Driving a Truck For Deluxe Auto Carriers? You May Owed $$$

On March 23, 2016, the San Diego labor law attorneys at Blumenthal, Nordrehaug & Bhowmik filed a class action lawsuit against Core-Mark International, Inc. alleging that the transportation company failed to lawfully compensate their Truck Drivers for all their time spent working, including time spent while not driving the company's trucks. The class action lawsuit against Core-Mark International, Inc., is currently pending in the San Diego County Superior Court, Case No. 37-2016-00009669-CU-OE-CTL. To read a copy of the Complaint, please click here.

The class action lawsuit alleges that Plaintiff and other truck drivers working for the Core-Mark in California are paid on a piece-rate basis. The lawsuit claims that the truck drivers are not paid all minimum wages for all their hours worked because of Core-Mark's alleged failure to record all time worked. 

Many trucking companies pay their truck drivers by the mile or by the load.  These types of payment schemes do not pay truck drivers for all the time they actually work, including time when the wheels are not spinning on the road, including but not limited to the work performed during pre-trip and post-trip inspections and time spent allegedly waiting for loads to be ready for transport.

There are other truck drivers in California working for trucking companies that should be getting paid minimum wages.  Deluxe Auto Carriers (or Excel Transporting & Towing) truck drivers are likely owed minimum wages and payments for missed meal and rest periods

According to the company's website, Deluxe Auto Carriers provides services in the automobile transport industry.  If you are a truck driver for Deluxe Auto carriers, and would like to file a Deluxe Auto Carriers lawsuit.  Click here to speak to an attorney with experience handling trucking cases.

Employee or Independent Contractor?

Another serious major issue emerging in several wage and hour class actions is whether employees have been misclassified as an independent contractor as opposed to an actual employee. While many employers will attempt to classify employees as independent contractors for tax liability purposes, these misclassifications also have many implications in the employee’s entitlement to overtime wages and many other protections under the FLSA or other relevent state labor codes.

In determining an employee’s status as an independent contractor, there are many important questions to consider. Most of these questions relate to how much control the employer has over the employee (or indendent contractor).

Who is buying the materials?

Who invested in the equipment?

Are the services different from that of the employer?

Does the service require a special skill?

Are the services performed under the supervision of the employer?

Does the (supposed) independent contractor have employees?

Do they have other clients?

How is payment being made?

There are many other quetions and factors which the court considers in trying to determine an employee’s status. However, many employers can find unusual tricks that will make the analysis more complicated for courts. For example, in Hilton v. Apple, the class actions lawyers at Blumenthal, Nordrehaug, and Bhowmik alleged that Apple engaged their employees in Yellow Dog contracts in order to classify them as independent contractors and avoid paying them normal and overtime wages. A yellow dog contract is when the emplyees agree not to be part of a labor union.

It would be wise to contact a California labor attorney if you are unsure as to whether you are an employee or an independent contractor. First start with considering some of the questions addressed above and then consult with an employment lawyer for further clarification. Most employment attorneys — especially ones handle claims dealing with overtime claims — will offer free consultations for these types of cases. Contact one and claim lost overtime wages before the statute of limitations bars you from recovering in the near future.

The Trouble with Unpaid Internships

There are strict limitations and guidelines to unpaid internships. Even though unpaid interns are usually college students working for class credit, they are often non-exempt from state and federal wage and hour laws. Therefore, an intern is entitled to payment for all hours worked if their employer does not meet the requirements of unpaid internships.

State and federal laws usually require employers to pay interns at least minimum wage. According to the Los Angeles Daily Journal: “For an employer to be exempt from this requirement, it must devise an educational training program, which can consume time and resources with few benefits to the company.” Not surprisingly, it is very common for employers to disregard this requirement, especially in these financially difficult times. Since there are a lot of people willing to work for free to gain experience, many employers feel unobliged to strictly follow wage and hour laws.

In a recent case, Fox Searchlight Pictures was accused of violating wage and hour laws by failing to provide their unpaid interns with an educational experience. Allegedly, the “Black Swan” interns did not receive educational training that would have contributed to their career goals; they simply completed tasks that normally would have been completed by paid employees. The two interns who initiated this case are trying to get class certification; therefore, they want to start a class action lawsuit against Fox Searchlight Pictures.

Ultimately, unpaid internships should primarily be to the benefit of the intern, not the employer. If an intern is taking the place of a regularly paid employee, then they are entitled to at least minimum wage. Thus, if an employer hires an unpaid intern instead of a regular worker to save money, they are in direct violation of wage and hour laws. Above all, unpaid internships are supposed to be learning experiences that provide career preparation. An unpaid intern’s job duties should not be adapted to fundamentally assist in a company’s operations. It should be adapted to provide a beneficial educational experience.

In general, California wage and hour laws regarding unpaid internships are in accordance with the criteria listed on a U.S. Department of Labor fact sheet. According to an article on hr.blr.com: “In 2010, the California Division of Labor Standards Enforcement (DLSE) noted in an opinion letter that it has historically followed federal interpretations that recognize the special status of interns who perform some work as part of an educational or vocational program.” In addition to the six standards listed on the Labor Department’s fact sheet, the DLSE added five more criteria to create an “11-factor test.”

Milestone Decision Regarding Meal Breaks at Work

On April 12th, a decision for the Brinker Restaurant Corporation v. Superior Court case was finally reached. This long-awaited decision had been pending for over three years. Basically, this decision clarifies the ways in which California employers should administer meal and rest breaks.

Brinker International’s restaurants include Chili’s and Maggiano’s Little Italy. The plaintiffs in this major class action case included both front-of-the-house and back-of-the-house restaurant employees. They were all non-exempt, hourly paid employees who worked at one or more of Brinker’s restaurants. They claimed that they were discouraged and disallowed their meal breaks on a continuous basis.

Essentially, the decision of this case clarified two main points. First, employers are not required to force their employees to take meal and rest breaks. Employers must provide an uninterrupted 30-minute break for every 5 hours of work; however, it is not their responsibility to ensure that their employees actually take it. Secondly, employers do not get penalized if their employees skip or only take part of their break. It is at the employee’s discretion as to how they use their provided break, or use it at all.

It is still necessary for employers to track when their employees start and finish their meal and rest breaks. If an employee chooses to work through their break, their employer is still mandated to regularly pay them for all hours worked. It is important to note that if an employee works no more than 5 hours, they are not entitled to a meal break. It is also important to note that employers must provide a 10-minute rest period for employees that exceed three-and-a-half hours of work.

Ultimately, this decision has been regarded as a favorable outcome for California employers. They should take it with a grain of salt, though. They should use caution and counsel when it comes to meal and rest breaks. In particular, employers must avoid incentivizing their employees to not take their breaks. Giving your employees a reason to not take a break, or intimidating them not to, is unlawful. To avoid this, it is advisable for employers to clearly articulate that working through breaks will not contribute to a favorable outcome, such as a raise or career advancement. Undoubtedly, employers should use diligence when creating and communicating their company’s meal and rest break policies, and making sure that they are in compliance with the California Labor Code.

Manhattan woman fired for being "too hot"

Lauren Odes, a 29-year-old voluptuous blonde, was fired from her midtown Manhattan job for what she claims was being “too hot” for work. Odes is now suing her former bosses for gender and religious discrimination. Her bosses were Orthodox Jews.

Odes was working as a coordinator of shipments of samples to customers at the 5^th Avenue headquarters of Native Intimate’s, a wholesale lingerie company. She believes she was wrongfully terminated because of the size of her breasts and shape of her body. At one point, her boss had asked Odes to tape down her breasts. Odes was appalled at the suggestion.

Odes’ attorney, Gloria Allred says, “The treatment was discriminatory, profoundly humiliating and unlawful.”

The allegations of the gender and religious discrimination were outlined in the complaint filed with the Equal Employment Opportunity Commission (EEOC).

Odes was hired on April 24^th. Her supervisors often complained about her physical appearance and clothing. Odes insists that there was no dress code. Her co-workers wore tank tops or athletic wear.

On Odes’ second day of work, she wore a short sleeve, yet still conservative, purple dress and was told by the Native Intimate’s owners that the dress was “drawing too much attention and should not be worn for her own safety”.

The following work day, Odes wore a hooded sweatshirt but was still criticized by her bosses. The next day she wore a knee-length dress with a shawl over her shoulders so that she might please her bosses. Her bosses were still unhappy. They told her to wear a red bathrobe over her dress.

“I felt ridiculous and extremely embarrassed, others in the office were laughing and asking why I was wearing it and I told them what I was told,” Odes said.

Odes removed the robe and went to buy another outfit that would be appropriate for her bosses. She then got a phone call saying that she was fired, which she believes is because of the shape of her body and the size of her breasts.

She believes she was fired because of gender and religious discrimination.

“I do not feel an employer has the right to impose their religious beliefs on me when I’m working in a business that’s not a synagogue, but sells things with hearts on the female genitals and boy shorts for women that say hot in the buttocks area,” Odes, who is in fact Jewish, said.

Target wrongfully fires disabled employee for being late to lunch

The Target Corp. of Target retail stores has just paid $275,000 to settle a wrongful termination case out of court. Margarita Arriaga worked at a Target store in Woodland, CA for more than 16 years when she was fired for being late going on her lunch breaks.

The wrongful termination lawsuit was to go to Sacramento federal court last week. Arriaga, who is now 40-years-old, worked as a cashier, shelf stocker, and saleswoman. Court papers say that she was “well-liked by her managers and peers, and she received generally satisfactory performance evaluations.”

Target claims she was fired because she was late taking her meal break on three different occasions in an 18 month period, which is “an automatic ground for termination of any Target employee.” One of those times, Arriaga was only two minutes late.

Arriaga has a diagnosed disability that makes it difficult for her to keep track of time and often times was reminded to take her breaks by other employees. Target, however, knew of her disability, and wrongfully terminated her in June 2009 without any verbal or written warnings.

Target denies that they knew of her disability. “Target did not discriminate based on disability, did not fail to reasonably accommodate, and did not fail to engage in the interactive (accommodation) process, because Target did not know about plaintiff’s alleged disability.”

Arriaga claims that it was well known at her Target store that she often lost track of time because of her disability. She even obtained her job in the first place through a non-profit community organization that helps mentally disabled people get jobs. That same organization sporadically had “job coaches” come to the store to help her deal with any difficulties she might have had at work.

In addition to her wrongful termination, the suit alleged that “Target, without any factual basis to justify its actions, opposed in writings delivered to the Employment Development Department Arriaga’s application for unemployment benefits, and falsely accused Arriaga of conduct which Target alleged was the equivalent of a voluntary resignation.”

The EDD “conducted its own investigation … and determined that Target’s opposition … was without merit and that Arriaga was in fact entitled under law to the benefits.”

Target spokeswoman Molly Snyder said “We take numerous steps to accommodate team members and guests with disabilities and we are confident in our policies and procedures. The terms of the agreement are confidential, therefore we cannot discuss it further.”

Oklahoma Representative Loudly opposes protection from sexual orientation discrimination in the workplace

Last week President Obama announced that he supports the idea of gay marriage, setting off an uproar of opinions both in favor and opposed to his announcement. One of the most opposed came from Oklahoma Republican Representative, James Lankford, who told the website, ThinkProgress, in an interview that “he was against laws designed to protect employees from workplace discrimination based on their sexual orientation, because of his belief that being gay is a choice.”

Lankford says that race discrimination and sexual orientation discrimination in the workplace are two different things.

An excerpt from the interview from ThinkProgress:

STRASSER: Would you support a law that says you can’t fire someone for their sexual orientation –
KEYES: Similar to protections for people on race or gender?

LANKFORD: Well, you’re now dealing with behavior and I’m trying to figure out exactly what you’re trying to mean by that. Because you’re dealing with — race and sexual preferences are two different things. One is a behavior-related and preference-related and one is something inherently — skin color, something obvious, that kind of stuff. You don’t walk up to someone on the street and look at them and say, “Gay or straight?”

KEYES: But you think that even if you can’t see they’re that way, you don’t think someone is born gay necessarily?

LANKFORD: Do I personally? No. I don’t. I think it’s a choice issue. Are tendencies and such? Yes. But I think it’s a choice issue.

Lankford is not the only young Republican to express opposition to Obama’s remarks. Representative Allen West of Florida said protection from sexual orientation discrimination is unnecessary because that type of discrimination simply does not happen in the U.S.

“That don’t happen out here in the United States of America,” he told ThinkProgress.”

Currently, the Equal Employment Opportunity Commission (EEOC) does not protect employees from sexual orientation discrimination. It only protects from discrimination based on age, disability, sex, national origin, race, religion, pregnancy, and sexual harassment.

However, other federal agencies, many states, and municipalities do protect employees from sexual orientation discrimination.

The U.S. Office of Personnel Management issued Executive Order 13087 in 1998 that prohibits discrimination based on sexual orientation.

Additionally, last week a bipartisan group of senators asked for renewed hearings on the Employment Non-Discrimination Act, legislation that would expand employee anti-discrimination language to include sexual orientation and gender identity. The issue will be taken up later this month in the Senate Health, Education, Labor & Pensions Committee.