Category: Wage & Hour Rights

See’s Candy slapped with a class action



See’s Candy, the acclaimed candy retailer headquartered in San Francisco was recently slapped with a class action in San Diego Court. At the heart of the allegations was the candy store’s “rounding” policies with respect to their employees’ punch cards.

See’s, much like many other companies today, used an automated timekeeping system known as Kronos to keep track of employee time. Based on the hours lodged by employees on Kronos, See’s would calculate an employee’s pay after “rounding” the employee’s time to the nearest tenth, also taking into considerations the company’s grace period policy. After trial court granted summary judgment for employees, See’s filed an appeal.

The Fourth Appellate District reversed, shedding additional light on what constitutes an unlawful rounding policy. The Court held that a rounding policy will not be found unlawful if it is “fair and neutral” and does not result in underpayment of wages to the employee. Conversely, employees who are able to prove underpayment for their time are likely subjected to an unlawful rounding policy and may be entitled to recovery of penalties in addition to their unpaid wages.

Undocumented workers still entitled to recover unpaid wages

Two Federal Circuit Courts have this year opined on the issue of undocumented Plaintiffs and their rights to collect unpaid wages. In Lucas v. Jerusalem Café, LLC and Lamonica v. Safe Hurricane Shutters, Inc. the Courts found that undocumented and unauthorized aliens, despite their status, could still recover for underpayment and non-payment of wages.

In Lucas, the Court said, “There is nothing in the FLSA that would allow us to conclude that undocumented aliens, although protected by the Act, are nevertheless barred from recovering unpaid wages thereunder.” In this same regard, the Lamonica Court held that an undocumented worker’s “ability to recover unpaid wages under the FLSA does not depend upon his immigration status.”

The underlying principle here is clear and employees should not be hesitant to pursue actions for unpaid wages because of their residency status. If you do work, you should be compensated in accordance with the law.

New Laws For Commissioned Employees

California employees receiving commissions have a right to know how their commissions will be calculated and paid.

Effective January 1, 2013, employers who pay employees by commission are required to memorialize the commission arrangement in a written contract that includes: the method for calculating the commissions, a description of when the commissions will be deemed earned and how they will be paid and requires the employee to sign a “receipt” retained by the employer. California Labor Code § 2751.

Labor Code § 204.1 defines commissions as “compensation paid to any person for services rendered in the sale of such employer’s property or services and based proportionately upon the amount or value thereof.”

Even though there is no corresponding penalty provision for violation of Labor Code § 2751, employees still have the option to file a claim for penalties under the Private Attorneys General Act of 2004 (Labor Code §§ 2698, et seq.) for violation of this law.

Not all commissions and bonus plans must comply with this new law, but consult with an attorney at Aegis Law Firm, PC to determine whether the commission structure and/or bonus plan you are subject to implicates Labor Code § 2751.

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.

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.