caemploymentlaw

Monday, April 22, 2013

United States District Court Finds Meal and Rest Period Compensation is a Wage

United States District Court Finds Meal and Rest Period Compensation is a Wage

This Court decision, though non-binding on California State Courts, has answered many questions that lawyers, employees, and employers have regarding meal and rest breaks. Normally California employers are required to pay premium pay for missed meal and rest periods. Employers looking to update their policies or have them reviewed to ensure they are in compliance should contact Quintilone & Associates at req@quintlaw.com. For more information on seeking payment for missed meal and rest periods or off the clock work as well as reimbursement of business expenses and whether you have a potential claim please contact Quintilone & Associates at req@quintlaw.com

Thursday, August 02, 2012

PARTNERS CAN SUE THEIR PARTNERSHIP FOR RETALIATION UNDER FEHA

Generally, a partner does not have the right to sue his/her partnership for discrimination, harassment, or retaliation under Title VII or the California Fair Employment and Housing Act (“FEHA”). This is because a partner is not in an employment relationship with the partnership. However, the California Court of Appeals recently held in Fitzsimons v. California Emergency Physicians Medical Group, 205 Cal.App.4th 1423 that if a partner alleges that the partnership is retaliating against the partner because he/she complained about unlawful discrimination or harassment of the partnership’s employees; the partner has the right to sue under FEHA.

In Fitzsimons, Mary Fitzsimons, a partner of the California Emergency Physicians (“CEP”) and an emergency physician filed suit against CEP alleging that she had been terminated in retaliation for reports she made to her supervisors that certain officers and agents of CEP had sexually harassed female employees. Initially, the trial court found in favor of CEP based on the grounds that a partner does not have standing to assert a claim under FEHA.

Fitzsimons appealed and the Court of Appeals reversed the trial court’s judgment. In finding that Fitzsimons could bring an action under FEHA for retaliation, the court reasoned that FEHA makes it unlawful for CEP to retaliate against any “person” for opposing harassment and the term” person in this context included a partner. The court did caution, however, that the general rule still stands – a partner cannot sue the partnership for harassment or discrimination directed at the partner herself/himself.

The Fitzsimons decision means that in contrast to Federal law, under California law partnerships face potential liability for retaliation against partners who report discrimination or harassment against employees.

This Court decision has answered many questions that lawyers, employees, and employers have regarding a partner’s right to sue. California partnerships should review their anti-retaliation policies and provide training on such policies.

Employers looking to update their policies or have them reviewed to ensure they are in compliance should contact Quintilone & Associates at req@quintlaw.com

For more information and to determine whether you have a potential claim please contact Quintilone & Associates at 949.458.9675 or info@quintlaw.com  


Saturday, April 14, 2012

The California Supreme Court Announces Big Decision for Employees

The California Supreme Court just announced a big class action employment decision in Brinker Rest. Corp. v. Superior Court. The decision clarifies some laws as they pertain to employers and employees, and sets forth a simple three part test for meal period compliance. 

The Court specifically held that employer satisfies [its meal period compliance] obligation if it (1) relieves its employees of all duty, relinquishes control over their activities and (2) permits them a reasonable opportunity to take an uninterrupted 30-minute break, and (3) does not impede or discourage them from doing so.  What will suffice may vary from industry to industry, and we cannot in the context of this class certification proceeding delineate the full range of approaches that in each instance might be sufficient to satisfy the law.   Slip op. at 36 (emphasis added) (citing Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949; see Id at 31 ("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."); id. at 6, 27 (describing rejected employer argument that "an employer is obligated only to 'make available' meal periods").

The Court declined to accept the final additional bit of the Plaintiffs argument, that employers must also “prohibit work” during meal periods.  Slip op. at 33.  The Court rejected the employers’ contention that meals need only be “offered.”  According to many news articles, Brinker is claimed to have held that “[e]mployers must only make meal-and-rest breaks available,” which is an incomplete reading of the opinion.  The California Supreme Court rejected that argument, holding instead that employers must take significant affirmative steps beyond making meal periods “available.”

There are a number of other quick holdings that employees and employers need to take away from the ruling:

First, the Court reaffirmed that meal and rest period lawsuits are often suitable for class treatment (which simply means many employees can sue the employer together as opposed to each filing separate lawsuits).

Second, the Court set out clear guidelines for employers regarding the number and timing of rest breaks, upholding the trial court’s decision to authorize a class action on those claims.  The Court found that, the first meal period must be provided after no more than five hours of work. If an employee is entitled to a second meal period, the employer must provide it after no more than ten hours of work.

Third, the court also clarified what it means for an employer to “provide” a meal period. It means that the employer (1) relieves the employee of all duty for an (2) uninterrupted thirty minute period [for example permits the employee to leave the work premises] and  (3) does not discourage the break. The employer does not need to ensure that no work is done during the meal period, but must pay the employee at his or her regular rate if the employee works through his or her meal period.   If an employee is forced to work through their meal period a regular hour of premium pay is due as provided by the Labor Code § 226.7. 

Fourth, the court addressed rest periods. Employers in California are obligated to provide rest periods. The question is “when?” The Court held that an employee is owed a ten minute rest period for every portion of four hours worked after an employee works three and a half hours. In a nutshell, employees are entitled to ten minutes of rest for shifts from three and a half to six hours, twenty minutes for shifts of more than six hours up to ten hours, and thirty minutes for shifts of more than ten hours up to fourteen hours, and so on. 

This Court decision has answered many questions that lawyers, employees, and employers have regarding meal and rest breaks. Normally California employers are required to pay premium pay for missed meal and rest periods. Employers looking to update their policies or have them reviewed to ensure they are in compliance should contact Quintilone & Associates at req@quintlaw.com.  For more information on seeking payment for missed meal and rest periods or off the clock work as well as reimbursement of business expenses and whether you have a potential claim please contact Quintilone & Associates at req@quintlaw.com

Monday, March 19, 2012

Courthouse News Service reports Bar Members Sue Bank of America

Courthouse News Service

Bar Members Sue Bank of America

Tuesday, February 28, 2012

Callahan & Blaine Announces $30 Million Settlement of Orange County Register Class Action

Friday, February 10, 2012

Orange County Superior Court Certifies Class of AAA Employees

Summary

Richard E. Quintilone II, Esq. of Quintilone & Associates and co-counsel from multiple firms certified a class action case of almost 3,000 non-exempt employees of the Automobile Club of Southern California after two days of argument in front of the Hon. Kim G. Dunning in the Orange County Superior Court’s Complex Civil Department on December 6, 2011. By way of Court Order dated February 6, 2012, the Court confirmed the matter could proceed as a class action and that Notice should issue to the current and former Direct Sales Agents and Insurance Agents.  If you fall into one of those two categories and have questions about the case please contact Richard E. Quintilone II, Esq. at req@quintlaw.com  or Becca Jacoby at bjj@quintlaw.com via Quintilone & Associates online or via phone 949.458.9675 or fax 949.458.9679. 

Quintilone & Associates was founded in 2002, represents employees and businesses throughout the state of California.   The firm has established itself as a leading employee trial firm in wage & hour class actions and by prevailing in difficult and complicated cases.

Background

The Automobile Club of Southern California (“Defendant”) employed Plaintiff Tinisha Felix as a Direct Sales Agent from June 2004 through June 2006 at Defendant’s Costa Mesa office.   Defendant employed Plaintiff Victor Cintron as an Insurance Agent, a non-exempt or hourly paid position, on or about June 1998 to on or about April 2007, at Defendant’s San Bernardino County, California business location. 

Plaintiffs allege that, during their employment, Defendant failed to pay overtime, in violation of California Labor Code §§ 510 and 1198; did not correctly provide meal periods or pay meal period premiums, in violation of California Labor Code §§ 226.7 and 512(a); did not allow employees to take all rest breaks or pay rest break premiums, in violation of California Labor Code § 226.7; did not timely pay all wages upon termination of employment, in violation of California Labor Code §§ 201 and 202; did not timely pay all wages during employment, in violation of California Labor Code § 204; and, failed to indemnify incurred business expenses, in violation of California Labor Code §§ 2800 and 2802.  In addition, Plaintiff alleges that this misconduct constitutes unfair business practices, in violation of California Business & Professions Code §§ 17200, et seq.



Procedural Status

Plaintiff Tinisha Felix filed her Complaint on November 29, 2007.  The case was removed on January 7, 2008, and the Complaint was amended on March 14, 2008.  An Answer to the First Amended Complaint was filed on April 3, 2008.  Shortly thereafter, a Motion to remand the action back to the Orange County Superior Court was granted on April 23, 2008.

Plaintiff Victor Cintron filed his Complaint on March 25, 2009.  Defendant filed its Answer on or about June 26, 2009.

At the August 25, 2009 Initial Status Conference, the Court was informed of Cintron v. Automobile Club of Southern California and Felix v Automobile Club of Southern California, being related actions.  The Court recommended that the parties submit a stipulation to consolidate the Cintron matter with the Felix matter for purposes of determining any motion for class certification and more efficient case management.  Counsel for Defendant filed the parties’ stipulation in late September 2009, and on December 14, 2009, the Court entered an Order consolidating the actions and deeming the Felix matter the lead case.          

Motions

Plaintiffs filed their Motion for Class Certification on May 12, 2011.  Defendants opposed and the Court held two days of hearings in November and December 2011 and ultimately certified the class on December 6, 2012 via an Order signed February 6, 2012.  As the merits phase of the litigation will start as soon as the class is notified, class members or those interested in a copy of the Order are encouraged to contact Quintilone & Associates via the web www.quintlaw.com , phone 949.458.9675 or fax 949.458.9679 or mail, 22974 El Toro Road, Suite 100, Lake Forest CA 92630.  The Court is expected to set a trial date on the matter in March 2012.

Class Notice has been ordered to go out soon via a third party claims administration company ILYM (http://www.ilymgroupclassaction.com/) or toll free at 800. Phone 888.250.6810, Fax 888.845.6185,  15331 Barranca Parkway,  Irvine, CA 92618. 



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Thursday, December 15, 2011

PREVIEW OF CALIFORNIA STATE EMPLOYMENT LAWS FOR 2012

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The California Legislature employment laws that go into effect on January 1, 2012, as failure to implement policies and procedures for complying with these statues could lead to hefty penalties.
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Misclassification of Independent Contractors
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Under newly added Labor Code Sections 226.8 and 2753, employers who have willfully misclassified independent contractors will be required to publicize findings of their violations on their company websites for a year. The notice, which must be signed by a corporate officer, must include a statement that the employer has committed a serious violation by willfully misclassifying employees, the employer changed its business practice to prevent future violations of section 226.8 (a) and any employee who believes he or she is misclassified may contact the Labor and Workforce Development Agency.
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The punishment for the violation is vicious.  Any “person” (not just those statutorily defined as “employers”) who willfully (voluntarily and knowingly) misclassifies an employee as an independent contractor may be liable for penalties ranging from $5,000 to $25,000 for each incident of willful misclassification.
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The new laws also forbid an employer who has willfully misclassified an individual from charging that individual a fee or making any deductions from the individual’s compensations (e.g., for goods, materials space rental, services, licenses, repairs and maintenance) where such fee or deduction would have been illegal if the individual were not an independent contractor. Under this new legislation, there is still an open legal question whether every improper deduction or fee charged to a willfully misclassified independent contractor could give rise to a separate penalty of up to $25,000.
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Wage Theft Prevention Act of 2011
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Pay notices must be provided to new employees under the new Wage Theft Prevention Act of 2011 which will require employers to provide all newly hired, non-exempt employees with a written notice of certain wage information at the time of hire. The notice must contain the following information:
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“The rate or rates of pay and basis therof, whether paid by the hour, shift, day, week, salary, piece, commission, or otherwise, including any rates for overtime, as applicable; allowances, if any, claimed as part of the minimum wage, including meal or lodging allowances; the regular payday designated by the employer in accordance with the requirements of this code; the name of the employer, including any “doing business as” names used by the employer; the physical address of the employer’s main office or principal place of business, and a mailing address, if different; the telephone number of the employer; the name, address, and telephone number of the employer’s compensation insurance carrier; and any other information the Labor Commissioner deems material and necessary.”
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This law will help identify “what” an employee is making “who is” the true employer and eliminate any issues from the onset of employment.  If any of the above information changes, the employer must, within seven (7) days of any such change, provide the employees with notice in one of the manners set forth by the statute.
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Update to the Genetic Information Nondiscrimination Act (“GINA”)
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When we reported on this legislation we were interested to see any cases that might arise out of it. Thus far, litigation has been limited.  Regardless, the legislature amended the GINA which applies to employers with 15 or more employees. GINA forbids discrimination on the basis of genetic Information when hiring or firing employees or making decision related to compensation, terms, condition, or privilege of employment it also bars employers from requesting requiring, or purchasing genetic information with certain limited exceptions and limits the disclosure of genetic information.  Effective January 1, 2012 Senate Bill 559 extends prohibition of discrimination based on genetic information to California employers with five (5) or more employees.  While under GINA, penalties for violations are capped between $50,000 and $300,000 (depending on the size of the employer), there is no statutory limit on the amount of damages that may be awarded to an employee who demonstrates discrimination under the amended state law.  The irony is health care providers have a statutory damages cap for emotional distress at $300,000 (say for cutting off the wrong arm as an example) but small 5 person employers, with no lobbying front, can be subject to $300,000 in damages for genetic discrimination?  Employers should make sure that policies and handbooks (including insurance and wellness program language and medical certification forms are updated and that supervisors are properly trained to comply with these laws.  Quintilone & Associates can assist with handbooks and compliance review.
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California law already prohibits employers from discriminating on the basis of a person’s medical condition, including genetic characteristics.  GINA broadens the protection to employees by prohibiting employers from requesting, requiring, or purchasing genetic information about an employee or his/her family members, except under certain limited circumstances.  As a result, employer-sponsored wellness programs that seek family medical history information in the course of risk assessments may implicate GINA.  GINA also requires a modification of the Equal Employment Opportunity Commission (“EEOC”) employer posting requirement.  Go to eeoc.gov to view the current posters.
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Consumer Credit Reports
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Employers are prohibited from obtaining a consumer credit report in connection with an employee or applicant background check unless the employee or applicant holds or would hold any one of the following positions.
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(1)  A managerial position which qualifies for the executive exemption from overtime pay requirements under the California wage orders.
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(2)  A position that affords regular access to bank or credit card account information, Social Security numbers, or dates of birth for any one person (as long as the access to this information does not merely involve routine solicitation and processing of credit card applications in retail establishment).
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(3)  A position for which the employer is required by law to consider credit history information.
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(4)  A position for which the information contained in the report is required by law to be disclosed or obtained.
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(5)  A position where the individual is or will be named signatory on the bank or credit card account of the employer and or authorized to transfer money or authorized to enter into financial contacts on the employer’s behalf.
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(6)  A position that affords access to confidential, proprietary, and or trade secret information.
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(7)  A position that affords regular access during the workday to the employer’s, a customer’s or client’s cash totaling at least $10,000.
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(8)  A position in the State Department of Justice or a sworn peace officer or law enforcement position.
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Where an employee or applicant falls under on the exceptions, the employer should continue to provide the employee with appropriate written notice and an opportunity to receive a free copy of any credit report the employer runs. Additionally, the employer must now also provide the employee/ applicant with advance written notice identifying the applicable exception that applies.
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Despite these new restrictions, employers may still obtain income or employment verification reports that do not contain credit-related information and may further obtain “investigative consumer reports,” provided they comply with any other consent, disclosure and notification requirements. Since almost every employee has “A position that affords access to confidential, proprietary, and or trade secret information,” we see no real change or purpose of the law other than to add an additional layer of legislation. In other words, any employee could be subject to Consumer Credit report under this standard.  
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New Notification Requirement for Background Checks
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Labor Code Section 1786.22 will require employers that order background reports other than consumer credit reports (such as criminal background reports or motor vehicle reports) to provide the subjects of the report with the website address of the consumer reporting agency. If there is no website address, the employer must provide the telephone number of the agency where the individual can find information about its privacy practices.
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Changes in Health Benefit Contribution Requirements
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There are changes for employers with health plans to employees on pregnancy disability leave: while employers with five or more employees are already required to permit employees disable by pregnancy to take a leave of absence of up to four (4) months, they will now be required, effective January 1, 2012, to continue to provide up to four (4) months of group health coverage to those employees on pregnancy disability leave on the same terms and conditions as if the employee continued actively reporting to work.
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If an employee disable by pregnancy fails to return to work, the employer may be able to recover from the employee the premium that the employer paid under the group health plan under limited circumstances provided under the law.
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Employers should note that the requirement to continue health insurance for employees on pregnancy disability leave is in addition to the requirement that employers with 50 or more employees continue to provide medical benefits to an employee who takes time off post-delivery to bond with the baby under the Family Medical Leave Act and California Family Rights Act.
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Employers, both large and small, should update their policies and make sure that their employees’ rights notices and postings are up to date and review all independent contractor agreements to remain in compliance.  To comply with the substantive requirements of GINA, employers should train supervisors to avoid discussing medical issues with employees that may implicate GINA.  Employers should also review their wellness programs to ensure that they comply with GINA. Please contact Richard E. Quintilone II, Esq. at  Quintilone & Associates if you have any questions about the GINA and your business.