“Millionaire Matchmaker” Contestant Facing Labor Law Allegations

Last January, Californian Stephanie Costa appeared on Millionaire Matchmaker, a reality TV program on Bravo. The show helps self-described millionaires find suitable romantic partners. On the show, the 30 year-old Costa boasted about her Beverly Hills mansion and her multiple motor vehicles, all of which she stated she paid for by owning the company Bedford Care Group. Bedford Care Group runs six assisted living facilities for the elderly throughout California.

While Costa was trying to become a reality TV star and flaunting her wealth, she was also allegedly mistreating her employees by violating several state labor laws. Now, just over a year after her luxurious television appearance, Costa instead finds herself in a legal hearing to appeal a decision against her by the Office of the California Labor Commissioner.

Labor Commissioner Decision

Last year, after an investigation, the California Labor Commissioner found that Costa and Bedford Care Group violated several state wage and hour laws with the following actions:

• Expecting employees to work significantly extended shifts;

• Not allowing the proper breaks for meals or rest under the law;

• Not paying certain employees the 2013 state minimum wage of $8.00 per hour (the CA minimum wage will rise to $9.00 per hour on July 1, 2014);

• Not paying the required time and a half overtime wages for hours worked over 40 per week;

• Failing to provide proper itemized pay statements that would allow employees to track their hours and check for accuracy.

The employees stated they continued working for Costa because they cared about the elderly residents of the Bedford Care Group facilities, however 11 former employees finally brought a claim against Costa and the company. The plaintiffs stated they could no longer stand for the injustice of the labor law violations, and that they hope their case will not negatively affect the residents of the facilities in any way.

After investigating the claims, the Labor Commissioner determined that Bedford Care Group owes the 11 former employees and the state nearly $1.6 million in compensation and penalties. The penalties break down as follows:

• $1.3 million to the employees for unpaid overtime;

• $95,053 to the employees for missed meal and rest breaks;

• $17,025 to the employees for unpaid minimum wage;

• $114,500 to the state in civil penalties for the violations.

Costa Appealing

Costa and the Bedford Care Group are not going down without a fight, as she entered the Labor Office for an appellate hearing in late January 2014. Costa claimed she had timesheets to demonstrate that the company paid all employees adequate wages for the hours they worked. However, the 11 former employees stated these timesheets were falsified and maintain their allegations. Employees of the Bedford Care Group took to the streets in protest while Costa was in her appeal to try to make their case public. The appellate decision is still pending.

California takes wage and hour laws very seriously. If you believe your employer has violated any labor laws, you should not hesitate to contact the Pershing Square Law Firm for assistance with a possible case today.

DOL Investigating Oakland Raiders Labor Lawsuit

Professional sports leagues in the United States have faced a rash of lawsuits in the past year, many of which involve allegations of labor law violations. Both the San Francisco Giants and the Miami Marlins faced lawsuits from former unpaid interns who claimed they should have received a minimum wage as employees. The Giants further agreed last year to pay a group of security employees over $500,000 for various labor law violations. The most recent professional sports team to garner national attention for possible labor law violations is the Oakland Raiders.

The lawsuit was filed by Lacy T., who is part of the cheerleading squad for the team, known as the Raiderettes (for safety purposes, cheerleaders only reveal their first names). Both current and former cheerleaders have joined in the class-action suit, which alleges several wage and hour violations against the football organization.

The plaintiffs claim the Raiders violated state labor laws in the following ways:

                                   

• The cheerleaders were expected to work more than eight-hour shifts without necessary breaks or overtime compensation, violating state requirement for meal and rest breaks, as well as overtime laws.

• The Raiders withheld pay until the end of the season, violating California laws regarding paydays and pay periods.

• That paycheck at the end of the season paid $125 per game for 10 games, which adds up to only $1,250 for 9 months of work, including 3 rehearsals per week, workouts, fittings, event appearances, photo shoots, and other mandatory meetings. Overall, the pay comes out to approximately less than $5.00 per hour for a season’s work, which violates California’s minimum wage laws.

•  The Raiders require the cheerleaders to pay for their own expenses related to required hair styling, makeup, and travel.

• The Raiders further unlawfully deduct from a cheerleader’s paycheck for minor infringements, such as chewing gum, bringing the wrong set of pom-poms to practice, or wearing the wrong type of outfit to rehearsal.

After all of these alleged violations, many Raiderettes do not even break even for the season.

The federal Department of Labor (DOL) has recently involved itself in the lawsuit by launching an investigation into violations of federal labor laws. The DOL is apparently looking into how several other teams treat their cheerleaders, as well. If the DOL finds that the Raiders violated federal employment laws, they have the power to order the organization to reimburse the cheerleaders for twice the amount of compensation they were originally denied. For this reason, the Raiders may end up paying significantly more than if they had simply followed labor laws to begin.

Some employers, such as professional sports organizations, believe they are above labor laws and do not have to follow them. However, cases like this demonstrate that employment laws apply to professional sports teams like any other employer, and the Raiders may face the consequences like any other company.

If you believe your employer has violated any wage, hour, or other labor laws, contact the Pershing Square Law Firm for assistance today.

Highest State Minimum Wage Proposed in California

In his recent State of the Union address, President Obama urged legislators to take charge in pushing minimum wage increases through Congress. California State Senator Mark Leno (D-San Francisco) took the request to heart, as he introduced a state bill on February 3, 2014 that would make California’s minimum wage the highest of any state if passed.

Currently, a law is in place that will raise the state minimum wage from $8.00 per hour to $9.00 per hour in July 2014, then again to $10 per hour in 2016. There is no provision in the current law for further annual increases based on inflation after 2016. Sen. Leno’s proposed bill would step up the wage increase as follows:

• $11.00 per hour in 2015;
• $12.00 per hour in 2016;
• $13.00 per hour in 2017;
• Annual adjustments tied to inflation starting in 2018.

While the bill is expected to garner some opposition, Leno defends the aggressive increases by citing the high cost of living in California. He stated that the federal minimum wage is simply a starting point, and state legislators should identify the needs of residents of their state and adjust the state minimum wage accordingly.

Current California Minimum Wage

Residents working 40-hour weeks at the existing state minimum wage of $8.00 per hour take home $16,640 annually, before taxes. The poverty line in California for a four-person family with one wage earner is $23,850. According to the United States census, this wage discrepancy puts approximately 24 percent of California residents under the poverty level despite working full-time jobs.

State Senator Leno owns his own company and pays his workers a minimum of $16 per hour. Leno states that paying higher wages reduces turnaround and increases employee productivity. He stated there is no excuse for companies making high corporate profits while some of their full-time employees need food stamps and other government assistance to survive.

Earlier this year, 600 prominent economists from the Economic Policy Institute signed a letter to federal lawmakers urging them to pass a federal minimum wage of $10.10 per hour. These economists assert that raising the minimum wage will bring many families out of poverty, thereby reducing the need for government public assistance and increasing spending by consumers. Recently, some conservative politicians and entrepreneurs in California have jumped on board, demonstrating support for a minimum wage increase and reduction in poverty.

Though the $13 per hour proposal would be the highest state minimum wage in the United States, it will still not be the highest local minimum wage. Last year, the city of SeaTac, Washington raised its minimum wage to $15.00 per hour. Furthermore, Los Angeles legislators have a bill on the table to raise wages for hotel workers to $15.37 per hour, which would be the highest in the country. San Francisco has the highest minimum wage in California, currently at $10.55 per hour.

Everyone deserves to be adequately paid for their work. If you believe your employer is violating wage and hour laws, call the Pershing Square Law Firm today for help.

Federal Contractors to See Potential Wage Increase

Minimum wage has been a hot topic over the last year, and continues to be so into 2014. The Fair Minimum Wage Act now sits in front of both the House of Representatives and the Senate. The Act aims to raise the federal minimum wage from $7.25 per hour to $10.10 per hour in three stages over the next several years. The Act would further raise the minimum wage for tipped employees and ensure that, in future years, the minimum wage would adjust annually for inflation, as it does in many states.

While the majority of American minimum wage employees will have to wait for the bill to pass, another group of employees in the United States may see pay increases sooner. In his State of the Union address, President Obama announced his plan to sign an executive order, which will raise the minimum wage for federal contract employees to $10.10 per hour. Because federal contracts can be so complex, the new wage requirement will not affect anyone who is currently under contract, but will affect all of those who sign new future contracts or renewed contracts.

The President stated the order could be expected in a few weeks, and the White House claimed it believes that “[b]oosting wages will lower turnover and increase morale, and will lead to higher productivity overall.” Many lower wage-earning federal contract employees work on military bases as dishwashers, janitors, food servers, and launderers. Obama specifically voiced his belief that the people who help take care of United States troops should not have to live below the poverty level.

Opposition for the Wage Hike

Of course, people quickly spoke up against the President’s plan, citing concerns or simply downplaying the bill. First, some industry groups took the order as a slight against federal contractors, stating the President singled out contractors for the increase, which may insinuate that contractors do not already pay a fair wage.

Industry groups cited the Service Contract Act, which already requires employees under certain types of contracts to be paid much higher than $10.10 per hour.

Other politicians pointed out that the scope of the executive order would be much smaller than it sounds, stating that only approximately 10 percent of the 2.2 million federal contract employees currently make less than $10.10 per hour. Those are the only employees who would be covered under the order.

However, the Obama administration pointed out that the increase will still apply to 200,000 to 300,000 Americans, and will increase their standard of living. That is better than nothing, some politicians maintain. Others see this order as a push to pass the Fair Minimum Wage Act through Congress. Obama also commented, in his State of the Union address, that he would continue to encourage that bill, and for Congress to stand up for all workers in the United States by increasing the federal minimum wage.

Though the federal minimum wage is currently still $7.25 per hour, the minimum wage in California is $8.00 per hour for 2013. If you have any questions regarding minimum wage or other wage and hour issues, call the Pershing Square Law Firm today for help.

Milestone GINA Case Warns Employers about Application Questions

Congress enacted the Genetic Information Nondiscrimination Act (GINA) in 2008. Title II of GINA specifically prohibits employers from discriminating against or harassing job applicants or current employees based on their genetic information. To prevent employers from unlawfully using genetic information in employment decisions, companies may not request or require applicants or employees to provide such information.

Under the law, genetic information includes the following:

• Information regarding a person’s genetic tests;
• Genetic information showing an increased risk for a disorder, disease, or other medical condition;
• Information showing an individual requested or received any type of genetic services;
• Genetic information of a pregnant woman or fetus;
• Genetic tests of family members or family medical history.

GINA prevents employers from requesting family medical history and tests because such information may show that the individual may have a predisposition for certain diseases or disorders.

Landmark Case for EEOC

Issues under GINA have been litigated by the Equal Employment Opportunity Commission (EEOC) three times, with only one case alleging an employer engaged in systemic discrimination. The former case, EEOC v. Founders Pavilion Inc., recently settled, and the EEOC calls the settlement a major milestone in employment law.

As part of its hiring process, Founders Pavilion Inc. conducted pre-employment medical exams, during which it unlawfully requested family medical history in violation of GINA. The EEOC case further alleged violations of the Americans with Disabilities Act (ADA) and Title VII, claiming that based on the medical exams, the company refused to hire two women for perceived disabilities, refused to hire three women because of pregnancy, and fired a current employee after refusing to accommodate her disability.

Ten months after the complaint, the EEOC and Founders Pavilion came to a settlement agreement totaling $370,000. The five employees who suffered unlawful discrimination under the ADA and Title VII will split $259,600, while 138 individuals who were unlawfully asked to provide family medical history or other genetic information will share $110,400. The company will furthermore have to post notices of the lawsuit in the workplace, adjust its anti-discrimination policy and notify and train employees on the changes, and periodically report to the EEOC for five years.

Reminder for All Employers

Though GINA claims have been few and far between, the Founders Pavilion case reminds employers that the EEOC will take allegations of GINA violations very seriously. Furthermore, the case is another example of how GINA violations often go hand-in-hand with violations of the ADA, Title VII, or other employment laws. The consequences of such violations may be serious for employers.

Asking questions regarding family medical history on job applications or during job-related medical exams is against the law. There are only six narrow exceptions to this rule, which may be found here. Otherwise, companies should make sure their application and medical exam policies are in compliance with the law.

If you believe that you have suffered unlawful discrimination based on your genetic information or any other protected reason, you should contact the Pershing Square Law Firm as soon as possible to discuss a possible case.

Harmless Banter May Escalate to Harassment

When adults spend an enormous amount of time together, they are bound to have some adult-themed conversation at some point. Much of the time, conversations with sexual content or undertones can be harmless, consensual, and enjoyable. However, when sexually themed comments and conversations become common in a workplace environment, the risk arises that the conversation may escalate and potentially offend some employees. For this reason, managers and supervisors should always try to rein in any type of sexual banter at work.

Consider the following example: a male employee with no ill intentions makes a comedic sexually-themed comment to a female colleague, and the female laughs. Because she laughed, he may be encouraged that she appreciates and is comfortable with that type of humor, and may continue to make similar jokes or comments in the future. The sexual nature of the comments may increase, and though she may become slightly uncomfortable, she does not object or ask him to stop making such comments. Believing his co-worker is completely at ease with sexual conversations, the male employee stops making jokes and begins directing sexual comments at her by inquiring about her sex life or commenting on her body. He reaches out and touches her to illustrate remarks about her body, and begins regularly leering at her. Now highly offended, the female employee files a formal complaint of sexual harassment.

These are the actual facts of a case brought by the Equal Employment Opportunity Commission (EEOC) against the office of the Governor of Alaska for sexual harassment of one Special Staff Assistant against another. Had the original sexually-themed jokes never occurred or been discouraged, perhaps the office could have avoided the case altogether.

Companies should try to avoid harassment lawsuits

Fashion house Gucci recently faced a similar—and unwarranted—sexual harassment claim. After a male employee was legitimately fired due to his demeanor at work, he brought a claim alleging that workplace banter regarding a supervisor’s sexual orientation had created a hostile and offensive work environment for him. Though the court decided that such banter did not, in fact, create a sexually hostile work environment, Gucci still had to dedicate time, money, and energy to defending the claim in court. The company could have possibly avoided the entire ordeal had they worked to control sexually-themed banter to begin with.

Employees may also do their part to avoid escalation to sexual harassment. One employment law attorney advised employees to always pretend they were speaking with their first grade teacher or mother, and to edit the content of the conversation accordingly. If conversations do not have any sexual connotation at all, you will never risk sexually offending someone. Furthermore, if any conversation makes you even slightly uncomfortable, speak up and inform your co-worker immediately that you would like that conversation or behavior to cease, and would not appreciate similar conversations in the future.

Finally, if you do believe you have been sexually harassed at work, it is important to contact an experienced employment law attorney at Pershing Square Law Firm as soon as possible for help.

Can My California Employer Check My Credit?

In previous years, it was common for employers throughout the United States to check a job applicant’s credit to help make employment decisions. If applicants had poor credit, the potential employer would often see that as a sign of irresponsibility and decide not to hire that person. However, in recent years, with the economic downturn, more Americans than ever have credit problems. Unemployment, mortgage foreclosures, and other financial struggles have made it difficult for people to pay all of their bills and have caused a large number of credit scores to plummet. Those lower credit scores have made it difficult for some Americans to secure employment, which only furthers their financial difficulties.

Recent reports, however, have indicated that a low credit score has little to no reflection on whether an applicant has the ability to adequately perform job duties. For that reason, in December of 2013, Senator Elizabeth Warren (D-Mass.) introduced proposed federal legislation, the Equal Employment for All Act, which would amend the Fair Credit Reporting Act (FRCA) to prohibit employers across the United States from using credit information to make employment decisions, all in order to protect applicants and employees from unjust discrimination.

California Credit Check Laws

While the federal legislation is still pending, California job applicants and employees are already protected from discrimination based on credit checks. California is one of ten states that have enacted such legislative protections for employees as of January 1st, 2014. These states include California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont, and Washington. Additionally, 35 other states have pending legislation related to employer credit checks.

Generally, most California public and private employers may not use credit information as the basis for any adverse employment action, such as hiring, demotion, rejection for promotion, or termination. An employer may not otherwise discriminate against or harass an employer based on credit information.

Exceptions to the Law

There are certain exceptions in which an employer may use credit information as the basis of an employment decision. Such exceptions are necessary in fields of employment that involve the handling of money or certain financial responsibilities. Some exceptions include applicants for:

·         A managerial position who qualifies for the executive exemption from wage and hour laws;

·         A position that allows the employee to transfer company money, enter into financial contracts for the company, or be a signatory on the company’s credit cards or bank accounts;

·         A position that gives the employee access to large amounts of credit or bank applications or other personal information of customers;

·         A position that gives the employee access to trade secrets or other confidential company information;

·         A position in which the employee handles large amounts of client money.

It makes sense that credit checks would be allowed for such positions that require a large amount of trust or financial responsibility. However, for any other type of position, California employers should never use credit information to make decisions or to discriminate against an applicant or employee.

If you have any concerns about employer credit checks, or if you believe that a company has violated employment laws, contact the office of Pershing Square Law Firm today for assistance in protecting your rights.

California Supreme Court Asked to Review “Suitable Seating” Law

California labor laws include a “suitable seating” provision, which has recently come under debate in the state courts.  Two different labor laws include suitable seating provisions, one law applies to the mercantile industry and the other applies to the professional, technical, clerical, mechanical, and similar occupations.  In both labor laws, the suitable seating provisions are identical and read as follows:

(A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.

(B) When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties.

Recent Suitable Seating Cases

Two proposed class action suits regarding suitable seating violations were dismissed and then appealed in 2013.  The first lawsuit was brought by a former cashier at CVS Pharmacy, who spent 90 percent of her shifts behind the cash register and claimed the company violated the law when it refused to allow her to sit down during this time.  The second lawsuit was filed by four former tellers at JPMorgan Chase Bank, and claimed the corporation unlawfully refused to let tellers sit down.

The trial court refused to allow the class actions suits to proceed, stating that a company may use business judgment in deciding whether employees should sit down based on the “entire range of an employee’s duties.”  Because the companies stated the employees did not spend 100% of their time behind the register, the lower court found that standing may be required to allow them to move about the store.  However, the employees disagree, stating that while they are behind the register, they should be allowed to sit down.

On appeal, the Court of Appeals for the Ninth Circuit had three main questions:

1. Does “nature of the work” refer to the full range of an employee’s duties or to individual tasks?
2. Should courts consider the employer's business judgment as to whether the employee should stand, the physical layout of the workplace, or the physical characteristics of the employee?
3. If an employer has not provided any seat, does a plaintiff need to prove what would constitute 'suitable seats' to show the employer has violated Section 14(A)?

Because this decision could potentially affect a large number of companies throughout California and could possibly result in tens of millions of dollars in penalties, the Court of Appeals requested on January 2, 2014 that the California Supreme Court review the questions and decide the answers.  The individual cases will be put on hold until the Supreme Court makes a decision, and we will be keeping you posted on those decisions.

If you have any concerns about your employer violating state or federal labor laws, you should always contact the experienced employment attorneys at Pershing Square Law Firm for assistance today.

Hot Employment Issues Going into 2014

Many employment cases involve groups of employees coming together to hold their employer accountable for widespread wrongdoing.  Lawsuits that involve large groups of plaintiffs like this are called class actions.  Class action employment cases used to often involve numerous employees who claimed they suffered the same type of discrimination.  However, the Supreme Court recently made it more difficult to qualify as a class in its decision in Wal-Mart v. Dukes.  In that case, 1.6 million female employees of the retail giant claimed they had suffered sex discrimination in the company’s promotion and pay raise practices.  The Supreme Court decided that the women did not have common enough experiences to constitute a class.  As a result of this decision, filing class action discrimination cases will now require prohibitive amount of discovery and other work for the plaintiffs.

Since the decision in 2011, employment law experts expect a drastic decline in the number of class action discrimination lawsuits.  However, this does not mean that employment cases will decline overall, as other hot employment issues are popping up in cases on a more regular basis as we go in to 2014.

Wage and Hour Cases

Wage and hour lawsuits have been on the rise, with the number of cases increasing 10 percent from 2012 to 2013.  Experts expect that number to keep rising, especially in light of the Wal-Mart v. Dukes decision.  Some common bases for wage and hour cases include:

·         Misclassification of employees vs. independent contractors

·         Non-payment of interns

·         Failing to pay full overtime wages

·         Failing to pay for time spent preparing for shifts or cleaning up after shifts

·         Not paying workers on time

·         Not paying workers their final paychecks if a company goes out of business

California is one of the states with the most worker-friendly wage and hour laws, along with New York, New Jersey, Pennsylvania, Massachusetts, and Florida.  Therefore, California is especially expected to see an increase in this type of case in 2014.

Social Media Cases

The use of social media in the workplace has also become a hot-button employment issue.  New laws prohibiting employers from demanding access to employees’ personal social media profiles will be the focus of new cases targeting non-compliant companies.  Furthermore, many cases will likely involve wrongful termination in violation of the employee’s First Amendment rights to free speech, after an employer fires someone for posting certain material on social media sites.

Whistleblowing

The 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) provides several protections, incentives, and financial rewards for whistleblowers who report violations regarding insider trading, corporate disclosure, accounting fraud, dealer-broker violations, and more.  Expect to see several whistleblowing claims arising in the New Year.  These cases will mostly involve claims of unlawful retaliation against protected whistleblowers.

In short, employment cases will not decrease simply because of the difficulties facing potential class action discrimination suits.  Employees still have plenty of reasons to file claims against their employers to receive the compensations they deserve.  If you are facing any employment issue, do not hesitate to contact the Pershing Square Law Firm to discuss a potential case.