Ninth Circuit Ignores Legal Written Policy in Favor of Using Statistical Sampling to Certify Class

September 3, 2014 the U.S. Court of Appeals for the Ninth Circuit upheld a certification of class in Jimenez v. Allstate Ins. Co.: 800 nonexempt insurance claims adjusters claimed that they worked overtime and did not receive payment. This is in spite of the company’s written policy stating that nonexempt employees would be paid for all the hours they work.

The Ninth Circuit based their decision on the discovery that three common questions existed:

1. The existence of an “unofficial” Allstate policy that discouraged employees from reporting overtime.
2. Whether or not employees’ workloads forced them to work overtime (in excess of eight hours in one day or over 40 hours in one week).
3. If Allstate’s timekeeping method resulted in unpaid overtime or underpayment for overtime.

The court discovered that the adjusters weren’t responsible for the preparation of time sheets/clocking in and out. Instead the time cards were set to a default of eight hours each day and 40 hours each week. Supervisors could submit “exceptions” for hours that were worked outside of the default schedule. The Ninth Circuit decided that a common question did exist in relation to the question of whether the timekeeping method resulted in unpaid overtime for adjusters.  

The Ninth Circuit also held that liability for the problem and whether or not the employer should have known its employees were working off the clock could be resolved with statistical sampling. Although, it is important to note that the Ninth Circuit did not specify exactly how the issues could be resolved through statistical sampling.  

This decision could provide a basis for a legal standard, making an employer’s lawful written policy not enough to completely insulate the company from class certification questions. The recent decision is a deviation from previous rulings as in the Supreme Court’s decision in Walmart Stores v. Dukes and Comcast Corp. v. Behrend.

If you have questions regarding class certification or the method of timekeeping used at your place of business, contact the employment law experts at Blumenthal, Nordrehaug & Bhowmik for additional information. 

California Law Prohibits Religious Discrimination in the Workplace

After hearing the many stories from California employees, some are starting to wonder if California’s laws that prohibit religious discrimination in the workplace are enough to get the job done. One example of blatant religious discrimination follows.

A young Muslim woman went through the application process at a beauty supply store. During her interview she did not wear her hijab. After she was hired, she started her first day of work with the traditional hijab, a headscarf covering her hair, in place. She was told by her direct supervisor (in front of her coworkers and customers in the store) to take the hijab off or to go home.

She explained her religious beliefs and that the hijab held significant religious importance to the manager. The hijab is worn as an expression of devotion to God. It’s also a symbol of modesty and privacy. It’s not unique to Islam. After her thorough and careful explanation, she was sent home for not removing the hijab. She is allowed to keep her job, but her hours are cut back and she is asked to work in the back of the store. 

This is just one of many examples of religious discrimination in the workplace. Muslims face a number of difficult situations such as this, most of which are listed in the Council on American-Islamic Relations’ (CAIR) newest report regarding the civil rights of Muslims in California. The California offices of CAIR received 933 complaints in the last year. The Los Angeles branch received 444 complaints (the highest of any of the CAIR California offices).  

A 2012 California law prohibits religious discrimination in the workplace, but in spite of the intention of the law to provide protection, many are still reporting hostile work environments, alleged harassment, retaliation for political/religious beliefs, wrongful termination, etc.

Under California’s Workplace Religious Freedom Act, employees must provide employees with reasonable accommodations to suit religious beliefs and associated observances. The only exception is if doing so would cause “undue hardship.” To discuss the specifics of what constitutes an “undue hardship,” the meaning of “religious observance” and “religious belief” according to California law, etc. contact the employment law experts of southern California at Blumenthal, Nordrehaug & Bhowmik. We can assist you in determining what rights you have and how you can protect yourself from hostile work environments. 

Whistleblower’s $25 Million Lawsuit Against Nike Heads to the Jury

In the course of the more than $25 million lawsuit proceedings against Nike, the jury heard two very different versions of events. Douglas Ossanna is a former Nike electrician, fired in early 2013. He claims that Nike fired him in retaliation after he reported unsafe working conditions for electricians at the approximately 600-acre campus in Washington County. Nike denies the allegations. Nike’s version of events has Ossanna being fired for playing a pickup basketball game on a court in the Bo Jackson Building when the facility was designated as off limits.

The more than $25 million lawsuit consists of $572,000 in economic damages, $1.5 million in non-economic damages and as much as $25 million in punitive damages. During the closing arguments, attorneys for the plaintiff argued simplicity. They claim a simple and clear-cut case of retaliation in the workplace. It was argued that Ossanna had made concerns clear regarding unsafe working conditions to at least six different Nike managers over a period of a few years. Ossanna claims none of his unsafe working conditions reports were ever investigated or resolved by Nike.

On top of being fired, Ossanna’s representation make it clear that he suffered harsh working conditions including excessive amounts of overtime in response to his reporting of problems with workplace safety.

Nike indicated that they did not retaliate against the electrician and that as a supervisor, he had access to every building on the Washington County campus. Nike’s attorney, argued during her closing argument that the decision to terminate Ossanna’s employment was consistent with other recent terminations in the company including a Nike employee was terminated for lying in order to receive a $20 gift card.

If you or someone you know is a victim of retaliation in the workplace, contact the employment law experts at Blumenthal, Nordrehaug & Bhowmik to find out how you get legal reparations for the damage to your career, your finances and your life.