Category: Business & Professions Code Violations

Discrimination

Discrimination vs. Disparagement in the Workplace

Does it seem like your boss is always picking on you? For some reason, you get written up for things that your co-workers do without consequence? Maybe your supervisor never approves your vacation time requests? Or do you feel like you were passed over for a promotion, though you were the most qualified candidate? Feeling singled out may lead you to believe you are being discriminated against. Discrimination is broadly defined as “the unjust or prejudicial treatment of different categories of people or things, especially on the grounds of race, age, or sex”. However, in a legal environment, discrimination is defined a bit differently. In order for the treatment you are experiencing to be considered bona fide discrimination, it MUST be based on your gender, race, religion, sexual orientation, or some other protected class. To say that your boss “just doesn’t like me” with no prior indication that their dislike is based on a protected attribute does not equal discrimination.

You may be asking, what is a protected class? “Protected class” refers to specific characteristics rather than all people with that characteristic. Per anti-discrimination laws, protected classes include race, color, religion, sex, national origin, disability, and age (40 and older). People sometimes make the mistake of thinking that because they possess a protected attribute, they are automatically protected from termination for any reason at all. This is not the case. For example, a lay-off of 50 employees includes someone that is 60 years old. They are not automatically protected from termination, though they are over 40 years old. However, if the employer terminated 50 people all over the age of 40, there may be cause to believe they were all let go due to their age, which would be age discrimination.

Another common scenario where one might think they have been “discriminated against”, is after being passed over for a promotion. You begin to search for answers – why didn’t you get the promotion? What could it possibly be? It can’t be your performance…you always receive great reviews. Nor can it be your experience level, as you have been with the company longer than most other employees. So what could it be? While the situation is unfortunate, and maybe unfair, it doesn’t necessarily mean it’s illegal. You would want to look back and think, do I have any real evidence to show that this was due to my (age, race, religion, etc.)? Have you ever heard any comments regarding the particular protected class you believe they are discriminating against? Whether the comments were aimed at you or someone else, whether it was serious or a “joke”, they can be very telling. Have you noticed a pattern of this happening to the same group of people in the past? If not, there probably were other factors that led to the decision of who received the promotion.

Often, people believe favoritism and discrimination are akin. Unfortunately, they usually aren’t. Favoritism is of course, frowned upon, and unquestionably bad management. But once again, unless the favoritism is based on certain characteristics, it isn’t discrimination. It’s one thing for an employer to show favor for employees that they, for example, find funny. They are always laughing with these employees and seem to give them better hours, duties, etc. because they just “like them more”, whether or not these employees are actually the hardest working or most deserving of praise. Sense of humor and ability for social interaction is not a protected class. Therefore, if your boss treats you differently because they don’t find you as humorous, it is not discrimination. However, it is entirely different for an employer to give all of the best shifts/promotions/benefits to only white employees. Because race is a protected class, this would be an example of legitimate discrimination. Another example of actual discrimination is if the boss asks everyone to pray out loud every morning. You refuse because it does not align with your religious beliefs. Afterwards, your boss seems to single you out or treat you punitively. As religion is in fact a protected class, this would be considered discrimination, and you may be able to file a claim against the employer.

If after reading this you believe you have been discriminated against in the workplace, contact our office. We can evaluate the situation and see if there is a potential case that we can assist you with.

 

 

 

 

Independent Contractor Class Actions on the Rise

As the saying goes, when it rains, it pours. Workers across the country may be thinking something along those lines given the recent wave of high-profile class action settlements for employees misclassified as independent contractors.

Most recently, the Uber driver case may be coming to a lucrative end for individual class members. Uber recently agreed to pay a hefty sum of up to $100 million in a proposed class action settlement. The settlement will give 385,000 Uber drivers in multiple states a chance to stake their claim, with some drivers potentially receiving $8,000 or more. It remains to be seen whether this settlement will reshape the employment practices in the so-called “on demand” economy, but it sure seems like a good start.

In more of an old-school industry, professional cheerleader class actions are shedding light on industry practices simply accepted for many years. In one instance, the Oakland Raiderettes brought a lawsuit alleging they were never paid minimum wage or overtime wages, and were subjected to illegal wage deductions for being late to practice or wearing the wrong nail polish color, among other unfair practices. As a result of the class action, the Raiderette contract was changed and the case ultimately settled for $1.2 million – up to $8,500 per cheerleader.

Similarly, exotic dancers brought a class action a few years back for minimum wage violations and unlawful wage deductions stemming from their misclassification as independent contracts. In this industry, the clubs tend to control when dancers work, what they do at work, what they can wear, and other aspects of their jobs, yet the clubs force the dancers to sign independent contractor agreements that authorized deductions from their pay for the club’s business costs. These deductions include stage fees, charges to use the bathroom, charges to use the dressing room, tip splitting with managers, fines for being late, and fines for not selling enough drinks – all of which would amount to illegal deductions from employee wages under California law. On top of essentially paying the club’s overhead costs, the dancers ultimately foot the bill for taxes and benefits. These cases are cropping up all over the county, with one particular case resulting in a $12.9 million settlement fund for dancers in multiple states.

Finally, after a decisive victory in the Ninth Circuit Court of Appeals, over two thousand FedEx drivers now have a chance to participate in a whopping $226 million settlement. The Ninth Circuit found the drivers were misclassified as independent contractors under the “control” test. Specifically, FedEx controlled the appearance of drivers and their vehicles, times the drivers worked, what packages drivers delivered, how and when drivers delivered packages, and what geographical areas drivers serviced. This case, which extends back to the year 2000, is one of many cases against FedEx where courts have found its drivers were misclassified as independent contractors.

So why do employers take the risk of misclassifying workers when they potentially face such staggering payouts? From one perspective, employers can avoid many business costs by misclassifying workers as independent contractors. California employment law requires employers to pay their non-exempt employees wages for each hour worked (including overtime and double time when applicable), provide meal periods and rest breaks, reimburse business expenses (like uniforms and tools), pay unemployment, disability, and social security insurance, among other requirements. Avoiding these expenses has obvious benefits to a company’s bottom line. However, California law recognizes the potential windfall for employers, and has amped up the punishment in response. In addition to owing unpaid minimum wages, overtime, meal break penalties, rest break penalties, expense reimbursements, interest, and a slew of penalties available in most wage and hour cases, Labor Code section 226.8 gives the State the power to levy a $25,000 fine (among other fines) to deter and punish independent contractor misclassification. Under the Private Attorneys General Act or PAGA, employees can enforce this Labor Code section without waiting for the government to pursue their claims.

As California law and the recent settlements suggest, we may be in the midst of a new trend where companies that sacrificed legal compliance to save a quick buck will feel the long-term consequences. It’s decision time: who will cower under the industry standard and who will buck the trend?

Sources:

manicurists

Manicurists Unite! The Truth About Your Nail Salon

It is a luxury for most women and a regular routine for many women (and men) to get their manicures and pedicures done. We pay the bill and tip the manicurists and go on with our day. However, what’s the real cost of those acrylics or that gel manicure?

In Little Saigon, members of the California Health Nail Salon Collaborative hosted a community forum for both workers and owners to listen and speak about the growing national spotlight on the treatment of manicurists in the industry. In the status quo, many owners don’t know what the proper regulations for business are; they merely follow the model and example that owners before them followed.

There are often no paper records for the manicurists working in salons; they are paid cash and work whatever hours the owners need them to—even if it’s after closing and they’ve hit all sorts of overtime hours. If the owner does have some sort of tax record for their manicurists, it’s usually a 1099. Salon workers are consistently misclassified as independent contractors though they are under the full control of the salon and are treated as employees.

Last year, average manicurists made $22,500. Often, these employees are working 60 hour work weeks, but not getting paid proper overtime rates of pay or meal/rest breaks. Representatives from the U.S. Department of Labor, Tony Pham and Lydia Nguyen, spoke to the largely Vietnamese forum. They explained when investigators inspect salons, the first document they will ask for are time cards.

Both manicurists and owners at the forum talked about the “customer is first” mentality of nail salons. Saying no to a customer who walks in right at closing is difficult, so the manicurists stay to work. Those hours add up, but not at a rate favorable to the employee.

Source: LA Times

3 Cheers…For Fair Wages!

We have been closely following the story of the Oakland Raiderettes in their battle for fair pay since a suit was initially filed last year. Following the Raiderettes’ suit, cheerleaders around the nation filed their own legal actions against their respective teams and the NFL—the Cincinnati BenGals, the New York Jets Flight Crew, the Buffalo Jills, and the Tampa Bay Bucs to name a few.

The Raiderettes settled their lawsuit last fall for over a million dollars. The cheerleaders alleged that the Bay Area team only compensated each cheerleader the equivalent of $5 per hour. Additionally, the cheerleaders paid for all expenses, including travel and appearance, out of pocket and were even docked when an “infraction” occurred (i.e. coming into practice with the wrong poms, dying their hair an unauthorized color, etc.).

Last week, Governor Jerry Brown just added the icing to the cake. He signed a new bill into law that classifies professional cheerleaders as employees of the sports teams they cheer for. They must be paid at least minimum wage for all hours worked, including practices and promotional appearances.

State Representative Lorena Sanchez, the main sponsor for the bill, regarded the law as “an important step toward ensuring that multi-billion dollar sports teams treat cheerleaders with the same dignity and respect as every other employee who makes the game-day experience special.”

In response to the law, the NFL advised teams to follow applicable labor laws but clarified that the cheerleaders would be employees of their respective teams, and not of the NFL. This may come as a response to one of the earlier labor lawsuits that named the NFL as a co-defendant.

While the three professional football teams in the state need to rethink their cheerleader pay pyramids, the NBA announced that their teams already treated their cheerleaders as employees, therefore, they are compliant with the law.

Source: CNN Money

Washio’s ‘Ninjas’ Fight Back

There’s an app for everything these days. Want to find a good restaurant?—There’s an app for that. Need to know what traffic looks like?—There’s an app for that. Want to know what you look like with a new haircut?—There’s an app for that. One of these novel apps to hit the market includes Washio, an online-app based company that picks up and delivers dry cleaning. The company has a network of drivers, dubbed “Ninjas,” that flit about town, covertly collecting your dirty laundry and completing their cleaning missions. But Washio’s Ninjas have had enough.

In a class action lawsuit filed last month in San Francisco, Ninja Barry Taranto is alleging the company misclassified him and other Ninjas as independent contractors and subsequently owes them business expense reimbursements.

Ninjas are paid on a per delivery basis and not an hourly wage. They sign an exclusivity agreement which disallows Ninjas from working for any other similar company.

They also drive their own vehicles, but, the company has a set of rules and standards by which the Ninjas must transport its clientele’s precious cargo. Ninjas are subject to a code of honor—one must store the clothes in a specific way; one must interact with customers in a specific way; one must abide by a strict schedule of collecting and dropping off cargo. Ninjas are a laundry version of Uber and Lyft drivers, who are alleging similar labor violations.

The lawsuit contends that the entirety of Washio’s business relies on the Ninjas—without them Washio would not exist. They are “fully integrated into Washio’s business.” Washio’s control over the Ninjas can possibly point to an employee/employer relationship, which means, the Ninjas should be getting reimbursed for expenses incurred while driving—gas, maintenance, parking fees, etc.

Will the Ninjas emerge victorious? We’ll monitor the story closely and report back when the mission is complete.

Source: Taranto v. Washio Inc.