Archive for the ‘worker’s rights’ Category
Sunday, August 30th, 2015
In a blog post on Wednesday, Andi Owen, global president for Banana Republic at Gap Inc., announced that the company will end the practice of on-call scheduling and commit to giving employees at least 10 days advance notice of their schedules.
All five of its brands will phase out on-call scheduling, in which employees are required to be available to work on a given day but not guaranteed that they will actually be asked to come in, by the end of September. They will also all provide workers with at least 10 to 14 days notice of when they’ll be working by early 2016.
The company says the changes come from an evaluation it’s conducted over the last year to improve its scheduling practices along with a pilot it launched in July of last year with the help of Professor Joan Williams of UC Hastings’ College of Worklife Law. But it also comes after New York Attorney General Eric Schneiderman began an investigation into the scheduling practices of 13 large retailers and whether they violated a New York state law and sent them all a letter. The investigation had already produced results: earlier this month, Abercrombie & Fitch announced it would end on-call scheduling in New York stores by the end of the year. Those employees will also get their schedules at least a week in advance. Victoria’s Secret, which also received a letter from Schneiderman’s office, has also ended on-call shifts.
Other brands received the letter but haven’t made changes yet, including Ann Inc. (owner of Ann Taylor), Burlington Stores, Crocs, J.C. Penney, J. Crew, Sears, Target, TJX (owner of TJ Maxx and Marshall’s), Urban Outfitters, and Williams-Sonoma.
Starbucks’s scheduling practices also came under fire in a New York Times story last year, after which the company took quick action to end the practice of “clopening,” or shifts where employees close stores late at night and then have to come back in a few hours later to open them for the next day, and post schedules at least a week in advance.
But overall, employees often have to deal with erratic and difficult schedules. At least 17 percent of the American workforce has an irregular schedule, including on-call shifts, split shifts (two different shifts in one day), or rotating ones, although that is likely an undercount. Nearly half of part-time workers and just under 40 percent of full-time workers don’t find out their schedules until a week ahead or less. It’s concentrated in retail, where erratic schedules impact 27 percent of the workforce. One survey of retail workers in New York City found that 40 percent didn’t have a set minimum of hours they worked week to week and a quarter had on-call shifts.
Some lawmakers have looked at ways to address these problems. Earlier this year, Democratic Sens. Elizabeth Warren (MA), Patty Murray (WA), and Chris Murphy (CT) with Reps. Rosa DeLauro (CT) and Bobby Scott (VA) re-introduced the Schedules that Work Act, which requires at least two weeks’ notice of schedules and pay for workers who get sent home before the end of their shifts or are on call but not asked to work. In San Francisco, legislation actually passed to require retail chains to give workers at least two weeks’ notice of schedules and pay employees for on call shifts that get canceled. Similar legislation has been proposed in Minneapolis and Washington, D.C.
Gap also announced that it was raising its minimum pay to at least $10 an hour early last year, a move that has since been followed by a number of large retailers.
This blog originally appeared at ThinkProgress.org on August 27, 2015. Reprinted with permission.
About the Author: Bryce Covert is the Economic Policy Editor for ThinkProgress. She was previously editor of the Roosevelt Institute’s Next New Deal blog and a senior communications officer. She is also a contributor for The Nation and was previously a contributor for ForbesWoman. Her writing has appeared on The New York Times, The New York Daily News, The Nation, The Atlantic, The American Prospect, and others. She is also a board member of WAM!NYC, the New York Chapter of Women, Action & the Media.
Tuesday, July 21st, 2015
The New Mexico Court of Appeals ruled in June that excluding field and ranch workers from workers’ comp protection is unconstitutional. It was the second victory for New Mexico’s farmworkers in less than a year—and that’s big news in a low-wage sector made up primarily of immigrant workers, where victories tend to be few and far between.
The first victory came last August when farmworkers finally started getting paid the correct minimum wage. Farmworkers were routinely, and incorrectly, paid the federal minimum when they were entitled to the New Mexican minimum wage, which is 25 cents per hour higher. It only amounts to $8 or $10 a week, but it is significant for these workers, who are among the poorest in the United States.
And now, after six years of legal battles, the state Court of Appeals has upheld a District Court ruling that New Mexico’s farmworkers are not to be excluded from workers’ comp protection.
Farm work is among the most dangerous jobs in the United States, consistently ranking in the top 10 for injuries and death. The Center for Disease Control and Prevention has reported that 167 agricultural workers are injured every day. Despite this, only 12 states require full workers’ comp for farmworkers (13 now, including New Mexico); it’s optional in 16 states and required but limited in 21 others. Until the Court of Appeals’ decision, workers’ comp wasn’t required for New Mexico’s field workers or for ranch employees who worked directly with animals. That meant that on a dairy, for example, truck drivers and bookkeepers were covered, but milkers and workers moving the cows weren’t.
As In These Times reported in December 2014, on-the-job injuries are the rule, not the exception, in New Meixco’s dairy industry, and the lack of workers’ comp left some workers in dire economic straits:
Working with large animals poses a real risk of injury. In 2012, attorney Tess Wilkes was part of a team at the New Mexico Center on Law and Poverty (NMCLP) that interviewed about 60 workers from various dairies in the state. Almost 80 percent of the workers said they had never received any safety training.
Most of the cows are docile, but not all. “The younger ones are dangerous,” says Antonio Jiménez, who worked in a dairy outside of Roswell during high school. “They don’t know how to be milked and [they] kick. Sometimes the ones that have just given birth [are dangerous], too.” The NMCLP survey found that 53 percent of the workers interviewed had been injured on the job, often more than once, and sometimes seriously.
In March, Matías Soto was working as a milker at a dairy in southeastern New Mexico. Somehow, a bull had gotten mixed in with the cows and stuck in one of the milking parlor gates. As Soto was trying to free the bull, he says, “It lowered its head and attacked me, lifting me 6 or 7 feet in the air. I hit my head on the concrete floor.” His skull fractured. But, he says, he wasn’t taken to the ER in Artesia, about 40 miles away, for three hours. He then had to be airlifted to a hospital capable of handling his injury. The cost of the helicopter alone was more than $60,000, and Soto’s hospital bills were in “the tens of thousands of dollars,” says María Martínez Sánchez, a former attorney at the NMCLP who worked with Soto. And the dairy had no workers’ compensation insurance.
Its medical insurance covered Soto’s medical bills, but not all of the helicopter costs. Instead, says Martínez Sánchez, Soto went into debt, borrowing from friends and relatives, although he eventually received a small amount of money in a settlement with the dairy.
In 2009 NMCLP filed suit challenging the exclusion on behalf of three injured workers who had been denied workers’ comp based solely on the exclusion. Attorneys from the organization argued that excluding farm and ranch workers violated the state constitution’s equal protection clause.
In 2011, 2nd District Court Judge Valerie Huling ruled that the exclusion is, in fact, unconstitutional. The New Mexico Workers’ Comp Administration (WCA) appealed that decision, stating that the District Court had overstepped its jurisdiction . The WCA lost that appeal, and the three workers in the lawsuit had their cases heard and were awarded workers’ comp benefits. But the WCA argued that the District Court ruling applied only to those three workers. Employers took that as a cue to continue routinely denying coverage to all other farmworkers.
In February of this year, NMCLP attorney Tim Davis challenged that interpretation in a suit on behalf of two injured workers who had been denied workers’ comp benefits. Noe Rodriguez suffered a head injury when he was attacked by a bull at the dairy farm at which he worked and Maria Angélica Aguierre broke her arm when she slipped and fell in a chile field. The New Mexico Court of Appeals unanimously upheld the District Court’s ruling that the exclusion was unconstitutional . The court stated, “Our review of the history of workers’ compensation statutes back to 1929 has not revealed an articulable purpose for the exclusion” and that the exclusion was “without purpose or reason and leads to absurd results.”
The ruling doesn’t mean that Rodriquez and Aguierre will automatically receive workers’ comp benefits, bu it means that their claims, and the claims of other injured farmworkers, can now be heard.
Maria Martínez Sánchez, one of the lead attorneys on the 2009 case, says she is “very happy” with the appellate opinion. “This ruling finally tells agricultural employers that they … must care for their workers in the same way all other employers in New Mexico are required to do,” she says.
While advocates are heartened by the Court of Appeals ruling, they’re also realistic. Farmworkers in New Mexico and across the United States continue to work under harsh conditions for little pay. The majority of states don’t offer farmworkers full workers’ comp benefits; most deny them overtime pay and the right to collective bargaining. Wage theft is rampant, as is sexual harassment and abuse. As Martínez Sánchez says, “There’s still much work to be done.”
This blog was originally posted on In These Times on July 20, 2015. Reprinted with permission.
About the Author: The author’s name is Joseph Sorrentino. Joseph Sorrentino is a writer and photographer. He has been documenting the lives of agricultural workers on both sides of the U.S./Mexico border for 12 years.
Tuesday, August 27th, 2013
Today, after a much-criticized delay on issuing a rule to limit workers’ exposure to cancer-causing silica dust, the Obama administration put forward a proposed rule for public consideration. The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) estimates that once the rule is in effect, it could save 700 lives a year and prevent nearly 1,600 cases of silicosis annually.
In an OSHA press release, Dr. David Michaels, assistant secretary of labor for occupational safety and health, commented, “Exposure to silica can be deadly, and limiting that exposure is essential. Every year, exposed workers not only lose their ability to work, but also to breathe. This proposal is expected to prevent thousands of deaths from silicosis—an incurable and progressive disease—as well as lung cancer, other respiratory diseases and kidney disease. We’re looking forward to public comment on the proposal.”
Workplace safety advocates applauded the decision. In a press release issued by the non-profit National Council for Occupational Safety and Health, executive director Tom O’Conner noted that workers who are most exposed to silica tend to be those least able to advocate for themselves.
“Low-wage immigrant workers and temporary workers are disproportionally represented in the industries with silica exposure—and are the most vulnerable to retaliation should they report potential hazards, injuries or illnesses,” O’Conner said. “This new rule will help to pull them out of the shadows and make them safer at work. Everyone, regardless of immigration status, deserves a safe workplace.”
However, some in organized labor say the fight to enact the rule has just begun, as it will have to undergo a public comment period before it is issued. In his response to the news of the rule, AFL-CIO President Richard Trumka cautioned:
But this rule is only a proposal–workers exposed to silica dust will only be protected when a final rule is issued. Some industry groups are certain to attack the rule and try to stop it in its tracks. The AFL-CIO will do everything we can to see that does not happen. We urge the Obama administration to continue moving forward with the public rule-making process without delay. The final silica rule should be issued as fast as humanly possible, to protect the health and lives of American workers.
This article originally appeared in Working in These Times on August 23, 2013. Reprinted with permission.
About the Author: Mike Elk is an In These Times Staff Writer and a regular contributor to the labor blog Working In These Times.
Wednesday, August 7th, 2013
Information about the American Legislative Exchange Council (ALEC) working in secret to push state-level policy to more extreme levels is coming to light more and more and America’s working families are starting to stand up to the group’s corporate-driven agenda. While ALEC’s agenda is all over the policy map, the organization has a particular focus on pushing new laws that attack working families and undercut the rights of workers, both in the workplace and in retirement. Here are eight of the most dangerous and most widespread ways that ALEC is targeting workers and their right to a voice on the job.
8. Voter ID Act: Laws directly based on or similar to ALEC’s Voter ID Act have been introduced in recent years in nearly every state, with more than a dozen states passing or strengthening such laws in the past three years. These laws disproportionately affect working families, senior citizens, people of color and residents of rural areas and help elect legislators who vote against the rights and needs of workers.
7. Paycheck Protection Bills: ALEC has at least four different versions of this legislation, each one more extreme than the last, that were introduced 20 times in various states in 2013. These bills range from requiring that each employee sign an annual form authorizing that their union dues be allowed to be used for political purposes to preventing payroll deductions from being used for union dues. These bills provide no additional rights to workers and do nothing more than weaken the ability of workers to collectively bargain by depriving unions of the funds they need to fight on behalf of their members.
6. Direct Union Assaults: Through model legislation such as the Election Accountability for Municipal Employee Union Representatives Act and the De-certification Elections Act, introduced in Idaho and Arizona, respectively, ALEC is seeking to make public employees vote over and over again to retain their union status, giving ALEC and other groups the opportunity to flood workers with anti-union propaganda.
5. Public Employees’ Portable Retirement Option Act: Through this and similar bills, 10 states have attempted to weaken or eliminate defined-benefit pension plans and replace them with defined-contribution plans, which make retirees depend on the market for how much money they have for retirement and health care.
4. Council on Efficient Government Act: As Orwellian a name as any in the ALEC arsenal, this legislation does nothing but use government money to create a commission to figure out ways to privatize government services. In other words, yet another example of ALEC attempting to get taxpayer money into the hands of private corporations without any accountability or taxpayer recourse.
3. “Right to Work” Act: This incredibly misleadingly titled legislation gives no one any new rights and does nothing but prevent employees from paying for the benefits that unions earn on their behalf. So-called “right to work” for less states end up paying their workers a lot less than states that don’t have such laws. In 2013, 15 states introduced this legislation.
2. Parent Trigger Act: These laws give parents the option, once a majority of parents sign a petition, to change a public school into a charter school, give students vouchers or close the school. Seven states have passed parent trigger laws similar to the ALEC bill. Parent Trigger laws force parents to make a bad choice—either stick with a poorly performing school, or take drastic actions that are likely to make things worse, do little to help students and are a boon for corporate groups that run private schools. Meanwhile one of the best tools for helping working families reach the middle class—public education—gets less and less funding.
1. Wage Protections: In 14 states, ALEC model legislation attacking wage protections were introduced. The bills sought to weaken or eliminate laws that require prevailing wages, living wages or minimum wages. Big corporations heavily support these efforts, which would only serve to lower wages for workers.
On Thursday, Aug. 8, working families and other opponents of the ALEC agenda will be rallying at the conservative group’s convention in Chicago. Those who are in the area can RSVP online.
This article originally appeared on AFL-CIO NOW blog on August 7, 2013. Reprinted with permission.
About the Author: Kenneth Quinnell is a long-time blogger, campaign staffer and political activist whose writings have appeared on AFL-CIO, Daily Kos, Alternet, the Guardian Online, Media Matters for America, Think Progress, Campaign for America’s Future and elsewhere.
Monday, July 29th, 2013
Imagine the pilot episode of a revival of the 1970’s situation comedy “The Mary Tyler Moore Show.” It is July 2013. After a painful break-up with her fiancé, 30-year-old Mary Richards relocates to Des Moines, Iowa, to start a new life.
Mary interviews for a secretarial position at a local television station with Executive Producer Lou Grant. Lou is an overweight, balding, married father of three grown daughters. Lou offers Mary an associate producer position, reporting directly to him. Lou’s wife Edie is threatened by the presence of an attractive, young woman in the workplace. Edie demands that Mary be fired immediately. Lou admits that he is attracted to Mary, even though their workplace relationship has been strictly professional. Lou fires Mary. He replaces her with Rhoda. In Iowa in 2013, Mary has no legal recourse.
This month, the Iowa Supreme Court reaffirmed its controversial December 2012 decision holding that a fifty-something Fort Dodge, Iowa dentist acted legally when he fired his 32-year-old dental assistant for being too attractive. Although the dental assistant had shown no interest in her married boss, both the dentist and his wife feared that he would be powerless to resist her charms. In a decision insulting to both major genders, the Court reasoned that the firing did not constitute gender discrimination because it was not “because of sex.” Instead, the Court reasoned, it was motivated by the dentist’s feelings of attraction for a specific person (I suppose you could call it “because of sexy”).
The latest version of the case, Melissa Nelson v. James H. Knight, DDS, P.C. can be read in full here.
Here is the official photo of the Justices of the Iowa Supreme Court. See if you can spot what they all have in common.
Melissa Nelson was only 20 when she was hired by Dr. James H. Knight as a dental assistant. For ten years, she was an exemplary employee. She regarded her boss as a “father figure.” Dr. Knight, on the other hand, found himself growing increasingly attracted to his young assistant. In 2009, Dr. Knight’s wife insisted that her husband’s unilateral attraction to Ms. Nelson was a threat to their marriage. Dr. Knight and his wife consulted with the senior pastor of their church, who blessed the decision to terminate Ms. Nelson. Ms. Nelson sued for gender discrimination. The trial court and the Supreme Court of the State of Iowa agreed with the Knights — and their pastor–and held that firing Ms. Nelson for being a potential threat to Dr. Knight’s marriage did not constitute illegal gender discrimination.
The Court’s original decision in late 2012 was greeted with outrage and ridicule. In June 2013, the court withdrew its opinion and agreed to reconsider the matter, giving rise to the hope that they had seen the light and would permit the case to go to trial. Those hopes were dashed when the Court reaffirmed its position that there is a difference between an employment decision based on personal feelings towards an individual and a decision based on gender itself. “In the former case, the decision is driven entirely by individual feelings and emotions regarding a specific person,” stated the opinion’s author, Justice Edward M. Mansfield (he’s the one in the back row, far left). “Such a decision is not gender-based, nor is it based on factors that might be a proxy for gender.”
Wait a minute, argued Ms. Nelson’s attorneys and reasonable people everywhere. Of course it was “because of sex.” If she were not female, she wouldn’t be in danger of involuntarily attracting the unwanted attention of her heterosexual male boss. If it is illegal to sexually harass an employee, why should an employer escape liability for firing an employee out of fear that he was just about to harass her. Under this logic, even an employee who spurns the sexual advances of her supervisor is vulnerable to dismissal under a fabricated “my wife made me fire you to save our marriage” defense.
But back to Mary Richards. In the eponymous spin-off series “Lou Grant,” Lou found a job as a newspaper editor for the fictitious Los Angeles Tribune. What if he re-hired Mary? Could Edie get her fired again in California? Not likely.
The Iowa Supreme Court was interpreting Iowa law and federal law from the United States Court of Appeals for the Eighth Circuit. The Court relied heavily on 8th Circuit precedent holding that sexual favoritism is, in essence, a private matter between the parties that doesn’t warrant regulation as gender discrimination. California state law takes a broader view of the impact of sexual favoritism on the workplace environment. Our Supreme Court has recognized that sexual favoritism is not merely a private matter. Instead, favoritism can create an atmosphere demeaning to women, giving rise to claims of a hostile work environment by both men and women. California courts are, therefore, likely to view conduct such as Dr. Knight’s in the broader context, and find a termination under similar circumstances in California to be discriminatory.
And besides. Why would Lou even listen to Edie? They got divorced after the third season of “The Mary Tyler Moore Show,” and Edie promptly remarried. You can watch the wedding here.
Article originally appeared on CELA Voice on July 25, 2013. Reprinted with permission.
About the Author: Curt Surls has been practicing in Los Angeles, specializing in employment law, for almost 25 years. Mr. Surls is a Fellow of the American Bar Foundation and has worked for the State of California as counsel to the Director of the Department of Industrial Relations. CELA VOICE is a project of the California Employment Lawyers Association. Our goal is nothing short of changing the discussion about issues of importance to California employees. Our method is simple. We will amplify the voice of worker advocates on issues that are vital to our economy, our way of life, even our health. The contributors to the CELA VOICE bring a unique perspective to understanding what is working and, too often, what isn’t working in California workplaces.
Friday, July 12th, 2013
U.S. Department of Justice, Civil Rights Division has an office dedicated to ensuring that employers are not discriminating against work-authorized individuals based on their national origin or immigration status. It is unlawful to fire or refuse to hire certain workers because of where they are from or because they are not U.S. citizens. The law also protects workers where employers discriminate against them by asking for too many work-authorization (I-9) documents or by rejecting valid documents, and where employers discriminate during the E-Verify process.
If you think you or someone you know has been discriminated against in hiring or firing based on national origin or citizenship status, call the Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) at the Civil Rights Division of the U.S. Department of Justice on its Worker Hotline at 1-800-255-7688, 9am-5pm, E.S.T. (TTY for the hearing impaired: 1-800-237-2515). You do not have to provide your name, and telephone interpreters are available in many languages as needed. It is unlawful to intimidate, threaten, or retaliate against anyone for contacting the Hotline, assisting in any way in an investigation, or filing a charge with OSC. For more information, to obtain outreach materials or a charge form, or to learn about OSC’s new worker webinars call the Hotline or visit www.justice.gov/crt/about/osc.
This article was written by OSC as part of a worker outreach program. Reprinted with permission.
About the Author: OSC is the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) and enforces the anti-discrimination provision (§ 274B) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b.
Monday, May 20th, 2013
If you don’t already know, the Affordable Care Act (“ACA”), a/k/a Obama Care, does not take effect all at once. (I say “if you don’t already know,” because a recent poll shows that 42% of Americans are unaware that Obama Care is currently the law of the land).
Title I of the Act, which is considered one of the most controversial parts of the Act, does not take effect until next year. Once it takes effect, employers may not make employment decisions based on an employee’s health care decisions. Employers will, of course, make decisions that impact employees negatively, because the ACA will increase employers’ costs and responsibilities associated with health care. This is why employees need to be aware of their new rights.
You have probably heard about the many employers who have started cutting employee hours to evade having to comply with Obama Care. If you’re one of them, you’re out of luck. The law doesn’t protect you yet.
Starting on January 1, 2014, an employer may not retaliate against you based upon your health care selections. Specifically, an employer cannot terminate, demote, discipline, intimidate, threaten, deny benefits or promotion, reduce pay or hours, blacklist, or fail to hire an employee based on the fact that the employee:
- Provided information relating to any violation of Title I of the ACA, or any act that he or she reasonably believed to be a violation of Title I of the ACA to the employer, the Federal Government, or the attorney general of a state;
- Testified, assisted, or participated in a proceeding concerning a violation of Title I of the ACA, or is about to do so;
- Objected to or refused to participate in any activity that he or she reasonably believed to be in violation of Title I of the ACA; or
- Received a credit under section 36B of the Internal Revenue Code of 1986 or a cost sharing reduction under section 1402 of the ACA.
If an employer retaliates against you for engaging in any of these activities after January 1, 2014, you may file a complaint with the Occupational Health and Safety Administration(“OSHA”). OSHA has a broad range of powers to help employees combat the “evildoer” employers, including the powers of investigation, enforcement, negotiation, settlement, and the ability to award damages. The employee’s first, and critical step, is to file a claim with OSHA within 180 days from the date of retaliation.
Unlike most employment discrimination cases, the standard for proving retaliation in these cases is much more employee-friendly. You only need to demonstrate you had a reasonable belief that the employer was retaliating against you. Further, you will only need to provide evidence that your health care decision was a factor in the retaliation, not the only factor in retaliation. Hopefully, employers will have a much more difficult time defending against these types of discrimination cases. With any luck, this will deter them from violating the ACA in the first place.
This article was originally printed on Screw You Guys, I’m Going Home on May 10, 2013. Reprinted with permission.
About the Author: Ryan Price is an Associate Attorney at Donna M. Ballman, P.A., Employment Advocacy Attorneys.
Wednesday, May 15th, 2013
In most workplaces, it’s common to see a poster somewhere public – like a shared lunchroom – notifying employees of their workplace rights on issues such as equal opportunity and health and safety. Most workplaces don’t, however, have posters notifying employees of their rights (e.g. to form a union) under the National Labor Relations Act. And after a D.C. Circuit Court ruling this week, this seems depressingly unlikely to change anytime soon.
The NLRB tried to fix this in 2011 with a rule requiring employers to post an informational notice in the workplace. Not surprisingly, the U.S. Chamber of Commerce of other corporate-backed groups challenged the rule and delayed its implementation.
On Tuesday, the D.C. Circuit Court (known for its pro-business bias) put the final nail in the coffin and struck down the rule.
This decision is undoubtedly bad for workers.
For a sliver of optimism about the future of the labor movement, check out Harold Myerson’s May 8th op-ed in the Washington Post.
This article was originally posted on SEIU on May 10, 2013. Reprinted with Permission.
Author: SEIU Communications
Friday, December 21st, 2012
In the aftermath of the California Supreme Court’s landmark decision in Brinker Restaurant Corp. v. Superior Court(2012) 53 Cal.4th 1004 (Brinker), employers and non-exempt employees are still hashing out the implications of the clarified meal and rest period requirements. In April, Bryan Schwartz Law discussed the implications of that case on this blog, which can be found here: California Supreme Court’s Long-Awaited Brinker Decision.
Last week, in Bradley v. Networkers International, LLC (December 12, 2012) —Cal. Rptr.3d —, 2012 WL 6182473, the California Court of Appeal in San Diego addressed a common problem in meal and rest period cases: where an employer has no compliant meal and rest period policies that are distributed to employees. This case makes clear that a lack of a meal or rest period policy can provide sufficient commonality for class certification, which is a significant victory for plaintiffs.
While the Brinker case was pending, a number of cases appealed to the Supreme Court were granted review and held, pending the decision in Brinker. Among the cases relegated to judicial limbo was Bradley v. Networkers International, Inc. (Feb. 5, 2009, D052365). In Bradley, three plaintiffs filed a class action complaint against Networkers International, LLC, alleging violations of California’s wage and hour laws including nonpayment of overtime and failure to provide rest breaks and meal periods. The plaintiffs moved to certify the class, which requires that they “demonstrate the existence of an ascertainable and sufficiently numerous class, a well-defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives.” Brinker, 53 Cal.4th at 1021. The court determined that the plaintiffs did not demonstrate that common factual and legal questions would predominate over the individual issues and denied class certification. The plaintiffs appealed, but the decision was upheld by the California Court of Appeal.
Plaintiffs appealed to the California Supreme Court, which granted petition for review but held the case for over three years until Brinker was resolved. After issuing their decision in Brinker, the California Supreme Court remanded Bradleyto the California Court of Appeal, Fourth Appellate District, with directions to vacate its decision on class certification and reconsider the case in light of the Brinker decision.
Before getting to the recent decision from the Fourth Appellate District, a little background is useful. A common fight between employers and employees arises when an employer classifies its employees as “independent contractors,” as opposed to employees. True independent contractors have control over the terms and conditions of their employment and are not subject to California wage and hour protections including overtime and meal and rest periods. Employees, on the other hand, remain under their employer’s control during their working hours and are protected by California’s wage and hour laws. The employee versus independent contractor issue has been a battleground for years in the employment law arena and California courts have developed numerous criteria to assess whether an individual is truly an independent contractor or an employee.
In the recent Bradley case, the three plaintiffs alleged that they were misclassified as independent contractors, and should instead have been treated as employees. All three of the plaintiffs worked for Networkers. Each of the plaintiffs was required to sign an “independent contractor agreement,” which stated that each was an independent contractor rather than an employee. As such, plaintiffs did not receive overtime pay or meal or rest periods. However, contrary to the terms of the agreement, the plaintiffs alleged that they were treated as employees and were subject to the same employment policies.
Networkers argued that plaintiffs’ motion to certify the class should be denied because the case did not involve common questions of fact or law, and therefore, resolution of the case would require mini-trials for each plaintiff. Although the court agreed with Networkers on the first go-around, after the Brinker decision, the court agreed with plaintiffs on all but one cause of action.
The Court of Appeal’s Decision on Remand
Because Networkers applied consistent companywide policies applicable to all employees regarding scheduling, payments, and work requirements, those policies could be analyzed on a class-wide basis. The court would not need to assess them with respect to each potential class member. In analyzing whether class certification was appropriate the court noted that, “[t]he critical fact is that the evidence likely to be relied upon by the parties would be largely uniform throughout the class.” The court held that the factual and legal issues related to the independent contractor issue would be the same among the plaintiff class members, and therefore appropriate for class treatment.
Moreover, in Bradley, as in many workplaces, the employer did not have a policy actually distributed to employees that provides for meal and rest periods. Networkers argued that Brinker was not controlling, in its guidance about meal and rest requirements, because in Brinker the plaintiffs challenged an express meal and rest break policy whereas in Bradley, the plaintiffs were arguing that the employer’s lack of policy violated the law. The Court rejected this argument, holding: “This is not a material distinction on the record before us. Under Brinker, and under the facts here, the employer engaged in uniform companywide conduct that allegedly violated state law.” Bradley, 2012 WL 6182473 *13. The Court noted that plaintiffs had presented evidence on Networkers’ uniform practice and that Networkers acknowledged that it did not have a policy and did not know if employees took meal or rest breaks. In assessing the lack of evidence presented by Networkers and relying on Brinker, the Bradley Court held: “Here, plaintiffs’ theory of recovery is based on Networkers’ (uniform) lack of a rest and meal break policy and its (uniform) failure to authorize employees to take statutorily required rest and meal breaks. The lack of a meal/rest break policy and the uniform failure to authorize such breaks are matters of common proof.” Bradley, 2012 WL 6182473 *13.
The Bradley decision disposes of a significant hurdle in wage and hour cases by holding that this type of scheme – where no policy is distributed to provide for meal and rest periods- can meet the commonality requirement for class certification. For example, Bryan Schwartz Law is currently representing a group of restaurant workers who were not aware of a meal/rest period policy, and who were not provided with meal or rest periods. In the Bryan Schwartz Law case, there was no policy that provided the workers with coverage to enable them to take their breaks. Under Bradley, certification is appropriate to test, class-wide, whether the employer’s lack of a well-defined policy or practice of providing meal/rest periods violated the Labor Code.
Although several meal and rest period cases have been decided adversely to workers post-Brinker, the Bradley court determined that each of those cases was distinguishable. In distinguishing Lamps Plus Overtime Cases (2012) 209 Cal.App.4th 35, the Bradley Court of Appeal noted that it was undisputed that the Lamps Plus employer’s written meal and rest period policy was consistent with state law requirements and that the violations differed at each store and with respect to each employee. Similarly, the Bradley court held that Hernandez v. Chipotle Mexican Grill, Inc. (2012) 208 Cal.App.4th 1487 was distinguishable because the only evidence of a company-wide policy or practice was Chipotle’s evidence that it provided meal and rest breaks as required by law. Likewise, Bradley distinguished Tien v. Tenet Healthcare Corp. (2012) 209 Cal.App.4th 1077, noting that in that case there was “overwhelming” evidence that meal periods were made available and the employer’s liability with respect to each employee depended on issues specific to each employee. Brookler v. Radioshack Corp. is an undecided case that was remanded after Brinker involving wage and hour class certification, which may provide additional clarification on these issues.
The court also rejected Networkers’ argument that because each plaintiff would be owed a different amount of damages, the case should not be certified. Relying, in part, on the concurring opinion in Brinker, the court held that even where plaintiffs are required to individually prove damages, individualized damages inquiries do not bar class certification. The court also reversed its prior decision and determined that class certification on the issue of overtime was appropriate because, assuming the plaintiffs were employees, proof of damages could be determined from the common proof of the pay records.
Although the court decided to remand the off-the-clock work issue, it did so because the factual record did not show that there was a uniform policy requiring each employee to work off the clock.
About the Author: Bryan Schwartz is a practicing attorney. If you believe you have been mis-classified as an independent contractor, have meal and rest period claims, or have questions about other wage and hour violations, contact Bryan Schwartz Law (www.BryanSchwartzLaw.com). Nothing in the foregoing commentary is intended to provide legal advice in a specific case or to form an attorney-client relationship with any reader. You must have a representation agreement with Bryan Schwartz Law to be a client of this firm or author.
Monday, December 10th, 2012
On Thursday, Michigan Gov. Rick Snyder (R) backtrackedon his commitment to avoid so-called “right-to-work” legislation and by the end of the day, both the Michigan House of Representatives and the Michigan state Senate had introduced and passed separate bills aimed at the state’s union workforce.
Michigan Republicans claim the state needs the measure to stay competitive with Indiana, where lawmakers passed “right-to-work” last year. In reality, though, such laws have negative effects on workers and little effect on economic growth. Here is what you need to know about the state GOP’s campaign:
THE LEGISLATION: Both the state House and state Senate passed legislation on Thursday that prohibits private sector unions from requiring members to pay dues. The Senate followed suit and passed a different but similar measure that extends the same prohibition for public sector unions, though firefighters and police officers are exempt. The state House included a budget appropriations provision that is intended to prevent the state’s voters from being able to legally challenge the law through a ballot referendum. Due to state law, both houses are prevented from voting on legislation passed by the other for five days, so neither will be able to fully pass the legislation until Tuesday at the earliest.
THE PROCESS: Union leaders and Democrats claim that Republicans are pushing the legislation through in the lame-duck session to hide the intent of the measures from citizens, and because the legislation would face more trouble after the new House convenes in January. Michigan Republicans hold a 63-47 advantage in the state House, but Democrats narrowed the GOP majority to just eight seats in November. Six Republicans opposed the House measure; five of them won re-election in 2012 (the sixth retired). And Michigan Republicans have good reason to pursue the laws without public debate. Though the state’s voters are evenly split on whether it should become a right-to-work state, 78 percent of voters said the legislature “should focus on issues like creating jobs and improving education, and not changing state laws or rules that would impact unions or make further changes in collective bargaining.”
THE CONSEQUENCES: While Snyder and Republicans pitched “right-to-work” as a pro-worker move aimed at improving the economy, studies show such legislation can cost workers money. The Economic Policy Institute found that right-to-work laws cost all workers, union and otherwise, $1,500 a year in wages and that they make it harder for workers to obtain pensions and health coverage. “If benefits coverage in non-right-to-work states were lowered to the levels of states with these laws, 2 million fewer workers would receive health insurance and 3.8 million fewer workers would receive pensions nationwide,” David Madland and Karla Walter from the Center for American Progress wrote earlier this year. The decreases in union membership that result from right-to-work laws have a significant impact on the middle class and research “shows that there is no relationship between right-to-work laws and state unemployment rates, state per capita income, or state job growth,” EPI wrote in a recent report about Michigan. “Right-to-work” laws also decrease worker safety and can hurt small businesses.
Union leaders are, of course, aghast at Snyder and the GOP’s right-to-work push. “In a state that gave birth to the modern U.S. labor movement, it is unconscionable that Michigan legislators would seek to drive down living standards for Michigan workers and families with a law that will do nothing to improve either the state’s economic climate or the quality of life for Michigan residents,” RoseAnn DeMoro, the executive director of National Nurses United, said in a statement.
This post was originally posted on December 7, 2012 on Think Progress. Reprinted with Permission.
About the Author: Travis Waldron is is a reporter/blogger for ThinkProgress.org at the Center for American Progress Action Fund. Travis grew up in Louisville, Kentucky, and holds a BA in journalism and political science from the University of Kentucky. Before coming to ThinkProgress, he worked as a press aide at the Health Information Center and as a staffer on Kentucky Attorney General Jack Conway’s 2010 Senate campaign. He also interned at National Journal’s Hotline and was a sports writer and political columnist at the Kentucky Kernel, the University of Kentucky’s daily student newspaper.