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Warehouse workers suspended for taking “heat” breaks

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

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

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

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

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

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

Video cameras in employee break rooms

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

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

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

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

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

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

Domestic Worker Rights: Nannies, Babysitters, and Daycare Providers

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

About one in five children are in the care of domestic workers

About one in five children are in the care of domestic workers such as nannies, babysitters or in-home daycare providers. Because the government has failed to provide and subsidize quality childcare, families often struggle to find the money for in-home care, leaving nannies vulnerable because they often miss out on fair wages, decent hours, and benefits. In a recent survey, the largest group of nannies, about 11 percent, reported earning $600 per week, which amounts to $31,200 a year. While hourly wages fluctuate by location, in many major cities that isn’t enough to live on.

Fair Labor Standards Act leaves many domestic workers unprotected

A 1974 amendment to the Fair Labor Standards Act extended coverage to domestic workers, but an overly broad reading of its exemptions has left many domestic workers unprotected. As a result, most have missed out on minimum wages, overtime pay, benefits, and protection from discrimination. The majority of families who employee nannies, although they mean well, don’t often pay into Social Security, provide any paid sick leave or vacation time, or offer overtime pay for extra hours worked. Without regulations, nannies are at their employers’ whim, without anywhere to turn in the event of harassment or discrimination. “Because there’s no industry standard, there’s no guideline for a conversation.” says Jennileen Joseph, a nanny and founder of a nonprofit for domestic workers called Massachusetts Association of Professional Nannies.

First law requiring time-and-a-half for overtime

But that may begin to change. New York just passed the first law requiring time-and-a-half for overtime, at least three vacation days a year and an eight-hour workday and forty-hour workweek for domestic workers. It also grants temporary disability benefits and provides redress for harassment and discrimination. Four other states-California, Illinois, Massachusetts and Colorado-are considering similar bills.

New York’s is a momentous victory for domestic workers, but it also has some parents concerned. While the New York bill doesn’t establish a per-hour minimum wage above the state’s minimum, families will be paying far more to keep nannies working past the forty-hour workweek if they need extra care. There will be no government subsidies for these extra costs, even though they are crucial to valuing the work nannies do. And some feel the government should be at least partially responsible for the high costs of paying domestic workers, especially as those costs increase to make the work up to par with living standards.

The Endless Work Day and Salaried Employees: Unpaid Overtime

By Peter Levine posted in Employment Law, Unpaid Overtime on August 28th, 2013

Work until the job is finished

A common practice of many employers in today’s weak job market is to expect “salaried” employees to work until the job is finished, often 12 or more hours in a day. The employer benefits from hours of labor that are free and are essentially unpaid overtime. While most workers are not in a position to confront employers about the situation, high level management might have the right method to address the problem.

Achieving balance: Working a 9-to-5 schedule

“I walk out of this office every day at 5:30 so I’m home for dinner with my kids at 6, and interestingly, I’ve been doing that since I had kids. I did that when I was at Google, I did that here, and I would say it’s not until the last year, two years that I’m brave enough to talk about it publicly. Now I certainly wouldn’t lie, but I wasn’t running around giving speeches on it.”

Facebook COO Sheryl Sandberg prompted a number of questions when, in a video posted on Makers.com, she told an interviewer that she works a 9-to-5 schedule, namely “whatever happened to ‘work-life balance’?”

Many hope to take the shame out of achieving that balance.
Mashable Reader Jason Hunter commented “…5:30 as an on average time for going home should be acceptable for everyone — single or not single … family or no family — assuming you don’t come into the office everyday at 11 a.m.”

The ability to work flexibly is a perk

Too often across all industries, the ability to work flexibly is a perk – one that has to be earned over the course of one’s career, or something that’s on the books, but only approved in special cases.

A report from the Council of Economic Advisers, commissioned for a 2010 White House Forum on Workplace Flexibility, shows flexibility is a best practice with many benefits including: increased productivity, reduced turnover and absenteeism, and higher morale and company commitment.

Sandberg’s admittance reminds us of just how little we’re asking for when we ask for flexibility – getting home to have dinner with our families, or taking an ailing parent to the doctor.

We know that workers of all ages and genders and across all industries want more control over how and where they work so they can have a life, with or without family. Until we lift the stigma to flexible work arrangements, we can anticipate that workers will be wary of actually taking advantage of them. It’s up to both employers and employees to re-establish the “balance” in “work-life balance.”

The use of credit checks and convictions in employment applications

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

Court OKs credit history and past convictions as employment criteria

The U.S. District Court for Maryland made it even harder for workers with poor credit histories and past criminal convictions to secure employment when it dismissed a federal lawsuit brought by the federal Equal Employment Opportunity Commission (EEOC) against Freeman, a privately held event management company.

The lawsuit charges Freeman with violating Title VII of the Civil Rights Act. According to the EEOC, the employer’s hiring practice of performing detailed inquiries into applicant’s credit histories and criminal backgrounds amounted to discrimination because it disproportionately impacted African-American and male job applicants.

Any applicant meeting any of 12 different categories of reported credit-unworthiness were excluded from certain positions.
The Freeman court joined a number of other employers praising what some consider a “common sense” practice of performing credit and criminal background checks. Supporters of this practice ignore studies demonstrating that credit problems do not predict employee performance, as well as studies documenting atrocious error rates on credit checks. A report released by the Federal Trade Commission earlier this year found that a quarter of consumers identified errors (that might impact credit scores) on their credit report.

In 2011, California limited the use of credit checks in employment. The law also established broad exceptions to the “prohibition” on employment-related credit checks, essentially blessing the use of credit checks across jobs and industries where the necessity had previously never been demonstrated.

Employment Application: Have you ever pleaded guilty to, or been convicted of, a criminal offense?

 

Freeman’s standard employment application form also asked, “Have you ever pleaded guilty to, or been convicted of, a criminal offense?” Applicants were told certain convictions would not be considered in the hiring process. However, the company acknowledged a “bright-line rule” that disqualified any applicant who “failed to disclose a conviction, seriously misrepresented the circumstances of a criminal offense, or made any other materially dishonest statement on the application.”

These types of cases, often called “disparate impact” cases, stand or fall on the persuasiveness of the presented statistical evidence. In the EEOC v. Freeman case, the court let loose on the EEOC’s expert, criticizing his methodology and ultimately calling his findings “an egregious example of scientific dishonesty.”

These cases are being watched closely by consumer and civil rights advocates, who hope the EEOC’s oversight of these employment policies will reduce the use of background checks to screen out applicants. The decision nonetheless reinforces misconceptions and legal standards that are hostile to anyone applying to join the workforce.

Apple sued for unpaid wages and overtime compensation

By Peter Levine posted in Law, Unpaid Overtime on August 25th, 2013

Apple required off-the-clock security bag searches

Two former Apple Inc. retail employees have sued the tech giant for “millions of dollars” for unpaid wages and overtime compensation. They allege hourly employees had to wait in line and undergo off-the-clock security bag searches after they had clocked out.

Amanda Frlekin alleges when she clocked out for her uncompensated meal breaks and at the end of her shift, she waited for at least five to 10 minutes, without compensation, as other employees had their bags checked. In total this comes to about 50 minutes to 1.5 hours a week of unpaid overtime, totaling to about $1,500 in wages not paid over the course of a year.

The other plaintiff, Dean Pelle, is making similar claims about required bag inspections when he worked in Apple’s stores.

Like other retail employees, the company’s employee conduct manual specifies that all employees are subject to personal bag searches, and if refused employees, can be subject to termination.

Apple charged with California Labor Code violations

The plaintiffs allege by not compensating its retail workers for this waiting time, Apple has violated the Fair Labor Standards Act, as well as the California Labor Code for nonpayment of the minimum wage, overtime wages and wage statement penalties, in addition to the California Unfair Competition Law for “unlawful, unfair or fraudulent business act or practice,” and New York Labor Law for nonpayment of wages and unpaid overtime.

Yana Walton, communications director for the retail worker advocacy group, Retail Action Project, stated her organization has “secured back wages for hundreds of retail workers who have experienced wage theft” in New York City.

“Unfortunately, retail workers experience wage theft in many ways, and like employees at Forever 21 and Polo Ralph Lauren who filed similar suits, unpaid mandatory job functions are tantamount to wage theft,” she said.

A spokeswoman for Apple told ABC News that the company does not comment on pending litigation. The plaintiffs and their attorneys did not respond to ABC News’ requests for comment.

Frlekin and Pelle are hoping to expand their lawsuit into a class action that represents Apple retail employees over the past three years. Lawyers representing the plaintiffs are also hoping to represent retail employees in Apple’s California and New York stores for even longer periods, the Associated Press reported.

Employment Law: Privacy Violation in the Workplace

By Peter Levine posted in Employment Law on August 22nd, 2013

Personal Information on the Workplace Bulletin Board

Many of the basic rights we all take for granted are not protected when we go to work. Whenever a question arises about an employee’s right to privacy in the workplace it is critical to identify the employee rights that may be at stake. Because there are various workplace environments, each claim of privacy violation needs to be evaluated according to the actual and specific conditions of the workplace.

Such is the debate that is facing one such McDonald’s employee’s attorney.

A San Antonio McDonald’s employee, who is only being identified as “Anna,” was outraged to find her personal medical information had been posted to a workplace bulletin board in the back office of her store.

Anna told a local television station that she suffers from depression, anxiety, liver, and lung problems, and had received a doctor’s note authenticating her illnesses so that she could take a few hours off. Anna alleges that after handing the note over to her manager, the manager then proceeded to put the note up on the public employee bulletin board.

A Clear Violation of Her Privacy in the Workplace

“It just made me want to cry,” Anna said. “I didn’t want anyone to know … I really felt that they stepped into my personal space to basically let anybody know that I needed medical treatments.” Anna claims her manager’s actions were in clear violation of both her privacy and federal health laws.

Anna has consulted with an attorney and has filed a complaint with the Equal Employment Opportunity Commission. Justine Lisser, a spokeswoman for the EEOC, did not comment specifically on Anna’s case. She did, however, say it’s possible that Anna could be referring to the Americans with Disabilities Act. This Act protects employees or job applicants from unfavorable treatment due to disability. It also has a “very strong confidentiality provision,” Lisser said.

It’s also possible that Anna could be invoking the Genetic Information Nondiscrimination Act. This Act, among other things, prohibits employers from considering an individual’s genetic information when making decisions around hiring, firing, job placement or promotion.

At this point it is unclear if Anna’s employer did so.

Lisser noted that a large number of complaints received by the EEOC involve disabilities that are psychiatric in nature, including depression. In 2012, 402 charges with favorable outcomes or meritorious allegations involved depression, accounting for nearly 7 percent of all disability charges that year.

“Certainly, there is a stigma against some psychiatric illnesses that may not be present for other things,” Lisser said.
San Antonio McDonald’s Operator Celia Jairala declined discussing further details, but offered this statement: “McDonald’s has the utmost respect for our employees and their privacy.”

An employee’s rights can be violated in any number of ways. In this particular case, “Anna” took the best course of action. She consulted an attorney and filed a complaint with the appropriate government agency with employee and workplace rights.

Congressional Report Cites Thousands of Cases of Elder Abuse

By Peter Levine posted in Law on August 20th, 2013

The widespread problem of elder abuse has even come to the attention of Congress. Reported instances of abuse appear to be on the rise. The percentage of nursing homes cited for violations has increased every year since 1996, according to the House Government Reform Committee. Serious physical, sexual and verbal abuse reports are “numerous” among the nation’s nursing homes, says a congressional study released recently.

The study, prepared by the minority (Democratic and Independent) staff of the Special Investigations Division of the House Government Reform Committee, finds that 30 percent of nursing homes in the United States — 5,283 facilities — were cited for almost 9,000 instances of abuse over a recent two-year period, from January 1999 to January 2001.

Common problems included untreated bedsores, inadequate medical care, malnutrition, dehydration, preventable accidents, and inadequate sanitation and hygiene, the report said.

Many of the abuse violations caused harm to the residents, the report said.

In 1,601 cases, the abuse violations were serious enough “to cause actual harm to residents or to place the residents in immediate jeopardy of death or serious injury,” it said.

“What we have found is shocking,” says Rep. Henry Waxman, D-Calif., the committee’s minority leader, who instructed the staff to do the study.

Staff members accused of committing physical or sexual abuse

In some reported cases, a member of the nursing home’s staff was accused of committing physical or sexual abuse. In others, staff were cited for failing to protect people from abuse by other residents.

The report documents instances of residents being punched, slapped, choked or kicked by staff members or other residents, causing injuries such as fractured bones or lacerations.

Some of the violations uncovered are particularly disturbing. In one case, according to the report, an attendant walked into a resident’s room, said “I’m tired of your ass,” and hit her in the face, breaking her nose.

In another case, attendants bribed a brain-damaged patient with cigarettes to attack another resident, then watched the two fight. The report also described a case in which a male attendant molested an elderly female resident while bathing her.

The federal government is the biggest contributor of nursing home care

The homes cited by the study for instances of abuse accommodate some 550,000 residents. Nationwide, some 1.6 million people reside in 17,000 nursing homes and 11,000 of them are for-profit businesses.

The federal government is the biggest contributor of nursing home care, mostly through Medicaid, a joint federal-state health care program for the poor, and Medicare, the federal program for elderly and disabled people. Federal heath and safety standards are designed to protect nursing home residents from abuse.

Elder Abuse Lawyer Los Angeles – Peter K. Levine

Source: abcnews.go.com “Congressional Report Cites Thousands of Cases of Elder Abuse,” 30 July 2013

City to pay former clerk $150,000 to dismiss whistleblower claim

By Peter K. Levine posted in Employment Law on August 16th, 2013

Whistleblower claims can go to court whenever there is some sort of corruption suspected, and an employee is retaliated against in any way for reporting those believed to be illegal activities. This means that cities can be sued, as well as large corporations and even small individually owned businesses.

One city learned this first hand after a former city clerk filed a whistleblower lawsuit after reporting what she believed to be illegal activities that the mayor was partaking in.

According to the woman’s lawsuit, she was fired from her position in December of 2009 after she reported to the state’s department of law enforcement that the mayor was charging the city for personal expenses – like a cell phone bill and a trip – without reimbursing the city. In addition, the former clerk also discovered that the mayor was not being forced to pay certain utility bills, like his city cable or water.

After reporting these findings, she was fired, and the city’s mayor told the state’s department of law enforcement that the charges were honest mistakes.

An investigation into the charges also decided that he was not purposely attempting to charge the city for his own personal gains.

In the end, the city decided to settle with the former city clerk and will pay her $150,000 in exchange for her dropping the whistleblower lawsuit. According to sources, the settlement does not equate to the city of mayor admitting guilt in any way.

Cases like this former clerk’s happen all the time throughout the country, including in California. Luckily, employees do have rights, and if they suffer from any type of retaliation after reporting what they believe to be illegal activities, there are legal actions that can be taken against that place of employment.

Employment Lawyer Los Angeles – Peter K. Levine

Source: The Walton Sun, “City paying $150K to settle whistleblower lawsuit,” 7 March 2011

Three California police officers suing for discrimination

By Peter K. Levine posted in Discrimination on August 16th, 2013

California police officers appear to be facing wide-spread discrimination lately. Earlier this week, we talked about a California lieutenant in Concord who recently settled his retaliation lawsuit with the department. Now, we will talk about three Latino officers who say they have been passed up for multiple promotions on the basis of their race.

Three officers with the Westminster Police Department has filed a federal lawsuit claiming that they are suffering from race discrimination. In particular, they argue that they have been passed over for promotions, with the department opting to promote less experienced white officers over them.

One plaintiff gave a specific example of his application for a detective position a few years ago. The Latino officer is a U.S. Marine Corps major and has received many positive performance reviews while on the police force. Despite his credentials, the position was given to a white candidate with no military experience, no college degree and only one year on the job as an officer.

The Latino officer described that “it’s glaring to the point where I can’t figure out anything else except discrimination.” Together, the three men say that they have been denied at least 30 promotions. Most of the time, they say, officers who had less experience and fewer qualifications were given the positions over the Latino officers.

Of the 90 police officers in the Westminster Police Department, only 12 are Latino. Three of them are involved in this lawsuit, which they hope will cause the department to correct its discriminatory practices. They men are requesting monetary damages as well as promotions to the positions they have been passed over for.

Sexual Harassment Attorney Los Angeles – Peter K. Levine

Source: San Jose Mercury News, “Police officers file employer discrimination suit,” Amy Taxin, 2 March 2011

Despite Equal Pay Act, Women are Still Paid Less in California

By Peter K. Levine posted in Discrimination on August 16th, 2013

Nearly half a century ago, women made great strides in advocating for equality and the Equal Pay Act was enacted with the goal of abolishing sex discrimination when establishing wages. Almost 50 years later, a wage gap continues to exist in California.

According to data collected by the United States Bureau of Labor Statistics and the Department of Labor, women who worked full time, a minimum of 35 hours per week, in 2009 were still paid 20 percent less than their male counterparts were. The average salary for women was $657 while men earned on average $819 per week.

While some women made much more than the average, gaps existed in each level of employment. Women who worked in management, held positions as chief executives, compliance officers and other positions of authority made 72.7 percent of what the men made in the same classification group.

Not only are women in similar jobs are paid overall less, but entire job sectors that are considered to be stereotypically suitable for women receive less compensation. Those jobs include teachers as well as the food preparation industry.

According to the data, sex discrimination continues to exist. In one study, researchers found that sex discrimination was not only exhibited by employers, but by customers as well. The research study was based upon customer satisfaction responses after observing a male and female “worker” who said the exact same words and made the exact same motions as one another in a video. The study found that 19 percent of customers gave the male a higher “satisfaction” rating.

Source: Around Dublin “Gender Wage Gap Still Exists in California” 1/6/11

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