Bosh’s Former Driver Sues for Overtime Pay Violations

Chris Bosh’s former driver is suing him for violating overtime law. Michael Ray, the former driver, alleges that the NBA star failed to pay him overtime that he was due after moving to Austin, Texas in the summer of 2018.

In a federal lawsuit that Michael Ray filed in Austin, Texas, he claimed he started work as Bosh’s driver when the NBA player and his family were residents of the state of California. According to the lawsuit filed by Ray there were five people employed in the Bosh family home. Two were household managers. Two were employed to maintain the yard and the exterior of the home. And the fifth was Michael Ray himself, employed as Bosh’s driver.

 While the family was living in California, Ray claims that Bosh paid him by the hour and did not usually require any overtime hours. But on the rare occasion that Ray did put in overtime hours at Bosh’s request, he was paid overtime wages for the hours worked. This changed in July 2018 when Chris Bosh moved with his family to Austin, Texas. In the process of the move, Bosh cut back on his staff and placed his driver, Michael Ray, on a fixed salary.

At this point, Ray claims his duties were expanded to include more household duties, including unpacking boxes from the family’s move from California to Texas, putting together new furniture ordered for the new household, taking out the garbage, and supervising contractors and pest control workers while they were working on the Bosh property. According to the suit, Ray was also required to run errands for the family. For instance, he was required to go the pharmacy, the grocery store, pick up food ordered from restaurants, etc. The additional duties increased Ray’s working hours to over 70 hours per week.

Ray claims, despite the drastic increase in hours and obvious overtime, Bosh refused to provide him with any overtime pay. According to Ray, Bosh declined to provide him with overtime pay because Ray was on a salary and Bosh insisted that as that was the case, Bosh could require he work as many hours as necessary. Ray claims that within days of raising the issue of overtime pay, Bosh terminated his employment. Ray, who is now back in California, is seeking unpaid wages, reinstatement of his job and other damages.

If you have been denied overtime pay or if you need to discuss what constitutes an overtime pay violation, please get in touch with one of the experienced employment law attorneys at California’s Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Recent Suit Claims Fresenius Left On-Call Time Out of OT Calculations

When Fresenius Medical Care Holdings Inc. calculated employee pay rates at their Ohio hospitals, they allegedly failed to include a stipend for on-call hours. In doing so, they effectively robbed their employees of overtime they were legally obligated to pay. As a result, Fresenius is now facing a proposed class action that was filed in Boston federal court (Freeman v. Fresenius Medical Care Holdings Inc. et al., case number 1:19-cv-10439).  

Fresenius Medical Care Holdings, a German company with North American headquarters in Massachusetts, is the world’s largest provider of dialysis products and services. David M. Freeman, plaintiff in the suit, was employed as a nurse by the company in 2009. During his time with the hospital, he worked at a number of their various facilities throughout Northern Ohio. As payment for his work, Freeman claims he received flat-rate stipends for time he spent on call on top of his hourly rate of pay. According to the lawsuit, Fresenius company policy does not recognize on-call time as hours worked and Freeman claims that this policy defies the Fair Labor Standards Act (FLSA) by excluding the on-call pay from the regular rate for the purposes of overtime calculations.

Freeman believes that the company knew that on-call pay and other, similar forms of payment for employment must be included according to employment law when computing an employee’s regular rate of pay for overtime calculations. Due to the obvious disregard of the illegality of their policy, Freeman alleges that Fresenius acted in reckless disregard for the illegality of their actions when excluding on call pay. The plaintiff argues that the practice of excluding on call pay in this manner runs counter to both longstanding U.S. Department of Labor regulations and case law.

For example, an agency regulation that was issued in the early 1980s states that on-call payment is “clearly paid as compensation for performing a duty involved in the employee’s job.” The regulation goes on to say that as on-call payment is payment for a job duty, it must be included as part of the employee’s regular rate of pay.

The lawsuit brings claims for OT violations under both federal and state law and seeks declatory and injunctive relief. It also establishes a putative class of individuals employed by Fresenius Medical Care North America during the last two years. In addition to naming Fresenius as a Defendant in the suit, Freeman named its subsidiary, Renal Care Group Inc. due to the claim that they issued checks on behalf of Fresenius.

If you have concerns about how your employer calculates your overtime pay or if you are not receiving overtime pay, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP today.

California Court Rules On-Call Tilly’s Workers Should Receive Pay

Some employers require workers to call in in order to find out if they have to work their shifts. Some employees are required to call in just hours before they may need to start work. This practice triggered California’s requirement that workers be given “reporting time pay.” A split California appeals panel recently brought this up when reviving a proposed wage class action against Tilly’s Inc. In doing so, they potentially opened up many other California retailers to similar (potentially expensive) suits.

The Second Appellate District said Tilly’s on-call policy triggers California State’s Wage Order 7, in which it states that employers must provide workers with pay when they report to work but are not put to work or provided with at least half of their usual/scheduled day’s work. Since workers are “reporting” when they call in, Wage Order 7 means employers must pay them between 2-4 hours worth of wages depending on the length of the scheduled shifts being referenced.

Tilly’s practice of having their workers call in to see if they need to work their shifts just hours before they would need to start work, is exactly the type of policy that reporting time pay was intended to stop. The appellate court decision overturned a lower court ruling that tossed the suit when they concluded that the on-call scheduling alleged in the case against Tilly’s triggers Wage Order 7’s reporting time pay requirements. They noted that on-call shifts are a burden to employees who cannot take other employment, attend school or make plans socially because they may need to work, but simultaneously may not receive payment for the time they have set aside unless they are ultimately called in to work.

Tilly’s argues that workers “report” for work under Wage Order 7 only if they physically show up for the start of a scheduled shift. The appellate court concluded that the requirement should be read to include those required to check in before physically arriving on the job before granting worker Skylar Ward’s appeal.

The appellate court noted that while policies like Tilly’s call-in requirement probably didn’t exist when Wage Order 7 was adopted by the state, the reporting time requirement covers situations other than those specifically considered by the drafters.

If you have questions about what is covered by Wage Order 7 or if you are required to call in to report before a shift, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP so we can help you protect your rights in the workplace.

Ex-Dairy Worker Fights Back After Company Responds to Wage Suit by Trying to Have Him Deported

Jose Arias, former Northern California dairy worker, recently won a million-dollar settlement against his ex-employer’s attorney. Arias originally filed a lawsuit against the dairy alleging wage theft. According to the plaintiff, Arias, the company’s attorney responded by contacting immigration officials to try to get the ex-dairy worker deported.

The retaliation suit against his former employer, Angelo Dairy of Acampo was already settled when the $1 million settlement was announced in the suit against attorney Anthony Raimondo. The settlement followed a federal court’s decision to reinstate Arias’ case. Representation for the plaintiff see the case as an example showing employers that they can’t game the system by cheating their employees of wages and then responding to complaints with threats to deport them.

The attorney who allegedly made the deportation threat, Raimondo, has 20 years of legal experience representing dairies out of Fresno. He denied retaliating against Arias and claimed that his former insurance company insisted the case be settled. Raimondo insists that he is the only person involved in the case who did not break the law.

Arias, an undocumented immigrant, started work with Angelo Dairy in 1995 as a milker. The dairy was supposed to file documents with federal officials that would verify Arias’ work authorization. Instead the employer used his undocumented status as a weapon to limit Arias’ options and keep him in their employ. In 1997, Arias told a company owner that he had a job offer from another dairy. The owner advised him that he would report the other dairy to immigration authorities if Arias took the offer. Arias stayed in his current position, but sued Angelo Dairy in 2006. He claimed the company’s failure to pay overtime and provide required meal and rest breaks were violations of labor law. In 2011, just prior to going to trial, Arias claims Raimondo, the dairy’s lawyer, contacted immigration agencies to purposefully derail the case.

Arias settled the wage suit and dropped his claims against the dairy farm. He says he did so, in substantial part, to avoid deportation. The court documents state that Raimondo contacted ICE a minimum of five times regarding other employees. He also allegedly confirmed his practice of contacting ICE in a June 2013 email to Legal Services Corp., in which he stated that he had acted in the past to deport workers who were suing his clients. Recent statements from Raimondo describe the events differently, insisting that the idea that he retaliated against Arias is ridiculous.

If you are experiencing retaliation in the workplace or if you need to discuss filing suit against an employer due to employment law violations, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Do After Hours Phone Calls Qualify for Overtime Pay?

The fact that the majority of workers carry a cell phone 24/7means that employers have the ability to reach workers at any time on any day. The problem is that some employers actually expect workers to respond at any time on any day (or night) as well. So, what about that random 1am phone call from the manager on duty? Does that count towards overtime hours?

24/7 access to their employee workforce is going to come at a cost to employers as they will need to pay for the time or risk potential class litigation regarding unpaid wages. Starbucks Corp. and Evolution Fresh (a Starbucks subsidiary) recently settled an overtime suit that delivery drivers brought against the company claiming that they were not compensated for company calls they took outside of their scheduled shifts. Another major corporation, ABM Industries, is facing similar problems. It looks like ABM will probably be settling (to the tune of $5.4M) to resolve claims that they failed to reimburse cleaners for data and cell phone costs. ABM employees claim they were required to use their cell phones for clocking in, clocking out, and other work necessities and job duties.

So, when do employers need to pay workers for after hour calls? What about after-hours emails? How is “compensable time” determined?

Determining compensable time depends on which law is at play: the federal Fair Labor Standards Act or an equivalent state law. Once this is determined, the question becomes whether or not the employees are covered by the law. If the employee is covered by the law, is their work considered “de minimis” or too infrequent or insignificant to require payment?

This type of overtime case depends heavily on the facts and details of the specific case. How the details are presented can be crucial and the court’s decision has been known to fall on both ends of the spectrum. Nearly everyone has a cell phone and this makes it easy to reach an employee with a phone call, text message or email during a break or after they are off work and off the clock. Some employees feel pressured to respond to employer contacts even though they aren’t clocked in – others may be required by company policy or expectations to respond.

If you have questions about why you aren’t paid overtime or if you need to talk about what constitutes off the clock work, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP today.

California Catholic School May Face Lawsuit After Firing Teacher

Kristen Biel, a former teacher at St. James Catholic School in Torrance, needed time off from her job after recently being diagnosed with breast cancer in Spring 2014. She was in need of a double mastectomy, chemotherapy and radiation treatments. Biel requested a leave of absence during the upcoming fall semester from Sister Mary Margaret Kreuper, the school’s principal. Just weeks later, Biel was fired.

Last month, Biel was granted the right to sue the school in federal court for discrimination when an appeals court overturned the lower court decision that she was a “minister” in the eyes of the court and barred from suing a church-operated school. This isn’t the first time St. James School and Sister Mary Margaret Kreuper have faced legal allegations. Kreuper, along with another nun, was accused of stealing from student tuition checks, fees and fundraisers for the school for over a decade. The issue was recently announced by school officials.

Kreuper, 77 years old, and her vice principal, Sister Lana Chang, 67 years old, essentially rerouted hundreds of thousands of dollars into a church bank account that was overlooked by many for years. They then used this overlooked account to pay for personal expenses. Parents were advised of the situation at a meeting in Redondo Beach recently. Parents asked about the situation said that the nuns were open in talking about gambling trips to Las Vegas and Lake Tahoe vacations, but that they claimed Chang had wealthy relatives that paid their expenses.

Auditors working alongside the Archdiocese in Los Angeles have accounted for $500,000 of stolen funds, but the number will most likely continue to grow as the investigation continues. Initially, the archdiocese intended to handle the investigation internally and not press charges, but later they changed course stating that they would be cooperating with police and that they plan to be a complaining party in the criminal case. Criminal complaints have not yet been filed. The police investigation is ongoing. Police are requesting copies of old tuition checks from parents and details regarding any cash donations.

Biel, 53 years old, started working at St. James in March 2013. She was hired as a long-term substitute teacher. By the end of the year, she was hired as the school’s full-time fifth-grade teacher. She received a formal, positive evaluation from Kreuper that praised her “good work” in promoting a safe and caring learning environment. Areas of improvement included in the one official review noted two students were coloring in their books and some of the students had cluttered desks.

When Biel was diagnosed with breast cancer in April 2014, she advised Kreuper she would start treatments within the month. A few weeks later, Kreuper advised Biel she wouldn’t be renewing her contract and claimed it was because it would be unfair for student to accommodate her leave by having two teachers in one year. She also accused Biel of not running a strict classroom even though that complaint was not included in Biel’s one official evaluation.

Biel filed a federal lawsuit against St. James in 2015. She included allegations of discrimination, retaliation, and wrongful termination in violation of the Americans with Disabilities Act.

If you need help because you have been wrongfully terminated from your job or if you are being discriminated against in the workplace, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP today.

The California Supreme Court’s Dynamex Decision Impacts Standards

The California Supreme Court’s decision on Dynamex Operations West, Inc. v. Superior Court of Los Angeles is affecting legal standards determining whether a worker should be legally classified as an employee or an independent contractor. The company in the case, Dynamex, put a test in place as a standard determining classification that made it more difficult for businesses to classify workers as independent contractors.

For example, Lawson v. Grubhub, Inc. was a case heard before U.S. Magistrate Judge Jacqueline Scott Corley. It was a closely watched case out of California federal court. The judge on the case noted in a new order that her decision on the case may have been different if the Dynamex opinion had already been recorded. While Judge Corley declined to vacate her earlier finding, it is likely the order will be reversed upon appeal.

In Lawson v. Grubhub, Inc. the plaintiff, Raef Lawson was a GrubHub driver who claimed he was misclassified as an independent contractor. When GrubHub moved to dismiss the suit in early 2018, the district court found the company did not “control” Lawson’s work – siding with the company. Lawson appealed. After the Dynamex decision, Lawson filed a motion. He sought relief from the judgment on record. Lawson argued that his case would have had a different outcome if the California Supreme Court had adopted a new legal standard for use when determining the classification of workers as employee or independent contractor. The court responded by allowing that a careful consideration of the issues and with the benefit of an oral argument, the motion raises substantial issue, but they declined to definitively rule on vacating the judgment. They court noted that deciding whether or not the Dynamex ruling should apply retroactively is a decision to be made by the U.S. Court of Appeals for the Ninth Circuit.

If you have questions about misclassification or if you need to discuss how you can seek justice when your employer refuses to provide you with overtime pay, please get in touch with one of the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.