In Kirby v. Immoos, 113 Cal.Rptr.3d 370, the Court of Appeal held that an employee not prevailing on a meal-rest claim (or, even one who settled the claims) could be subject to paying the employer's attorneys' fees under Cal. Lab. §218.5, which provides for two-way fee shifting. The consequences of this decision, had it been allowed to stand, would have been disastrous – no employee could risk paying an employer's attorneys' fees to pursue claims arising from meal/rest period violations. The plaintiff's claims might amount to $5,000 and the employer's fees might amount to 100X that much or more – amounts that would bankrupt the average, hourly, non-exempt worker. Since the California Supreme Court and California Legislature have repeatedly emphasized the importance of promoting wage/hour litigation under the Labor Code (see, e.g., Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094), the Court of Appeal's wage/hour claim-killing decision seemed out of line.
Fortunately, this morning, the Supreme Court, in Kirby v. Immoos (http://www.bryanschwartzlaw.com/Kirby_v_Immoos.pdf), rejected the Court of Appeal's incongruous decision, holding as follows:
As we noted in Murphy, "[m]eal and rest periods have long been viewed as part of the remedial worker protection framework," and low-wage workers are the "likeliest to suffer violations of section 226.7." (Murphy, supra, 40 Cal.4th at pp. 1105, 1113-1114.) In giving no indication that section 218.5 applies to meal or rest break claims when it enacted section 226.7, the Legislature could reasonably have concluded that meritorious section 226.7 claims may be deterred if workers, especially low-wage workers, had to weigh the value of an "additional hour of pay" remedy if their claims succeed against the risk of liability for a significant fee award if their claims fail. In light of the statutory text and the legislative history of section 218.5 and section 226.7, we conclude that section 218.5's two-way fee-shifting provision does not apply to section 226.7 claims alleging the failure to provide statutorily mandated meal and rest periods.
Kirby, Slip Op. at p. 17.
The Court did not accept the employees' invitation to treat meal/rest period claims as claims for a "minimum wage" under Cal. Lab. §1194, which expressly precludes two-way fee-shifting for minimum wage and overtime claims. The Court reasoned:
As a textual matter, if plaintiffs were correct that a "legal minimum wage" refers broadly to any statutory or administrative compensation requirement or to any compensation requirement based on minimum labor standards, then section 1194's reference to "legal overtime compensation" would be mere surplusage. For, under plaintiffs' reading, overtime compensation would already be encompassed by the term "legal minimum wage."
Slip Op. at p. 8.
However, the Court left for another day the battle over whether one-way fee-shifting for employees is available for meal/rest claims in suits where they are alleged alongside overtime and minimum wage claims (Slip.Op. at p. 18) –i.e. in most cases where these claims are alleged. This battle – the sequel to Kirby v. Immoos– will most likely be where the rubber meets the road. In the meantime, employees and their advocates should continue to seek attorneys' fees for meal-rest claims alleged alongside overtime and minimum wage claims under §1194. We will also continue to seek fees under Cal. Code Civil Procedure §1021.5, which allows fee-shifting in certain cases brought to vindicate the public interest – like meal/rest litigation so often does.
If you have questions about your meal or rest period claim, contact Bryan Schwartz Law.
Nothing in this article is intended to form an attorney-client relationship with the reader or to provide legal advice in a particular case, but is intended as commentary on a matter of general interest.
Monday, April 30, 2012
Wednesday, April 25, 2012
Employment Discrimination in Academia
Bryan Schwartz Law's work with co-counsel Equal Rights Advocates was recently discussed in the April 2012 Equal Rights Advocates Education Equity Campaign Special Report:
Education Equity Must Include Equity for Educators: ERA Takes on Discrimination in Academia
ERA, along with co-counsel Bryan Schwartz Law, has recently begun investigating discriminatory tenure, promotion, review, and pay practices at Pitzer College, a member of the Claremont Colleges. A female faculty member of color at Pitzer has alleged that the Pitzer president and other members of the school administration discriminated against women seeking tenure. The client is an accomplished professor who was denied tenure despite two enthusiastically positive recommendations from the College’s tenure committee and positive evaluations from her department, students, and external scholarly reviewers. Female faculty members also report gender-based pay inequities. Our client reports: “I am surprised that a college that so strongly articulates a commitment to social responsibility would not be more concerned with investigating and addressing unequal treatment and would not work harder to maintain a fair, consistent, clear, and transparent process with respect to faculty promotions. I hope that changes will be made so that all junior faculty at the institution, particularly women and women of color, are not subjected to what I have gone through.” ERA is taking on gender discrimination in schools and colleges and the workplace in collaboration with sister organizations across the country, including the American Association of University Women.
Thursday, April 12, 2012
The California Supreme Court’s Long-Awaited Brinker Decision – What Does the Split-the-Baby Approach Tell Us about Meal and Rest Periods in California
Two hours ago, the Supreme Court finally provided the guidance every employer and non-exempt employee in California has been awaiting: what do employers have to do to comply with California’s stringent meal and rest period requirements? See Brinker Restaurant Corp. v. Superior Court (Hohnbaum), S166350 http://www.bryanschwartzlaw.com/Brinker_4-14-12.pdf
Here is what the answer seems to be:
1) Employers do not have to police employees during their meal periods to make sure they are not doing any work. However, employers also cannot control employees’ time or find subtle or not-so-subtle ways of getting employees to work during meal periods. The touchstone for meal periods is the latter: are employees truly relieved of all duty, and relieved of the employer’s control, for an uninterrupted, 30-minute period? (See Brinker, Slip Op. at p. 30, citing DLSE Opinion Letter No. 1991.06.03 (June 3, 1991) “The worker must be free to attend to any personal business he or she may choose during the unpaid meal period.”). As the Supreme Court explained, “Employers must afford employees uninterrupted half-hour periods in which they are relieved of any duty or employer control and are free to come and go as they please.”Brinker, Slip Op. at p. 31. If not, the employer owes a one-hour premium, under Cal. Lab. §226.7.
Bryan Schwartz Law’s amicus brief to the Supreme Court on behalf of the California Employment Lawyers Association and the Consumer Attorneys of California in this matter had urged the Court to adopt essentially a strict liability standard: that employers must ensure that no work be performed, or else pay premiums. The Supreme Court declined this invitation. The Court reasoned, “[T]he obligation to ensure employees do no work may in some instances be inconsistent with the fundamental employer obligations associated with a meal break: to relieve the employee of all duty and relinquish any employer control over the employee and how he or she spends the time. See Morillion v. Royal Packing Co. (2000) [22 Cal.4th 575, 584-585] (explaining that voluntary work may occur while not subject to an employer’s control, and its cessation may require the reassertion of employer control).
Again, control is the critical factor. The Supreme Court’s decision certainly would prevent an employee from, for example, going out to lunch, calling into his/her work voicemail without the employer’s knowledge or direction, and then saying “Gotcha!” and claiming an hour meal premium because he/she worked during lunch.
On the other hand, Brinker embracing the “provide” standard – because of all the discussion on cessation of work and relinquishing of control – does not appear to be a real victory for employers, who may have hoped the decision would put an end to meal period litigation. It won’t. If you are an employee, and your employer puts restrictions on what you can do with your meal period, or pushes you to get work done in a way that makes you work through lunch, then you still may assert meal period claims. You must have a “reasonable opportunity” to take your meal period, that is not impeded or discouraged or controlled by the employer. See Brinker, Slip Op. at p. 36.
PS – if the employer relinquishes control, and an employee chooses to work – with the employer’s knowledge – then the employer must still pay straight time wages for the time worked, but need not pay an additional premium. See Brinker, Slip Op. at p. 35 n. 19. Among other practices, auto-deduct meal periods - where an employer subtracts 30 minutes a day from workers’ timesheets, but knows that employees tend to work through lunch, will seemingly remain unlawful.
2) Employers must provide a meal period by the end of five hours’ work, and another at the end of ten hours’ work. The employee had argued that the second meal period needed to be five hours after the first meal period but the Supreme Court rejected this timing requirement.
3) Employers must provide a ten-minute rest period if employees work over 3.5 hours, and must provide another if employees work over six hours. As far as the timing of the rest period, it should be toward the middle of each four-hour block of work, to the extent practicable – but there will not be much opportunity for asserting claims based on rest break timing, if the employer is giving employees two, ten-minute breaks in an eight-hour shift.
4) For class actions, the Supreme Court rejected the extra layer of factual analysis that the Court of Appeal was requiring, basically saying that if a court needs to look at the facts to know if a particular element is met (e.g., deciding if common issues predominate by seeing if the same policy applied to everyone) then looking at the facts of the case is appropriate – otherwise, not.
In sum, neither plaintiffs’ or defense lawyers can claim a total victory in Brinker, but certainly employees and their advocates live to fight another day, to enforce workers’ important rights to take their breaks and meal periods.
If you have meal and rest period claims or questions, contact Bryan Schwartz Law.
DISCLAIMER: Nothing in the foregoing commentary is intended to provide legal advice in a specific case or to form an attorney-client relationship with any reader. You must have a representation agreement signed with Bryan Schwartz Law to be a client of the firm or this author.
Here is what the answer seems to be:
1) Employers do not have to police employees during their meal periods to make sure they are not doing any work. However, employers also cannot control employees’ time or find subtle or not-so-subtle ways of getting employees to work during meal periods. The touchstone for meal periods is the latter: are employees truly relieved of all duty, and relieved of the employer’s control, for an uninterrupted, 30-minute period? (See Brinker, Slip Op. at p. 30, citing DLSE Opinion Letter No. 1991.06.03 (June 3, 1991) “The worker must be free to attend to any personal business he or she may choose during the unpaid meal period.”). As the Supreme Court explained, “Employers must afford employees uninterrupted half-hour periods in which they are relieved of any duty or employer control and are free to come and go as they please.”Brinker, Slip Op. at p. 31. If not, the employer owes a one-hour premium, under Cal. Lab. §226.7.
Bryan Schwartz Law’s amicus brief to the Supreme Court on behalf of the California Employment Lawyers Association and the Consumer Attorneys of California in this matter had urged the Court to adopt essentially a strict liability standard: that employers must ensure that no work be performed, or else pay premiums. The Supreme Court declined this invitation. The Court reasoned, “[T]he obligation to ensure employees do no work may in some instances be inconsistent with the fundamental employer obligations associated with a meal break: to relieve the employee of all duty and relinquish any employer control over the employee and how he or she spends the time. See Morillion v. Royal Packing Co. (2000) [22 Cal.4th 575, 584-585] (explaining that voluntary work may occur while not subject to an employer’s control, and its cessation may require the reassertion of employer control).
Again, control is the critical factor. The Supreme Court’s decision certainly would prevent an employee from, for example, going out to lunch, calling into his/her work voicemail without the employer’s knowledge or direction, and then saying “Gotcha!” and claiming an hour meal premium because he/she worked during lunch.
On the other hand, Brinker embracing the “provide” standard – because of all the discussion on cessation of work and relinquishing of control – does not appear to be a real victory for employers, who may have hoped the decision would put an end to meal period litigation. It won’t. If you are an employee, and your employer puts restrictions on what you can do with your meal period, or pushes you to get work done in a way that makes you work through lunch, then you still may assert meal period claims. You must have a “reasonable opportunity” to take your meal period, that is not impeded or discouraged or controlled by the employer. See Brinker, Slip Op. at p. 36.
PS – if the employer relinquishes control, and an employee chooses to work – with the employer’s knowledge – then the employer must still pay straight time wages for the time worked, but need not pay an additional premium. See Brinker, Slip Op. at p. 35 n. 19. Among other practices, auto-deduct meal periods - where an employer subtracts 30 minutes a day from workers’ timesheets, but knows that employees tend to work through lunch, will seemingly remain unlawful.
2) Employers must provide a meal period by the end of five hours’ work, and another at the end of ten hours’ work. The employee had argued that the second meal period needed to be five hours after the first meal period but the Supreme Court rejected this timing requirement.
3) Employers must provide a ten-minute rest period if employees work over 3.5 hours, and must provide another if employees work over six hours. As far as the timing of the rest period, it should be toward the middle of each four-hour block of work, to the extent practicable – but there will not be much opportunity for asserting claims based on rest break timing, if the employer is giving employees two, ten-minute breaks in an eight-hour shift.
4) For class actions, the Supreme Court rejected the extra layer of factual analysis that the Court of Appeal was requiring, basically saying that if a court needs to look at the facts to know if a particular element is met (e.g., deciding if common issues predominate by seeing if the same policy applied to everyone) then looking at the facts of the case is appropriate – otherwise, not.
In sum, neither plaintiffs’ or defense lawyers can claim a total victory in Brinker, but certainly employees and their advocates live to fight another day, to enforce workers’ important rights to take their breaks and meal periods.
If you have meal and rest period claims or questions, contact Bryan Schwartz Law.
DISCLAIMER: Nothing in the foregoing commentary is intended to provide legal advice in a specific case or to form an attorney-client relationship with any reader. You must have a representation agreement signed with Bryan Schwartz Law to be a client of the firm or this author.
Friday, March 30, 2012
Recovering Attorneys’ Fees as a California Whistleblower
In representing a public employee whistleblower who suffered retaliation and was terminated from her job, Bryan Schwartz Law won an important victory this week, with the Superior Court ruling that she will be eligible to recover attorneys’ fees if she wins at trial, under California Code of Civil Procedure §1021.5. The defendant employer (a county) had argued that the whistleblower under California Labor Code §1102.5 was not eligible for fee-shifting because the primary effect of the action (if successful) would be to vindicate plaintiff’s personal economic interests – that is, to help her get her job back, with back pay and emotional distress damages. However, the Court embraced the plaintiff’s argument that the county was applying the wrong equation.
Under §1021.5, there are three elements to a fee award: “(1) the enforcement of an important right affecting the public interest; (2) the conferring of a significant benefit on the general public or a large class of individuals; and (3) the necessity and financial burden of private enforcement renders the award appropriate.” (internal quotations omitted) Jaramillo v. County of Orange (2011) 200 Cal.App.4th 811, 829. Plaintiff argued – and the Court agreed – that protecting whistleblowers from retaliation is a strong public interest. Doing so confers a significant benefit on the general public – namely, empowering people to step forward to expose fraud, corruption, and other wrongdoing. See, e.g., Green v. Ralee Engineering Co. (1998) 19 Cal. 4th 66, 77.
As an example, in Jaramillo, 200 Cal.App.4th at 829, the plaintiff recovered attorneys’ fees under §1021.5, stemming in part from whistleblower a retaliation claim under §1102.5 of the California Labor Code. The Court of Appeal found a public benefit where the outcome would “inure to the benefit of the citizens and taxpayers of [the] County by lessening the probabilities of abuse and corruption in the sheriff's office [where the plaintiff worked]….[The case established that] any person occupying the office of the county sheriff will not be able to assume, as this record shows [the wrongdoer] did, that he or she may ignore warnings of wrongdoing (or even mere mismanagement) from high level sheriffs and then be able to cover up the fact of those warnings with an in-the-corner ‘at will’ termination.”
The principle is clear: litigation resulting in the vindication of whistleblowers who step forward to protect the public fisc does confer a significant benefit on the public, and may warrant fee-shifting. This is because fee-shifting for a prevailing whistleblower encourages others to blow the whistle and expose public corruption, without fear of reprisal, and puts public employers on notice that they cannot act with impunity against whistleblower employees.
Since a public employee whistleblower exposing corruption likely meets the public benefit prong, the question remains whether the necessity and financial burden of private enforcement renders a fee award appropriate. Under the recent California Supreme Court case of Conservatorship of Whitley (2010) 50 Cal. 4th 1206, a fee award is appropriate when there is a public benefit to the litigation, if the expected recovery (i.e., accounting for litigation risk) is not significantly greater than cost of litigation. In other words, in public interest litigation, if a plaintiff is 50% likely to recover $100,000, then the fees/costs incurred will have to be significantly less than $50,000 for the losing employer to avoid §1021.5 fee-shifting. See Whitley, 50 Cal.4th at 1215-1216 (citing with approval Los Angeles Police Protective League v. City of Los Angeles (1986) 188 Cal.App.3d 1).
The Whitley precedent is very important for whistleblowers – especially public employees – and their advocates, since public employees cannot recover punitive damages, and since their wage loss in middle-income positions typically does not reach the million-plus dollars that litigation through trial will cost: “[A] bounty will be appropriate except where the expected value of the litigant's own monetary award exceeds by a substantial margin the actual litigation costs.” Whitley, 50 Cal.4th at 1216.
Though the whistleblower protection law, Cal. Lab. §1102.5, does not have its own fee-shifting provision, like the Fair Employment and Housing Act does, under Cal. Code of Civ. Pro. §1021.5 a whistleblower can hope to recover attorneys’ fees if he/she is successful in litigation.
DISCLAIMER: This article is for general interest and nothing in this article is intended to form an attorney-client relationship or provide fact-specific guidance in anyone's case. To seek to obtain legal advice about your whistleblower case, contact Bryan Schwartz Law and request an initial consultation: www.bryanschwartzlaw.com
Under §1021.5, there are three elements to a fee award: “(1) the enforcement of an important right affecting the public interest; (2) the conferring of a significant benefit on the general public or a large class of individuals; and (3) the necessity and financial burden of private enforcement renders the award appropriate.” (internal quotations omitted) Jaramillo v. County of Orange (2011) 200 Cal.App.4th 811, 829. Plaintiff argued – and the Court agreed – that protecting whistleblowers from retaliation is a strong public interest. Doing so confers a significant benefit on the general public – namely, empowering people to step forward to expose fraud, corruption, and other wrongdoing. See, e.g., Green v. Ralee Engineering Co. (1998) 19 Cal. 4th 66, 77.
As an example, in Jaramillo, 200 Cal.App.4th at 829, the plaintiff recovered attorneys’ fees under §1021.5, stemming in part from whistleblower a retaliation claim under §1102.5 of the California Labor Code. The Court of Appeal found a public benefit where the outcome would “inure to the benefit of the citizens and taxpayers of [the] County by lessening the probabilities of abuse and corruption in the sheriff's office [where the plaintiff worked]….[The case established that] any person occupying the office of the county sheriff will not be able to assume, as this record shows [the wrongdoer] did, that he or she may ignore warnings of wrongdoing (or even mere mismanagement) from high level sheriffs and then be able to cover up the fact of those warnings with an in-the-corner ‘at will’ termination.”
The principle is clear: litigation resulting in the vindication of whistleblowers who step forward to protect the public fisc does confer a significant benefit on the public, and may warrant fee-shifting. This is because fee-shifting for a prevailing whistleblower encourages others to blow the whistle and expose public corruption, without fear of reprisal, and puts public employers on notice that they cannot act with impunity against whistleblower employees.
Since a public employee whistleblower exposing corruption likely meets the public benefit prong, the question remains whether the necessity and financial burden of private enforcement renders a fee award appropriate. Under the recent California Supreme Court case of Conservatorship of Whitley (2010) 50 Cal. 4th 1206, a fee award is appropriate when there is a public benefit to the litigation, if the expected recovery (i.e., accounting for litigation risk) is not significantly greater than cost of litigation. In other words, in public interest litigation, if a plaintiff is 50% likely to recover $100,000, then the fees/costs incurred will have to be significantly less than $50,000 for the losing employer to avoid §1021.5 fee-shifting. See Whitley, 50 Cal.4th at 1215-1216 (citing with approval Los Angeles Police Protective League v. City of Los Angeles (1986) 188 Cal.App.3d 1).
The Whitley precedent is very important for whistleblowers – especially public employees – and their advocates, since public employees cannot recover punitive damages, and since their wage loss in middle-income positions typically does not reach the million-plus dollars that litigation through trial will cost: “[A] bounty will be appropriate except where the expected value of the litigant's own monetary award exceeds by a substantial margin the actual litigation costs.” Whitley, 50 Cal.4th at 1216.
Though the whistleblower protection law, Cal. Lab. §1102.5, does not have its own fee-shifting provision, like the Fair Employment and Housing Act does, under Cal. Code of Civ. Pro. §1021.5 a whistleblower can hope to recover attorneys’ fees if he/she is successful in litigation.
DISCLAIMER: This article is for general interest and nothing in this article is intended to form an attorney-client relationship or provide fact-specific guidance in anyone's case. To seek to obtain legal advice about your whistleblower case, contact Bryan Schwartz Law and request an initial consultation: www.bryanschwartzlaw.com
Wednesday, February 22, 2012
Trip Leaders for Fancy Teen Tours Should Be Paid the Minimum Wage
Bryan Schwartz Law and co-counsel, Rudy Exelrod Zieff & Lowe, issued the following press release this week:
Trip Leaders File Class Action for Unpaid Overtime
Violations Alleged on Behalf of Hundreds of Employees
San Francisco, California, February 21, 2012: A class action lawsuit filed on Friday accuses Adventures Rolling Cross-Country, Inc. (“ARCC”), and its owner, Scott Von Eschen, of Mill Valley, California, of failing to pay basic minimum wages to workers who work chaperoning kids on expensive trips abroad and domestically. The case was filed in Marin County Superior Court. The plaintiffs are Peter Wright and Michelle Trame, and the case is Peter Wright and Michelle Trame v. Adventures Rolling Cross-Country, Inc., et al, case number 1200767.
The lawsuit alleges that Trip Leaders undergo approximately 10 days “training” in Mill Valley, California, typically spending 10 hours per day working. Thereafter they depart for trips ranging from two weeks to 90 days. Plaintiffs, for example, each led a trip lasting 24 days. During the trips, in which they are essentially babysitting a large group of teens, they are on-call 24 hours a day – responsible for the safety of the kids. Trip Leaders actively work anywhere from 12-16 hours a day with little to no time at rest.
Plaintiffs estimate that they, and the class members, worked over 350 hours for ARCC, earning for all of this time only approximately $1,000 (in the case of Peter Wright) – less than $3.00/hour – and approximately $1,080 (in the case of Michelle Trame) – still well under $3.00/hour. These wages are far below state and federal minimum wages and overtime requirements, according to the lawsuit.
The proposed class includes hundreds of current or former Trip Leaders across the country.
“The fact that the for-profit company is providing a nice travel experience for kids is no excuse for exploiting the Trip Leaders.” said David A. Lowe, a partner at Rudy, Exelrod, Zieff & Lowe, LLP, who is representing the Trip Leaders with Bryan Schwartz, of Bryan Schwartz Law. “The Trip Leaders work long hours trying to keep the kids safe and on schedule, and they deserve to be compensated for their work,” according to Schwartz. “This may be a vacation for the kids – but it is anything but relaxing for the Trip Leaders,” he added.
Wright, 26, commented, “Parents ought to know that their children, entrusted to ARCC, which is paid a lot of money to watch them, are being looked-after by Trip Leaders making about a third of the minimum wage.”
The plaintiffs are seeking unpaid minimum and overtime wages and other compensation on behalf of current and former Trip Leaders throughout the country.
Plaintiffs' Attorneys:
Rudy Exelrod Zieff & Lowe is a leading law firm in the field of wage and hour class actions and won the largest overtime verdict in United States history in Bell v. Farmers Insurance Exchange. The firm specializes in representing employees in individual and class action litigation.
Bryan Schwartz Law is an Oakland, California-based law firm dedicated to helping employees protect their rights in the workplace. Bryan Schwartz Law has successfully litigated individual and class action complaints nationwide, helping to recover millions of dollars for thousands of employees, forcing corporations and Government agencies to change their practices and punish wrongdoers.
ARCC employees or former employees who would like to learn more about the case should visit www.rezlaw.com and click on “Class Actions” or contact David Lowe at (415) 394-6078, dal@rezlaw.com, or Bryan Schwartz at (510) 444-9300, bryan@bryanschwartzlaw.com.
Trip Leaders File Class Action for Unpaid Overtime
Violations Alleged on Behalf of Hundreds of Employees
San Francisco, California, February 21, 2012: A class action lawsuit filed on Friday accuses Adventures Rolling Cross-Country, Inc. (“ARCC”), and its owner, Scott Von Eschen, of Mill Valley, California, of failing to pay basic minimum wages to workers who work chaperoning kids on expensive trips abroad and domestically. The case was filed in Marin County Superior Court. The plaintiffs are Peter Wright and Michelle Trame, and the case is Peter Wright and Michelle Trame v. Adventures Rolling Cross-Country, Inc., et al, case number 1200767.
The lawsuit alleges that Trip Leaders undergo approximately 10 days “training” in Mill Valley, California, typically spending 10 hours per day working. Thereafter they depart for trips ranging from two weeks to 90 days. Plaintiffs, for example, each led a trip lasting 24 days. During the trips, in which they are essentially babysitting a large group of teens, they are on-call 24 hours a day – responsible for the safety of the kids. Trip Leaders actively work anywhere from 12-16 hours a day with little to no time at rest.
Plaintiffs estimate that they, and the class members, worked over 350 hours for ARCC, earning for all of this time only approximately $1,000 (in the case of Peter Wright) – less than $3.00/hour – and approximately $1,080 (in the case of Michelle Trame) – still well under $3.00/hour. These wages are far below state and federal minimum wages and overtime requirements, according to the lawsuit.
The proposed class includes hundreds of current or former Trip Leaders across the country.
“The fact that the for-profit company is providing a nice travel experience for kids is no excuse for exploiting the Trip Leaders.” said David A. Lowe, a partner at Rudy, Exelrod, Zieff & Lowe, LLP, who is representing the Trip Leaders with Bryan Schwartz, of Bryan Schwartz Law. “The Trip Leaders work long hours trying to keep the kids safe and on schedule, and they deserve to be compensated for their work,” according to Schwartz. “This may be a vacation for the kids – but it is anything but relaxing for the Trip Leaders,” he added.
Wright, 26, commented, “Parents ought to know that their children, entrusted to ARCC, which is paid a lot of money to watch them, are being looked-after by Trip Leaders making about a third of the minimum wage.”
The plaintiffs are seeking unpaid minimum and overtime wages and other compensation on behalf of current and former Trip Leaders throughout the country.
Plaintiffs' Attorneys:
Rudy Exelrod Zieff & Lowe is a leading law firm in the field of wage and hour class actions and won the largest overtime verdict in United States history in Bell v. Farmers Insurance Exchange. The firm specializes in representing employees in individual and class action litigation.
Bryan Schwartz Law is an Oakland, California-based law firm dedicated to helping employees protect their rights in the workplace. Bryan Schwartz Law has successfully litigated individual and class action complaints nationwide, helping to recover millions of dollars for thousands of employees, forcing corporations and Government agencies to change their practices and punish wrongdoers.
ARCC employees or former employees who would like to learn more about the case should visit www.rezlaw.com and click on “Class Actions” or contact David Lowe at (415) 394-6078, dal@rezlaw.com, or Bryan Schwartz at (510) 444-9300, bryan@bryanschwartzlaw.com.
Monday, January 9, 2012
Landmark Decision by National Labor Relations Board Gives Hope of Level Playing Field for All Workers
Last year, the U.S. Supreme Court ruled in AT&T Mobility v. Concepcion that the California Supreme Court’s Discover Bank rule – that arbitration agreements negating the ability to proceed collectively/as a class were presumably unconscionable, because of unequal bargaining power – was contrary to the Federal Arbitration Act (FAA), because it was discriminatory against arbitration. See my blog post of May 2011, discussing this decision:
http://bryanschwartzlaw.blogspot.com/2011_05_01_archive.html
Last week, the National Labor Relations Board (NLRB) took a bite out of Concepcion’s impact, when it held that arbitration agreements precluding joint, class, or collective actions violate Section 7 of the National Labor Relations Act, which protects the right to engage in concerted action for mutual aid or protection. See the NRRB’s landmark decision in D.R. Horton, Inc., and Michael Cuda, Case 12-CA-25764, here:
http://www.bryanschwartzlaw.com/horton.pdf
What does this mean for regular folks in the workplace? Simply put, it means that the playing field still has a chance at being level – at least until the Supreme Court gets a hold of the D.R. Horton decision.
If you have a wage/hour claim or some other kind of claim, and you are trying to pursue the claim with other employees/former employees – because there is power in numbers, when you are fighting an employer which has an unequal share of the bargaining power – then it is important to learn whether the employer required you to sign an arbitration agreement barring class or collective action when you were hired. Many employers do so require.
If the employer has a policy making its workers sign contracts prohibiting class/collective/joint action against it, or had such a rule within the last 180 days, then you can file an unfair labor practice charge (ULP) with the NLRB, employing the reasoning of D.R. Horton:
https://www.nlrb.gov/sites/default/files/documents/48/nlrbform501.pdf
Under D.R. Horton, you will still have a chance to make a greater impact than you could make as one employee against a big employer.
If you have questions about how to handle your claims that may be subject to an arbitration agreement and/or a ban on class/collective action, contact Bryan Schwartz Law today: bryan@bryanschwartzlaw.com
DISCLAIMER: Nothing in this posting, for general information only, is intended to create an attorney-client relationship. Bryan Schwartz Law does not represent you unless and until you have a signed representation agreement with the firm. You alone are responsible for any deadlines that concern your claims, until you hire an attorney to represent you.
http://bryanschwartzlaw.blogspot.com/2011_05_01_archive.html
Last week, the National Labor Relations Board (NLRB) took a bite out of Concepcion’s impact, when it held that arbitration agreements precluding joint, class, or collective actions violate Section 7 of the National Labor Relations Act, which protects the right to engage in concerted action for mutual aid or protection. See the NRRB’s landmark decision in D.R. Horton, Inc., and Michael Cuda, Case 12-CA-25764, here:
http://www.bryanschwartzlaw.com/horton.pdf
What does this mean for regular folks in the workplace? Simply put, it means that the playing field still has a chance at being level – at least until the Supreme Court gets a hold of the D.R. Horton decision.
If you have a wage/hour claim or some other kind of claim, and you are trying to pursue the claim with other employees/former employees – because there is power in numbers, when you are fighting an employer which has an unequal share of the bargaining power – then it is important to learn whether the employer required you to sign an arbitration agreement barring class or collective action when you were hired. Many employers do so require.
If the employer has a policy making its workers sign contracts prohibiting class/collective/joint action against it, or had such a rule within the last 180 days, then you can file an unfair labor practice charge (ULP) with the NLRB, employing the reasoning of D.R. Horton:
https://www.nlrb.gov/sites/default/files/documents/48/nlrbform501.pdf
Under D.R. Horton, you will still have a chance to make a greater impact than you could make as one employee against a big employer.
If you have questions about how to handle your claims that may be subject to an arbitration agreement and/or a ban on class/collective action, contact Bryan Schwartz Law today: bryan@bryanschwartzlaw.com
DISCLAIMER: Nothing in this posting, for general information only, is intended to create an attorney-client relationship. Bryan Schwartz Law does not represent you unless and until you have a signed representation agreement with the firm. You alone are responsible for any deadlines that concern your claims, until you hire an attorney to represent you.
Friday, December 30, 2011
Workplace Safety Violations Result in Serious Consequences for Employers
The tragic case of Margarita Mojica, a 26-year-old printing plant worker killed at work in 2008, should stand as a sobering reminder to employers that workplace safety should be given the highest priority. Though protecting employees' lives should be incentive enough, employers like Ms. Mojica's may be criminally liable under the California Labor Code as well as criminal statutes.
In Ms. Mojica's case, the owner and manager of the San Francisco-based Digital Pre-Press International now face criminal charges for her death that was caused by a power press machine that lacked proper mechanical and handling safeguards. Ms. Mojica's case is but one of the approximately 6,000 workplace deaths that happen annually in the United States.
In a preliminary hearing, Judge Newton Lam found that a jury could find the employers committed criminal negligence in Ms. Mojica's untimely death. The defendants could each face up to four years and eight months of incarceration, plus fines of up to $250,000. The corporation faces up to $1.5 million in fines.
The California Labor Code contains numerous sections that impose criminal liability for employer violations. Although employers may not be frequently prosecuted for violations of the Labor Code, this case should remind employers that these criminal violations can be extremely serious.
If you believe you are working in an unsafe workplace due to faulty equipment, exposure to chemicals, or other inadequate safety measures, call Bryan Schwartz Law for a free consultation today: 510-444-9300.
In Ms. Mojica's case, the owner and manager of the San Francisco-based Digital Pre-Press International now face criminal charges for her death that was caused by a power press machine that lacked proper mechanical and handling safeguards. Ms. Mojica's case is but one of the approximately 6,000 workplace deaths that happen annually in the United States.
In a preliminary hearing, Judge Newton Lam found that a jury could find the employers committed criminal negligence in Ms. Mojica's untimely death. The defendants could each face up to four years and eight months of incarceration, plus fines of up to $250,000. The corporation faces up to $1.5 million in fines.
The California Labor Code contains numerous sections that impose criminal liability for employer violations. Although employers may not be frequently prosecuted for violations of the Labor Code, this case should remind employers that these criminal violations can be extremely serious.
If you believe you are working in an unsafe workplace due to faulty equipment, exposure to chemicals, or other inadequate safety measures, call Bryan Schwartz Law for a free consultation today: 510-444-9300.
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