Category: Employment Discrimination

Employees Seating Requirements

To Seat Or Not To Seat

A popular wage and hour claim surrounds employee seating at retail stores. In California, employees required to stand for extended periods of time at work may be able to sue their employers if they are able to prove the nature of the work reasonably permits the use of seats. However, what constitutes “nature of work” and “reasonably” are not clearly defined.

Retail stores, like CVS Pharmacy and Kmart, have been sued for failing to provide suitable seating to its employees. In the case against Kmart, employees recommended a reconfiguration of their work station so adequate seating could be provided. The court rejected this proposal but endorsed a “lean-stool,” which would allow employees to lean while working and move from a leaning to a standing position with ease.

Kmart strongly argued against the seating claim pointing to customer service. Kmart stated, “its cashiers should be required to stand in order to project a ready-to-assist attitude to the customers waiting in line, all of whom are already standing.” Finding this argument persuasive, the court held “where an employer requires its employee to stand for good customer service and relations (with appropriate rest breaks), then this should be permitted so long as the rationale is genuine and grounded in reason.”

This is certainly not the end of the seating battles. As courts continue to weigh in on this front, employees should take a “seat” until more guidance is provided by the courts on this issue.

Arbitration Agreements

Arbitration Agreements – Sleight of Hand Not Allowed

Avery v. Integrated Healthcare Holdings

The California Court of Appeal recently considered whether or not plaintiffs seeking to pursue claims as a class for wage and hour violations could be compelled to arbitrate claims based on a series of documents purporting to reflect acknowledgements to arbitrate such claims.  The Court of Appeal affirmed the trial court decision finding no enforceable arbitration agreement existed because the incomplete and confusing patchwork of documents Defendant relied upon were not sufficient to establish an agreement to arbitrate.  The Court reasoned that Defendant needed to demonstrate that plaintiffs agreed to the specific arbitration agreement that Defendant contended bound plaintiffs to arbitrate their claims.  Because none of the documents referred to the specific employee handbook used as the source of the arbitration policy, the Court found that even if plaintiffs signed the acknowledgements, the acknowledgements were not sufficient to establish that plaintiffs had agreed to the arbitration policy.

Celebrity Chef’s Restaurant Not Protected

Celebrity Chef’s Restaurant Not Protected From Wage And Hour Class Action

Even celebrities should be mindful of California’s wage and hour laws.  Gordon Ramsay, well-known restaurateur and outspoken television personality, is learning the hard way as his restaurant Fat Cow located at the Grove shopping center in Los Angeles was sued for wage and hour violations.

Two former employees filed a class action lawsuit against Chef Ramsay’s restaurant – Fat Cow – alleging claims for failure to pay minimum wages, failure to pay overtime wages, failure to provide meal and rest periods or compensation in lieu thereof, failure to provide accurate itemized wage statements, failure to pay all wages due upon separation of employment and for violation of the unfair competition law.  The class will likely include servers and baristas that were employed by Fat Cow in California from at least 2012 and 2013.

Chef Ramsay’s attorneys claim these issues originated from previous management.  However, relying on that defense would only place Chef Ramsay in further hot water as California law confirms that employers have a duty to comply with wage and hour requirements.

iWANT My Wages: Apple Slapped With “BAG CHECK” Class Action

Two former retail employees of Apple, Inc. have brought suit against the trendy-electronics giant in the United States District Court for the Northern District of California. The two employees seek to represent a national class of Apple retail employees who were subject to a mandatory “bag check” before lunch and at the close of each work day while “off the clock”.

Amanda Frlekin a resident of Los Angeles, and Dean Pelle, a resident of Brooklyn, New York allege that Apple had a common policy of requiring employees to undergo personal bag and package checks that could last anywhere from 5 to 15 minutes per check. The problem is that these checks occurred before the employees were allowed to leave for lunch, or the end of their shifts but after they had already clocked out. Although this may seem like an otherwise trivial issue, the resultant effect could mean that employees were shorted over an hour’s worth of waged for each week they worked. Throwing penalties into the mix and quantifying these claims by a nation-wide class of individuals means Apple could face tens of millions of dollars in damages for unpaid wages.

Apple, Inc., however, is not the only offender. Many other retail companies expose themselves to this type of liability by forcing their employees to undergo bag checks after these employees have already punched out.

Protected Leaves of Absence

PROTECTED LEAVES OF ABSENCE FOR SPECIAL CIRCUMSTANCES

  1. Time Off For Noble Deeds – If employees want to help save the world, in California, they can do so without fear of losing their job.  Lab. Code §§ 230.3-.4; 1501-1507.  Employers in California are required to allow employees to take unpaid leaves of absence to serve as volunteer firefighters, reserve peace officers, emergency rescue personnel, or as a member of the Civil Air Patrol.  Any employer who discriminates against an employee for taking time allowed under the law is guilty of a criminal misdemeanor, and the affected employee is entitled to reinstatement, lost wages, and benefits. 
  2. Time Off For Saving Lives –If an employer employs 15 or more employees, an employee that has worked for the employer for at least 90 days is entitled to take up to 5 business days of paid leave during any one-year period to donate bone marrow, and up to 30 business days of paid leave during any one-year period to donate an organ.  Lab. Code §§ 1508-1513.
  3. Time Off For Classroom Assistants – Parents, guardians, and grandparents with custody can take unpaid time off (or use vacation/personal leave) up to 8 hours per month and 40 hours per school year to participate in their child’s school or day care activities.  Lab. Code § 230.8.  The penalty for violating this provision includes reinstatement, lost wages and benefits, as well as a civil penalty of three times the lost wages and benefits.
  4. Time Off For Addicts And Those Who Need Help ReadingEmployers are also obligated to allow employees to take unpaid leave as a “reasonable accommodation” to participate in alcohol or drug rehabilitation programs, or adult literacy programs, if they employ 25 or more employees.  Lab. Code §§ 1025-26; 1041.