Walmart Class Action Suit: Cashiers Allege Retail Giant Knows Seating is Feasible

In early January 2018, the 80,000 member class of Walmart cashiers alleging that the big box store was in violation of state law due to the failure to provide them with seating on the job made the notable claim that when the company provided seats to cashiers with disabilities, they conceded that seating for cashiers was feasible. This claim that the company has already (through their actions towards cashiers with disabilities) acknowledged that the work of a Walmart cashier permits seating was made in California federal court in support of allegations in their suit.

The class argued that in light of last year’s California Supreme Court ruling that companies are required to provide seats if the work can be done sitting down, the big box store’s obvious acknowledgement that the work can be completed while sitting leaves them with no excuse for not allowing all their cashiers to sit.

When determining how best to accommodate cashiers with disabilities, both Walmart’s safety and compliance department and Walmart’s own Americans with Disabilities Act experts tested and later approved ergonomic reaches and ranges of motion relevant to the work of a seated cashier stationed in the ADA check-out lanes. Walmart chose the specific seat to be offered to disabled cashiers themselves in order to ensure that the situation would be acceptable for both the company’s findings regarding required work and situational necessities.

The action was originally launched by Lead Plaintiff and former cashier, Kathy Williamson, in the Superior Court for Alameda County in summer of 2009. It was moved to federal court at a later date. U.S. District Judge Edward J. Davila granted the motion to certify class in 2012, finding that there was a common nature of work amongst the California Walmart cashiers. He also concluded that a trier of common facts could pinpoint exactly what designated tasks could be performed while cashiers were seated.

The Defendant appealed the ruling to the Ninth Circuit. The appellate court affirmed the decision in June. This was just two months after the state Supreme Court defined the state’s seating rule in the Kilby v. CVS Pharmacy Inc. decision. In this decision, the court determined that employees must be provided with seats if the work they are completing can be done in a seated position even if they aren’t performing the same task all day long. The class of Walmart cashiers argued that the Kilby decision controlled the case and that Walmart has shown on numerous occasions that being seated would not prevent their cashiers from performing their duties (i.e. Walmart productivity study, and study on negative perception in 2007). The case is scheduled to go to trial in fall 2018.

If you have questions about class action lawsuits or if you feel unfairly treated in the workplace, please contact one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP to discuss potential violations.

ERISA Deal’s $42M to St. Joseph’s Nurses Gets Initial OK

In recent news, the St. Joseph’s Nurses received preliminary court approval for a $42 million settlement of claims. The New Jersey St. Joseph’s Healthcare System nurses won the settlement regarding claims that the system underfunded the pension plan. The deal was reached after the court stated that church-affiliated entities are exempt from ERISA (Employee Retirement Income Security Act).

The initial approval was offered by U.S. District Judge John Michael Vasquez. The nurses indicate that the settlement would reduce the plan’s alleged underfunding by approximately 50%. The final fairness hearing was scheduled for March of 2018.

The deal was proposed in August by the St. Joseph’s nurses following a Supreme Court ruling that extended ERISA’s exemption for religious entities, which effectively negated one of the key arguments for the plaintiffs in the case. The nurses advised the court that St. Joseph’s already put an amount slightly more than the settlement amount into the plan. Under the settlement agreement, the hospital would also be required to ensure all benefits are paid out for the next seven years (at a minimum). 

It is meant to provide certain and immediate relief to the class through removing the uncertainty associated with continued litigation and improving the plan participants’ retirement security.

The suit is the result of a consolidation of two proposed class actions, both filed in May of 2016. One filed on behalf of Donna Garbaccio, a nurse out of the Paterson, New Jersey St. Joseph’s Hospital and Medical Center from 1978 through 1998. This suit claimed that the pension plan was underfunded by more than $180 million. The second was filed on behalf of Mary Lynne Barker, nurse for St. Joseph’s from 1968 through 2003, Anne Marie Dalio, nurse for St. Joseph’s from 1984-1994, and Dorothy Flar, nurse for St. Joseph’s from 1990 through 1995. This suit claimed the plan was underfunded by a more substantial $210 million.

Plaintiffs alleged that St. Joseph’s violated ERISA law by denying protections to participants and beneficiaries of the pension plan through incorrect claims that the plan was exempt under ERISA due to qualifying as a “church plan.” This was one of the plaintiffs’ main arguments – that a church plan must be established by a church to qualify for the ERISA exemption. 

In the Supreme Court’s June 5th opinion, ERISA’s religious exemption provision was extended to plans that are maintained by church affiliates – even when an actual church did not actually establish the plan. This decision overturned federal circuit court rulings that the exemption would only apply in cases where the church itself actually established the benefit plan.

If you have questions about ERISA violations or if you need to discuss the intricacies of California employment law, please get in touch with one of the experienced California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

ERISA Suit Against Ascension Health Settled at $29.5M

In early September 2017, Ascension Health agreed to a $29.5 million dollar settlement deal to settle claims in putative class lawsuits based on allegations that the faith-based health care company denied ERISA (Employee Retirement Income Security Act) protections to plan participants and beneficiaries.

The judge granted preliminary approval of the proposed class action settlement in consolidated putative class action suits when participants and beneficiaries of the Wheaton Franciscan Retirement Plan requested it in September. Ascension Health, a Missouri based organization, acquired the Wheaton Franciscan Services’ health care subsidiaries in the southeastern region of the Wisconsin state in spring of 2016.

According to plaintiff statements in court documents, the company guaranteed $29.5 million payment of benefits to members of the proposed settlement class in the event that trust assets attributable to the plan were insufficient to cover benefits.

In the original approval bid, plaintiffs made it clear that the obligation held by Ascension Health under the plan benefit guarantee would continue so long as the plan was sponsored by any of the releases. It was further noted that if plan assets and liabilities covering the settlement class members was transferred to a successor due to any type of corporate transaction, Ascension Health should ensure the successor honored the commitment/guarantee.

Plaintiffs filed suit initially in April 2016. This was followed by another putative class complaint in June 2016. The two cases were consolidated in January 2017. Allegations stated that Wheaton and Ascension denied ERISA protections to plan participants while claiming that the plan qualified as an ERISA-exempt “church plan.”

Plaintiffs alleged that the Defendants underfunded the plan by over $134.5 million. Allegations also stated that plan participants were improperly required to finish 5 years of service prior to becoming fully vested in their accrued benefits. In addition, plaintiffs state that the organization violated ERISA when they decreased accrued benefits by adding several amendments and filing to provide class members with required reports and/or statements.

The consolidated action was stayed by the court, pending the outcome of Advocate Health Care Network v. Stapleton in the U.S. Supreme Court. In June 2017, the opinion was issued stating that pension plans do not have to be established by churches in order to qualify as ERISA-exempt church plans.

Once this opinion was issued, the parties reached an agreement to settle the case.

If you have questions about ERISA or your rights in regards to the retirement plans provided by your employer, please get in touch with one of the experienced employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

Colgate Retirees Alleging Benefit Denial Receive Class Certification

A class of former Colgate-Palmolive Co. brought denial of benefits claims in an ERISA action. Their suit was filed in June 2016 following an earlier ERISA case that included allegations that Colgate miscalculated retirement benefits. The June 2016 suit resulted in a $45.9 million settlement.

In July 2017, a New York federal judge approved class certification. The certification of the class of former workers essentially shut down the company’s arguments stating that a former employee is not an adequate representative for a class that is seeking resolution on an additional benefits case.

Allegedly, Colgate miscalculated pension benefits for retirees under their “residual annuity amendment” the standard retirement plan/policy. The amendment was generated to correct an error that failed to provide beneficiaries with specific benefits when lump sum payments were taken out. The complaint alleges that Colgate didn’t address those payments until it was included in a previous Employee Retirement Income Security Act action.

The judge’s 15-page decision stated that the plaintiffs met all the requirements for certification (in accordance with Rule 23(a)). Colgate’s challenge to the putative class was based on typicality and adequacy requirements. No arguments were made regarding numerosity or commonality. Colgate specifically claims that plaintiff Rebecca McCutcheon is not an adequate representative because she defers to legal counsel. The judge did not find the argument persuasive enough due to the highly technical nature of the case at hand. McCutcheon, who is not a lawyer, would obviously have difficulty providing answers to questions about claims in the case. She exhibited a general understanding of the case and a general desire to be a “watchdog” for the proposed class in seeking corrections to calculations. The judge felt this was sufficient in fulfilling the adequacy requirements.

Colgate also stated that McCutcheon was atypical of the class and that claims being made were barred by the 180-day contractual limitations period as defined in the retirement plan. The judge disagreed. He found that the limitations period was unenforceable due to the omission from a denial latter Colgate issued in 2014 in reference to an administrative claim for benefits and the letter’s explicit statement that she had a year to file suit regarding the matter. As the judge found that the limitations period does not apply in regard to McCutcheon’s claim, the argument does not currently define McCutcheon as atypical.

The judge granted class certification and appointed McCutcheon class representative as well as naming counsel. The proposed class includes approximately 1,200 members and applies to specific subcategories of retirees that received lump sum payments from their retirement plan and who are still due additional benefits from the company.

According to the suit, Colgate agreed to provide a residual annuity benefit in 2005 that would provide a residual annuity benefit to workers for close to a decade. When the company started to pay the benefit out, they distributed it to some plan participants and not others. They also failed to provide the benefit to certain plan participants (like McCutcheon) who had already received lump sum payments of their benefits – even when they requested payment.

If you need to discuss alleged retirement benefit denial or if you are due retirement benefits you are not receiving, please get in touch with one of the experienced California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

Tesla, Inc. Faces Racial Discrimination Suit Plus Retaliation Allegations

A 44-year old African American man out of Oakland, California, DeWitt Lambert, claims he experienced harassment and discrimination while he was employed as an assembly line worker in a Tesla factory in Fremont, California. The original suit was based on racial discrimination as well as a long list of claims of California state labor law violations, but more recently, the plaintiff added an additional charge to the allegations: retaliation.

Lambert claims that management at Tesla ignored his complaints while allowing co-workers to taunt him at work with the “N-word” as well as other obvious racial slurs. Lambert also alleges that Tesla put him on administrative leave in March of 2017. This occurred right after the media published news that he filed a lawsuit.

In addition to the original problem, Lambert’s attorney has noted that Tesla is not providing him with sufficient payment for en employee placed on administrative leave. This after they announced publicly that they were placing on such. Lambert’s attorney noted that he is actually only receiving approximately ¼ of the amount he was receiving prior to filing the California lawsuit and being placed on administrative leave by the company. Typically, an employee on administrative leave receives the same pay that they received while on the job. This drastic “pay cut” led to the additional charge of retaliation.

An electrician by trade, Lambert moved to California in 2012 from his previous home in Alabama. When he landed the job at Tesla’s Fremont, California plant in April 2016, it was his dream job. He worked on the Tesla S model. According to court documents, harassing behavior became routine almost immediately. The harassment came from four male colleagues, all in their 20s. The harassing behavior included: filling Lambert’s pockets with nuts and screws, repeatedly using the “N-word,” inappropriate comments about Lambert’s penis, repeated theft of his phone with video messages left behind upon return, threats to his family, and even a physical assault during which one of the men placed a drill gun in Lambert’s buttocks while the other men watched.

A transcript of a recording made in October 2015 of the harassing behavior was included in the state of claim. The recording was made on Lambert’s iPhone and the following was pulled from the recording, “Nigger, we take your ass home, nigger. Shred you up in pieces, nigger. Cut you up, nigger. Send your ass so everyone in your family so everybody can have a piece of you, nigger. Straight up, nigger. We get down like that, nigger.”

Lambert went on record in a press release published in March of 2017 saying that when he started work at Tesla he was the “happiest” he had ever been. This feeling was followed by experiencing discrimination worse than any he had been exposed to while growing up in Alabama. He stated that the behavior he experienced on the job left him scared for his safety when it was time to leave the plant and head home. He requested help from management at the Tesla plant, but none was offered.

If you fear workplace retaliation or if you are experiencing a negative workplace environment, harassment or discrimination in the workplace, please get in touch with an experienced California employment law attorney at Blumenthal, Nordrehaug & Bhowmik.