day-to-day operations of your business, and be asked for little in return but job training (which used to be considered invaluable for those trying to break into the biz) and a glowing reference?

Those days may be long gone, if trends in employment litigation are any indication – and these trends aren't just in individual claims. Class actions are being brought against several very high profile employers.

In February 2012, a former Harper's Bazaar intern filed suit against the Hearst Corporation, claiming 40-55 hour work weeks without compensation. A New York Court later granted class certification – meaning approximately 3,000 former interns were joined in the suit against the media mogul.

Last summer, two interns working on the film, Black Swan, expanded their wage and hour claim to include all unpaid interns working for Fox Entertainment Group over the last two years. In December, talk show host Charlie Rose agreed to a six figure settlement for 190 unpaid interns who worked for The Charlie Rose Show between 2006 and 2012.

Also in December, a former assistant football coach initiated a class action claim against Hamilton College, alleging the school misclassified him and other plaintiffs as interns, paid them sums that didn't meet minimum wage, failed to pay overtime, and failed to pay split shift pay.

The above suits were all filed in New York, but given this increase in litigation initiated by interns, it may be time to discuss what an internship is in the legal sense, and how California employers can reduce the risk of claims.

 

How to Avoid Wage and Hour Claims by Unpaid Interns

 

What is an internship? Ideally, it's an educational experience, particularly if it's an unpaid internship. The United States Department of Labor's Wage and Hour Division (WHD) has very specific guidelines regarding hiring interns and offering internships on an unpaid basis.

Whether you're running a for-profit business or a not-for-profit organization and are thinking about getting an intern to help, you should consider what you're offering vs. what you'll be getting in return. The WHD provides a six point test to help employers decide if they need to compensate interns or not.

 Ask yourself these questions:

  1. Will you provide training similar to that provided in an educational environment? You should provide a learning environment, not a work environment.

  2. Is the internship you're offering a benefit to the intern? Will the student gain valuable "real job" experience, or will they be doing the "busy work" no one else wants to do?

  3. Will the intern displace a regular employee? If yes, you should compensate the intern. Otherwise, make sure the student is working under close supervision of your staff.

  4. Will you as an employer, be gaining any advantages from bringing in an intern? If yes, you may need to pay your intern. If your work is actually impeded by the presence of the intern, chances are better that you'll be providing more of the educational environment the WHD recommends.

  5. Will the student be entitled to a job at the end of the internship? If your answer is yes, that actually encourages the intern to work, rather than learn, which could lead to potential wage and hour claims.

  6. Does the intern understand that s/he is not entitled to wages? You should make clear up front, whether or not you will be compensating the intern for her/his time.

The six elements satisfy federal criteria. Not long ago, The California Division of Labor Standards Enforcement, or DLSE (commonly known as the Labor Board), adopted these six criteria as well (and disavowed certain other factors previously used by the DLSE).

This was according to a DLSE opinion letter handed down April 7, 2010:

The DLSE has consistently applied federal interpretations of statutes, regulations, and case law under the FLSA [Fair Labor Standards Act] where there is no inconsistency with State laws…Since DOL's [Department of Labor's] 6-point formulation is derived from the early U.S. Supreme Court's opinion in [the] Portland Terminal case and has been applied (with varying degrees of deference) by the federal appellate courts, it is reasonable and appropriate for the DLSE to look to the factors used by the DOL in determining the exemption for purposes of coverage of State minimum wage coverage for trainees/interns in the absence of a State statute or regulation on the matter.

It's important for employers to correctly classify their employees, independent contractors and interns. Misclassification can leave you open to claims for unpaid wages – including a failure to pay minimum wage and unpaid overtime, waiting time penalties (for not paying wages on a timely basis), and other penalties and tax claims. .

When all is said and done, remember that the person who should most benefit from an unpaid internship is the student. That means you are offering real educational opportunities, and not just taking advantage of getting some extra tasks done, or of lightening the work loads of your regular employees.

 

Sue M. Bendavid is a Wage and Hour Attorney who protects and defends employers from employee claims. For more information about wage and hour issues and avoiding employment litigation risks, contact Ms. Bendavid via email: sbendavid@lewitthackman.com.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.
Thursday
Apr282011

Top 10 Management Mishaps

Lawyer for EmployerWage and Hour Defense

 

by Nicole Kamm
818.907.3235

 

Editor's Note:  This list by Los Angeles Employment Lawyer Nicole Kamm was initially posted on the blogsite TheHiveMarketing.com on April 18, 2011. Please visit The Hive Marketing if you would like to read this post in its original format. 

 

Today's economy makes managing employees much more difficult. There's increased pressure to do more with less -- and in many cases, a lot less.  Mistakes inevitably occur. But you can sidestep some of these pitfalls if you know what to watch for.

Here are the Top 10 Management Mishaps to avoid so you can take steps to stay compliant with California employment laws, and hopefully safeguard your company against potential claims:

 

1.  E-mail Hazards - Watch What You Write

 

Hazard #1A more senior employee e-mails you that after 25 years with the Company, he is considering retirement.  You reply that it is about time he retire and attach information about Social Security and MediCare benefits.

Hazard #2:  You and an employee argue or disagree, which prompts you to vent by sending some particularly nasty comments about the employee to another supervisor. 

Hazard #3:  While checking your personal e-mail account, you watch a hilarious YouTube video full of offensive language. . .which you forward to a coworker you know will love it.

Recommendation

Cases in litigation are often made or broken by e-mails. Common e-mail mistakes include:

▪  Thinking e-mails are deleted after pressing the delete button.

▪  Believing e-mails are confidential if written only to internal management.

▪  Viewing e-mails as a conversation instead of a formal letter.

Don't hit the "Send" button until you visualize your e-mail as a 3’x4’ poster read aloud by opposing counsel in front of a 12-person jury.  This exercise helps you avoid some of the most common e-mail mistakes.

 

2.   Document Everything! (Even Verbal Warnings)

 

Remember: “If it is not in writing, it didn’t happen.”

As a Los Angeles employment lawyer, my mantra is “document, document, document.” 

As a human resources or management executive, you can help cover your bases with notes to the file, letters to the employee, memos to general staff, e-mails to management personnel, minutes of management meetings, etc. 

Everything that happens in the workplace that may be employee claim-related should be documented. And this definitely includes in-person meetings and verbal warnings.

 

3.   Improper or Incomplete Documentation - Be Detailed

 

 

Remember: “If it’s not documented well, better that it not be documented at all.”

Incorrect or incomplete documentation weakens even the strongest case.  As an employer, you should review all documentation and consider consulting an employment attorney before finalizing any writing.

 

4.  Reviews and Terminations - Say What You Mean

 

Sometimes human resources or management can “sugar coat” reviews and employee termination notices.  This could turn sour if the employee is angry and inclined to sue. 

Avoid telling the employee, “Your layoff has nothing to do with your performance." If  the employee takes you to court, it's hard to make a case for poor performance when you sugarcoat. 

Employees in litigation commonly use positive performance reviews when terminated in an effort to demonstrate they were good performers and the reasons they were given for termination were “pretextual,”  defined as “a fictitious reason that is concocted in order to conceal the real reason.” Examples of pretextual reasons include termination:

▪  Due to a work-related injury,

▪  For lodging a complaint (e.g., harassment, discrimination), or

▪  For excessive absences related to “protected activities” (e.g., disability, jury duty, witness duty).

Recommendation: 

Plan what you are going to communicate before saying or writing it.  Be honest and concise.  Explain the reasons behind the review or termination, but don’t be defensive or argue.  Remember, a single review or termination may be the linchpin for a future claim.

 

5.  Employee Complaints - Never Ignore Them

 

As a supervisor, you must notify HR or upper management immediately when you learn of potentially unlawful conduct.  Legally speaking, once a supervisor is aware of harmful or illegal conduct, the company is deemed to be on notice.

As a business owner or HR executive, you must promptly conduct an investigation when certain complaints arise (e.g., harassment, discrimination, etc.) or potentially illegal conduct is reported.  Employers are under a legal obligation to conduct investigations in these situations.

And investigations are essential to managing the workplace and resolving disputes before lawsuits arise.  You'll want to protect yourself as properly conducted investigations often lead to an important defense after a lawsuit is filed. 

Here are some basic tips for conducting investigations:

▪  Interview both the complainant and alleged perpetrator.

▪  Interview additional witnesses.

▪  Gather additional evidence.

▪  Document every step.

▪  Evaluate and conclude, based on the facts.

▪  Assess and address (if necessary) the future impact of the complaint on the workplace environment.

 

6.  “Off the Clock” Work - Pay Now or Pay Later

 

You must keep track of all hours worked by non-exempt employees.  Record the stop and start time of all work being performed, including the beginning and ending of each meal period.  You'll need to pay for all work being performed by employees (including any “off the clock” work).

Employees often accuse supervisors of pressuring employees to work “off the clock," or of “shaving” time records in an effort to reduce costs and increase bonuses for themselves.  And sometimes managers make honest mistakes, but mistakes don't preclude potential lawsuits.

Example: Employee forgets to clock in or out and manager makes correction on time card.

Recommendation: 

Have your employee initial the change to acknowledge that the corrected time accurately reflects the time worked.

 

7.  Meal and Rest Break Periods - Enforce Them

 

Meal Break Rules:

▪  As an employer, you're required to provide a 30-minute unpaid, duty-free meal break for each work period of more than 5 hours under California law.  However, you and your employee may waive the meal period by mutual consent IF the total work period is no more than 6 hours. 

▪  A second meal period of not less than 30 minutes is required if an employee works more than 10 hours per day.  But if the total hours worked is no more than 12 hours, you and your employee may waive this second period by mutual consent -- but only if the first meal period was not waived.

▪  Employees must be relieved of all duty during their 30-minute meal period.  “On duty" meal periods are permitted only when (i) the nature of the work prevents an employee from being relieved of all duty, and (ii) agreed to in writing by you the employer and your employee. 

The penalty for failing to provide a meal period is one additional hour of pay for each workday the meal period is not provided.

Recommendation

You should make sure employees are provided meal breaks and that records reflect meal breaks. Make sure the breaks are taken (i.e., require employees to clock out and in for the full 30-minute break).

 

Rest Break Rules 

▪  As an employer, you must “authorize and permit” your non-exempt employees to take 10-minute rest breaks every four hours. 

▪  However, no rest break is required for employees whose total daily work time is less than 3.5 hours.  Rest breaks should be taken in the middle of each work period, if possible.  You cannot allow your employees to combine rest breaks with meal breaks or use them to come in late or leave early.

▪  Rest periods are counted as time worked, therefore you must pay your employees for this time.  The penalty for failing to provide a rest period is one additional hour of pay for each workday the rest period is not provided.

Recommendation:

Do not deny employees the ability to take 10-minute rest breaks.

 

8.  Enforce Overtime Rules & Pay for Overtime

 

In California, you must provide time-and-one-half the employee’s regular rate of pay for:

 ▪  All hours worked beyond eight in a single workday (or 40 in a workweek), and

 ▪  The first eight hours worked on the seventh consecutive day worked in a single workweek. 

Employers must pay double the employee’s regular rate of pay for:

▪  All hours worked beyond 12 in a single workday, and

▪  The hours worked beyond eight on the seventh consecutive day worked in a single workweek.

California employers my delay payment of overtime wages earned in a pay period no later than the payday for the next pay period. 

If delaying to the following pay period is unavoidable, you must itemize the hours as corrections on the pay stub for the period in which they are paid and identify the date of the pay period to which they are attributable.

A California employer's failure to pay overtime results not only in an obligation to pay the overtime owed, but the failure may also subject you to other penalties under the Labor Code.

 

9.  Leave Rules - Know Them

 

The state requires certain leaves by law, while others are optional.  To make it more confusing, some leaves apply only to companies employing certain numbers of people. 

For example, Pregnancy Disability Leave (PDL) applies to employers with five or more employees whereas the federal Family and Medical Leave Act (FMLA) and state California Family Rights Act (CFRA) only apply to employers with 50 or more employees. 

All employers (even those with only one employee) must provide workers’ compensation disability leave and jury and witness duty leave.  Yet, no employer is required to provide paid vacation or sick leave.

Because the different types of leaves, both required and not, interact with each other in different ways, it is important to understand the various laws and corresponding obligations.

 

10.   “Protected” Activities - Don't Write Up or Terminate Employees for These

 

California law lists a long roster of activities that you cannot cite as grounds for employee termination.  Nor should employees be written up for these reasons.  Some of these include: 

▪  disclosing wages

▪  political activity

▪  limited time off for a child’s school or day care activities

▪  refusing to take polygraph test

These are the top 10 reasons employers leave themselves open to potential legal battles, but they are not all of the reasons. If you feel you need help understanding California's employment laws, you should seek legal counsel. A good Los Angeles employment lawyer can help you navigate the complicated territories of hiring and firing practices, carrying out proper leave and break policies and more. 

Nicole Kamm, Esq. is an Employment Lawyer who represents clients in all aspects of employment law, from counsel to litigation.  For more information, contact Ms. Kamm at (818) 990-2120.

 

 
Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

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