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Suit Alleges Silicon Valley Execs Conspired To Keep Wages Low

By Peter Levine posted in Employment Law on October 30th, 2013

Class action lawsuit in an alleged “overarching conspiracy”

U.S. District Judge Lucy Koh in San Jose has granted class action status to a lawsuit alleging an “overarching conspiracy” amongst major Silicon Valley companies to suppress employee compensation obtained from moving from one company to another.

By winning the class action certification, the more than 60,000 plaintiffs made up of technical employees including: software and hardware engineers, component designers, application developers, among others, now have more leverage to seek larger financial settlements than if they were to sue individually.

In 2011, five software engineers sued Adobe Systems Inc., Intel Corp., Apple Inc., and Google Inc., among others over their hiring practices, alleging that the Silicon Valley companies conspired with other local executives to limit the workers’ pay by barring them from moving from one company to another, thus suppressing employee compensation to artificially low levels.

In conspiring to eliminate competition for labor and depriving workers of job mobility as well as hundreds of millions of dollars in compensation, the defendants were accused of violating the Sherman Act and Clayton Act antitrust laws.

In their original complaint, the plaintiffs sought certification of an “All Employee” class that would include every salaried employee throughout the United States who worked for the defendant companies between 2005 and 2009. That number was estimated to be more than 100,000.

The plaintiffs limited their class action group, now down to 60,000 after Judge Koh said they had yet to show enough in common amongst these proposed class members to allow them to sue together.

Much of the case built on email exchanges

The case has been closely watched in Silicon Valley as much of it has been built on email exchanges between top executives, including the late Apple Chief Executive Steve Jobs as well as former Google Chief Executive Eric Schmidt.

In granting class-action status to the suit Koh cited what she termed “considerable, compelling common proof” that the Silicon Valley companies engaged in antitrust behavior by agreeing not to try to lure away each others’ employees.

Peter K. Levine
A Professional Law Corporation
http://www.employmentforall.org/

Do Unpaid Internships Benefit the Intern?

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

40 people in a room doing entry-level jobs for free

According to the federal Fair Labor Standards Act, internships at for-profit companies can be unpaid if the internship is “for the benefit of the intern” and “similar to training which would be given in an educational environment.”

But some recent lawsuits are shining a light on how unpaid internships are more like free labor.
NYU student, Christina Isnardi interned at a local production company the summer after her freshman year. “When I got to the place, it was extremely illegitimate and exploitative. My employer, he basically used me for free labor,” she said. “I had a friend who had to wash dishes for a film company.” Now a junior at NYU, Isnardi has co-founded the organization Fair Pay for Interns and started an online petition at her school to remove unpaid internship opportunities from its CareerNet.

Vice president of Intern Bridge, Robert Shindell, estimates that a million undergraduates take internships each year. And about 20% of those internships are unpaid with no academic credit.

“The bad internships are 40 people in a room doing entry-level jobs for free,” says Mikey Franklin, co-founder of the Fair Pay Campaign, a group attempting to lobby for legislation that would mandate pay for an intern’s labor. “The good internships are only for people who can afford to work for free.”

While unpaid internships are more common in “creative” fields such as film, fashion and politics, a petition on Moveon.org asks the question: “Where can an adult work 50 hours for no pay in 2013?” And answers it with: “The White House Intern program.”

That is real work, Mr. President

The petition has about 8,500 signatures. “That is real work, Mr. President,” the petition reads. “It’s not equivalent to a semester in college.”

Other recent lawsuits include two interns on the set of Black Swan who sued Fox Searchlight Pictures, alleging they did basic tasks undertaken by regular entry-level employees, as well as an ex-Harper’s Bazaar intern who sued Hearst Magazines, an unpaid intern who sued Warner Music Group and Atlantic Records, and a former intern at Donna Karan International.

These companies argue their competitive unpaid internships benefit the students. But for many parents and students these internships prove too expensive.
“There are strict legal guidelines. If you’re doing the work of a for-profit company, it is eminently clear that you should get paid. It is abundantly clear,” Franklin says.

Peter K. Levine
A Professional Law Corporation
http://www.employmentforall.org/

Racial Discrimination Charged by African-American Hooter’s Waitress

By Peter Levine posted in Discrimination on October 27th, 2013

Hair Color Deemed Improper for An African-American Woman

Farryn Johnson, an African-American 25-year-old Hooters waitress, alleges she was let go because of her blonde highlights, even thought white waitresses are allowed to color their hair at the chain restaurant.

In the racial discrimination complaint filed with the Maryland Commission on Civil Rights, Johnson is claiming she was let go from her job on grounds of having an “improper image” after she refused to remove the blonde highlights from her dark brown hair.

“They gave me write-ups, and they told me I need to take the color out of my hair. And they said I couldn’t have blond in my hair because I’m black. They specifically said, ‘Black women don’t have blond in their hair, so you need to take it out,'” Johnson said.

In her complaint she wrote, “Because Hooters permits non-African-American women with their hair dyed colors vastly different from their natural hair colors to work as Hooters Girls, I believe Hooters only deemed my hair color ‘improper’ because I am an African-American woman. I was discharged because Hooters imposes different and more restrictive beauty standards on African-American women than it does on women of other races.”

…employers can’t have two separate unequal sets of rules

Her attorney, Jessica Weber, had this to say; “The law is clear that employers can’t have two separate unequal sets of rules-one for African-Americans employees and one for everybody else, and yet that’s exactly what Hooters did here in firing Miss Johnson, an African-American employee solely because she’s African-American. They targeted her because of her hair solely because of her race.”

Hooters’ chief human resources officer, Rebecca Sinclair said in a statement, “When you’re representing an iconic brand, there are standards to follow.

Hooters Girls are required to be camera-ready at all times to promote the glamorous, wholesome look for which Hooters is known.” She went on to say, “Hooters adamantly denies that it has different policies and standards for hair based on race. As a global brand, Hooters embraces our culturally diverse employee base and our standards are applied impartially.”

Peter K. Levine

A Professional Law Corporation

http://www.employmentforall.org/

Unpaid Overtime Lawsuit Filed Against McDonald’s

By Peter Levine posted in Employment Law, Unpaid Overtime on October 24th, 2013

McDonald’s shaved hours off of employees’ time cards

In the latest of unpaid overtime lawsuits popping up nationwide, one of the most recent is recently filed class action lawsuit alleging that McDonald’s is tampering with shift records in an effort to cut costs. Allegedly more than 12 McDonald’s restaurants in New York — all owned by the same person — have shaved hours off of employees’ time cards.

Plaintiff Jeffrey Schuyler is at the forefront of these unpaid overtime lawsuits that target Ralph Crawford, a successful McDonald’s franchise owner. The alarms went off when Crawford began requesting alarmingly high time punch changes. Suddenly, hundreds of employees’ overtime hours were changed to eight-hour shifts. But Crawford might not be the only one to blame.

While Crawford was the person actually physically changing the time cards, the class action lawsuit claims that the McDonald’s corporation encouraged it.
Allegedly, a manager is alerted with a warning message on the time card management screen when an employee works overtime, scaring the managers into changing the records since being paid time and a half isn’t conducive to making money.

“Time Shaving” a regular practice at McDonald’s

Schuyler was told by his supervisor that “time shaving” was a regular practice at McDonald’s. When he checked other employees’ time records he was shocked to find managers were regularly erasing one full hour from employees’ shifts. According to the lawsuit, when he realized what was happening, he complained and as a result was demoted and then fired.

Schuyler was given $1,000 to make up for his lost hours. When the time shaving continued, he complained again — this time to Crawford directly.

Following a meeting between Crawford and Schuyler, Schuyler consulted a wage and hour attorney and filed a class action lawsuit against McDonald’s along with the support of hundreds of employees. The case alleges that McDonald’s tampers with time sheets and forces employees to work through breaks.

Peter K. Levine
A Professional Law Corporation
http://www.peterlawfirm.com

Home Care Aides Now Covered Under Wage and Overtime Law

By Peter Levine posted in Employment Law, Unpaid Overtime on October 22nd, 2013

Wage protections for nearly two million home care workers

The Obama administration recently announced that home care aides would be covered under the Fair Labor Standards Act, thus extending minimum wage and overtime protections to the nation’s nearly two million home care workers who care for the elderly and disabled.

According to industry experts most of these aides are already paid at least the minimum wage, but many do not receive a time-and-a-half overtime premium when they work more than 40 hours a week. Currently, about 20 states exclude home care workers from their wage and hour laws.

Some industry officials are claiming the changes would cause increases in Medicaid and Medicare spending, and raise costs for families that use these services, thus resulting in fewer jobs for home care workers.

Andrea L. Devoti, chairman of the National Association for Home Care and Hospice, said the higher costs resulting from the new rule would lead many people to hire home care aides part time rather than full time. “Caregivers will in the end receive less pay,” she said.

15 states now provide overtime and minimum wage protection

Ms. Fortman of the administration’s wage and hour division said 15 states now provided overtime and minimum wage protection to home care aides. “We have not seen any evidence that it has resulted in job loss or any serious negative impact for the workers or for the people using the services,” she said.

Labor Secretary Thomas E. Perez said in a statement, “Today we are taking an important step toward guaranteeing that these professionals receive the wage protections they deserve while protecting the right of individuals to live at home.”

The administration announced the change 21 months after first proposing the rule and after having received 26,000 public comments. Many labor advocates criticized the administration for the time it took to issue its final rule. Labor Department officials responded that reviewing the comments and holding related public meetings took time.

Even though regulations usually take effect 60 days after being issued, the administration said the new regulation would not take effect until Jan. 1, 2015, in order to give families that use these attendants, as well as state Medicaid programs, preparation time.

Peter K. Levine

A Professional Law Corporation

www.employmentforall.org

The Increasing Number of Wage and Hour Lawsuits

By Peter Levine posted in Employment Law, Unpaid Overtime on October 13th, 2013

“Wage and Hour” Lawsuits

According to a recent analysis of data by the Federal Judicial Center, “wage and hour” lawsuits in which workers are taking their employers to court over unfair pay have skyrocketed 432 percent in the past twenty years.

The research (conducted by the law firm Sayfarth and Shaw on behalf of the Federal Judicial Center) shows that it jumped 10 percent in just the last year.

An Increase in Lawsuits, But why?

The law firm concludes this increase might be a result of the economy picking up steam as well as “social media,” and the public’s inclination to post their grievances to Facebook, Twitter, etc… An increased number of lawyers are now looking to bring awareness and sensitivity to these issues.

But advocates of workers are more apt to claim a different reason: the inability of the Department of Labor (DOL) to properly ensure employers are in compliance with the law. As a result of the DOL’s lack of resources, workers have had to turn to courts to ensure they are paid fairly.

According to Cathy Ruckelshaus, the legal co-director for the National Employment Law Project, “The employers were emboldened because there wasn’t enforcement, so the violations increased. There was a lot of low-hanging fruit in terms of violations.”

According to ThinkProgress, while all wage and hour lawsuits involve a dispute over how much money a company owes to an employee, the suits typically fall into three sub-categories:

1. Hourly employees claiming they weren’t paid for all of the hours worked,

2. Salaried workers claiming they’re owed overtime,

3. Employees working for the tipped minimum wage claiming they didn’t make enough in tips to bring their pay up to the minimum wage rate.

But the economic downturn might also be to blame as employers were able to squeeze more out of workers concerned with keeping their jobs in an environment of high unemployment.

According to an April 2012 report from the Wall Street Journal S&P 500 companies made an average of $420,000 per employee in 2011, a full ninth more than in 2007.

“When the recession first hit, employers felt even more emboldened to violate the law because there was high unemployment and we rely on workers to complain,” Ruckelshaus said.

Bank of America and Taco Bell were hit with lawsuits

Companies such as Bank of America and Taco Bell were hit with lawsuits alleging they owed employees money during the recession and recovery. Patricia Sloan, a shift manager at Taco Bell is one such employee that has filed a lawsuit against her employer for overtime pay violations.

In her case, Sloan is claiming that managers were sometimes denied pay for their employee attendance, and that they were also forced to adjust time cards in order for the company to avoid paying overtime. If Taco Bell is found to be in violation they could be ordered to pay overtime back wages as well as penalties for their noncompliance to the Fair Labor Standards Act.

According to Ruckelshaus, the boost in lawsuits could be good news for employees because it sends a message to employers that they have to comply with laws, or face the consequences.

“The idea is that employers make decisions that don’t violate the law because they figure ‘we better not do this because we’re going to get caught,'” she said.

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Peter K. Levine
A Professional Law Corporation

Bank Of America Ordered to Pay $2.18m in Racial Discrimination Case

By Peter Levine posted in Discrimination, Employment Law, Law on October 4th, 2013

The bank’s “unfair and inconsistent selection criteria” led to the rejection of qualified black candidates

The U.S. Department of Labor is reporting that Bank of America Corp, the second-largest bank in the U.S., was ordered to pay $2.18 million to 1,147 black job applicants for alleged racial discrimination in their hiring process that barred qualified candidates from being hired.

The decision and order made by an administrative law judge at the Labor Department, Linda Chapman, awards back pay and interest to former candidates seeking teller, clerical, and entry-level administrative positions in the bank’s hometown of Charlotte, North Carolina.

Chapman concluded in a statement that Bank of America’s “unfair and inconsistent selection criteria” led to the rejection of qualified black candidates.

About $1.22 million would go to 113 people who were rejected during the hiring process between 2002 and 2005. Another $964,000 would go to 1,034 people who were rejected in 1993.

The Labor Department initially filed its first complaint against Bank of America in 1997. Allegedly, the bank had challenged its authority to pursue the case.

The most recent order followed two settlements of litigation regarding alleged bias that Bank of America disclosed within the last month.

“We are currently reviewing this recommended decision and order,” said Bank of America spokesman, Christopher Feeney. “At Bank of America, diversity and inclusion are part of our culture and core company values. We actively promote an environment where all employees have an opportunity to succeed.”

The Labor Department said Bank of America’s, a federally insured financial institution, qualified as a federal contractor, putting it under the OFFCP’s purview.

This is not the first time Bank of America has been involved in this type of litigation

In August, the bank reached a $160 million settlement with hundreds of black Merrill Lynch & Co brokers who alleged racial bias in the areas of pay, promotions, and allocation of large accounts.

And in September, it reached a $39 million settlement with female brokers claiming they were paid less than their male counterparts and that they had been deprived of their share of major accounts.

“Judge Chapman’s decision upholds the legal principle of making victims of discrimination whole, and these workers deserve to get the full measure of what is owed to them,” said Patricia Shiu, director of the Labor Department’s Office of Federal Contract Compliance Programs (OFFCP).

If you feel that you have been the victim of discrimination in hiring, promotion, layoffs, or any other aspect of employment related actions, you need the services of an Employment Lawyer in Los Angeles. Please contact the Law Offices of Peter K. Levine at (323) 617-4406 or visit the Discrimination page on our website. Call today and we will connect you with Peter K. Levine, an experienced, aggressive, affordable Discrimination Attorney in Los Angeles. After you have spoken with our Los Angeles Discrimination attorney, we can schedule you a free face to face appointment to discuss your circumstances. If you have questions or concerns with any aspect of Discrimination and Employment, we can help! Call us now at (323) 617-4406. We look forward to hearing from you and assisting you with your Discrimination Law case.

Worker fired for giving a 66-cent cookie to a child for free

By Peter Levine posted in Employment Law on October 3rd, 2013

Fired employee had led fellow workers in a walk out

Carlos Hernandez, a 21-year-old community college student was fired from his job at a Subway sandwich shop franchise because, according to the owner of the franchise, Hasan Zeer, he gave a 66-cent cookie to a child for free.

Hernandez suspects he was fired for another reason. The Honduras native, who resides legally in the United States on a green card, led his fellow fast-food workers in a walk-out this past summer.

Recently, fast food workers nationwide have been staging short strikes in protest of low wages paid by the industry and often poor working conditions.

The movement peaked with a 58-city strike at the end of August, targeting a number of fast food chains including Subway, McDonald’s, and Starbucks, among others.

Zeer alleges that Hernandez’s labor movement activities had nothing to do with his dismissal, and that it was only the free cookie. “He worked for me two months after the first strike, and the second strike he worked a week and a half,” says Hasan Zeer. “It’s nothing to do with that. All my employees who went on strike are still working with me.”

Hernandez admits to giving away the cookie, but also says that he had done it before, paying for the cookies with money from a tip jar. At the time,

Hernandez said, Zeer told him, “‘Wow, you are very good worker, you give very good customer service.'”

He did not reimburse the store for the cost of the cookie…

Hernandez admits that on the occasion he was fired, he did not reimburse the store for the cost of the cookie simply because the restaurant was extremely busy at the time.

When he was fired Hernandez told the store manager on duty he suspected the dismissal was related to his labor activities. The manager responded with,

“‘Yes, you shouldn’t be against us.'”

Legally, most workers can be fired on an employer’s whim, but they can’t be fired for trying to join a union.

Working Washington, an advocacy group for fast food workers, has filed a complaint against Zeer and Subway. They allege that Hernandez was fired in retaliation for speaking to the press and for organizing his coworkers during the fast food strike. Attorneys expect a resolution by the end of October.

Pizza chain Manny & Olga’s accused of wage theft

By Peter Levine posted in Employment Law, Unpaid Overtime on October 2nd, 2013

Claims of illegally low pay

Jose Luis Ormeno, a former kitchen worker at pizza chain Manny & Olga’s has filed a lawsuit that accuses his employer of wage theft. Ormeno is claiming long hours and illegally low pay while working at the late-night takeout chain.

The suit, filed in federal court, alleges Ormeno was cheated out of more than $12,000 in pay. According to Ormeno, for the first six months of his employment, he worked an average of 81 hours per week for a mere $5.32 per hour, nearly $3 below the D.C. minimum wage of $8.25.

Ormeno claims that regardless of how many hours he worked he was paid a flat rate of $420 and later $360 per week. Under the Fair Labor Standards Act (FLSA), most hourly workers are entitled by law to minimum wage as well as time-and-a-half for overtime worked over 40 hours per week. Ormeno says in the lawsuit that later on in his employment at the chain he earned the legal D.C. wage of $8.25 per hour, but that rate was paid only for “straight time.”

Unpaid overtime exceeds $5,000

According to the lawsuit his overtime claims for a six-month period alone amount to more than $5,000.

The lawsuit states, “Plaintiff complained to Defendants about his excessive work hours and the manner in which he was paid… “Plaintiff has made
Defendants aware that they are in violation of the FLSA; however, Defendants refused to respond.”

In addition to the $12,286.79 he’s seeking in back pay, Ormeno is also asking for $24,573.58 in damages.

Fast Food Chain Accused of Failure to Accommodate Religious Beliefs

By Peter Levine posted in Discrimination, Employment Law on October 1st, 2013

The EEOC has accused two corporations that operate a chain of Kentucky Fried Chicken restaurants: Scottish Food Systems, Inc. and Laurinburg KFC Take Home, Inc., of violating federal law by failing to accommodate an employee’s religious beliefs and firing her because of her religion.

According to the EEOC’s employment discrimination lawsuit, the employee, Sheila Silver converted to Pentecostalism in 2010. A belief of the Pentecostal church is women should wear skirts rather than pants. In accordance with this religious belief Silver has not worn pants since the fall of 2010.

Silver has worked at various Kentucky Fried Chicken restaurant locations since 1992. Scottish Food Systems and Laurinburg KFC Take Home purchased the KFC restaurant where Silver worked in April 2013. At that time, they informed Silver, citing their dress code policy that she must wear pants to work.

Silver told Scottish Food Systems and Laurinburg KFC Take Home she could not wear pants because of her religious beliefs and the companies fired her for refusing to wear pants to work.

Civil Rights Act violations

This alleged conduct violates Title VII of the Civil Rights Act of 1964. This act requires employers to reasonably accommodate an employee’s religious beliefs as long as doing so does not pose an undue hardship. The EEOC filed suit in U.S. District Court after first attempting to reach a voluntary settlement through its conciliation process. The EEOC seeks back pay, compensatory damages and punitive damages, as well as injunctive relief.

“Employers must respect employees’ sincerely held religious beliefs and carefully consider requests made by employees based on those beliefs,” said Lynette A. Barnes, regional attorney for the EEOC. “This case demonstrates the EEOC’s continued commitment to fighting religious discrimination in the workplace.”

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