Wage and Hour Law

Healthcare Workers Who Claim to Sometimes Work 24 Hour Shifts Allegedly Without Adequate Breaks Hit Kindred Healthcare With a Class Action Suit

June 26, 2014 | Peter S. Lubin and James V. DiTommaso

The federal Fair Labor Standards Act (FLSA) applies to all employees working in the United States and regulates things like minimum wage and overtime. For example, under the federal law, all hourly employees must be paid at least $7.25 per hour. Any time that an employee works more than eight hours in a day or forty hours a week, the employer is required to compensate the employee the proper overtime compensation of one and one-half times her normal hourly rate for all overtime worked.

In addition to the FLSA, every state has their own laws to protect employees working within that state. Large corporations who do business in multiple states need to be sure that they are acting in accordance with all of the relevant labor laws in order to avoid a lawsuit.

Recently, Kindred Healthcare (which is based in Kentucky) and its subsidiaries, Professional Healthcare at Home and NP Plus, have been hit with a class action wage and hour lawsuit brought by two employees of the company working in California. The lead plaintiffs, Emma Hawkins and Ginger Rogers, are both caregivers who provide non-medical care to the elderly, ill, and disabled on behalf of Kindred Healthcare.

Kindred contracts out workers like Hawkins and Rogers to assisted living and rehabilitation facilities. According to the lawsuit, these caregivers are made to work 12-hour shifts, seven days a week, without any of the meal and rest breaks that they are entitled to under California labor law. Continue reading ›

Avis Sued in Unpaid Overtime Claims by Drivers

June 20, 2014 | Peter S. Lubin and James V. DiTommaso

The federal Fair Labor Standards Act (FLSA) mandates that all employees working in the United States must be paid at least the federal minimum wage of $7.25 per hour. This is true regardless of how the employee is paid. While some workers are paid per piece or on commission, the wages paid to these employees, calculated against the amount of time they spent working, must average out to at least $7.25 per hour.

The FLSA also requires that all non-exempt employees who work in excess of eight hours a day or forty hours a week must be paid the proper overtime compensation of one and one-half times the employee’s normal hourly rate. This also remains true for workers who are paid on commission or on a piece-rate basis. The employer must calculate the employee’s normal hourly rate based on the wages earned and the time spent working, in order to come up with an overtime rate for the employee.

There are many advantages to a company classifying an employee as an independent contractor. The company gets to avoid paying taxes and benefits such as health insurance. However, the law has very specific requirements for the kinds of workers that can be classified as independent contractors. For example, an independent contractor must have more freedom than an employee, such as the ability to choose when and where they perform their work and the type of clothing that they wear while working. Independent contractors also get to choose how many and which clients they work for. Continue reading ›

Overtime Class Action Lawsuit Filed Against BJC Healthcare System

October 22, 2013 | Peter S. Lubin and James V. DiTommaso

A St Louis news station reports:

A class-action lawsuit was filed this week in St. Louis Circuit Court on behalf of former and current nurses and medical personnel employed by BJC Healthcare System …

The lawsuit, Speraneo v. BJC Health System Inc., d/b/a BJC Healthcare, accuses BJC of failing to properly pay employees through its recording policies and failing to pay overtime for employees working more than 40 hours per week. BJC’s timekeeping rounds down to the nearest quarter hour even though exact times employees clocked into work are electronically documented.

BJC is also accused of automatically deducting time for meal breaks even though some employees, such as nurses, work through their break time and are not compensated.

You can view the lawsuit here.

Appellate Court Affirms Grant of Summary Judgment in Reverse Discrimination Case Holding that Fighting at Work Justifies Termination — Our Chicago Business Trial Attorneys Represent Employers and Employees in Discrimination and Overtime Lawsuits

August 13, 2013 | Peter S. Lubin and James V. DiTommaso

Johnson, an African-American woman, was employed at Koppers’ plant from 1995 until her termination in 2008. She had been disciplined for sleeping at her desk in the laboratory, for smoking in the lunch room, for not punching out on the time clock, for fighting with a security guard, and for an altercation with a white male co-worker, O’Connell. Without interviewing Johnson, the plant manager determined that both O’Connell and Johnson were at fault and decided that Johnson should be punished more severely because of her disciplinary history and O’Connell’s allegations of racial harassment. The plant manager warned Johnson that future incidents would lead to termination. O’Connell received a less severe warning letter. The Union filed a grievance on Johnson’s behalf and Johnson’s warning was reduced to a memo that summarized her work obligations and employment status. Johnson was fired after another altercation with O’Connell. A witness indicated that Johnson shoved O’Connell, who filed a police report.

Johnson filed suit, alleging discrimination on the basis of her race and gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, and 42 U.S.C. 1983. Johnson argued that her claim should succeed under the cat’s paw theory because her co-worker, O’Connell, harbored discriminatory animus against her race and gender. As O’Connell had no power to terminate Johnson himself, Johnson argued that O’Connell falsely reported that she called
him racial and gender-based slurs on one occasion and pushed him following a separate verbal altercation, in order to induce the plant manager to terminate Johnson’s employment at
Koppers.

The trial court granted summary judgment in favor of the the employer, Koppers and reject Johnson’s claims holding a false report by O’Connell, standing alone, is insufficient to establish discriminatory animus. While it is clear from the record that O’Connell and Johnson did not like each other, Johnson has provided no evidence to indicate that O’Connell’s animosity was motivated by discriminatory bias against her race or gender.

The Seventh Circuit affirmed summary judgment in favor of Koppers. In affirming the trial court, the Seventh Circuit held:

In order to succeed under the cat’s paw theory, Johnson needs to show that O’Connell, motivated by discriminatory animus, concocted a false story about Johnson, and that
O’Connell’s story was the proximate cause of Johnson’s termination. See Jajeh v. Cook County, 678 F.3d 560, 572 (7th Cir. 2012). That simply is not the case here. The proximate cause of
Johnson’s termination was actually the April 2008 physical altercation between Johnson and O’Connell that was witnessed by an independent third party. … Johnson’s claim fails because she cannot prove that she met Koppers’ legitimate job expectations, or that Koppers’ non-discriminatory reason for termination was pretextual. While Johnson correctly points out that there is no evidence to suggest that she had not been adequately performing her duties as a lab technician, her termination stemmed from a specific incident of insubordination, not a failure to perform her daily tasks. Johnson’s insubordination—pushing a co-coworker—clearly does not meet Koppers’ legitimate job expectations, even if she was an otherwise satisfactory lab technician.

You can view the Seventh Circuit opinion here
.

Cicero Settles Another Sex Harassment Case Against the Town President — Our Chicago Employment Attorneys Represent Employers and Employees in Employment and Overtime Suits

August 12, 2013 | Peter S. Lubin and James V. DiTommaso

Cicero Town President Larry Dominick claims he knows how to avoid sex harassment: “You’re not supposed to touch ‘em, talk dirty, all kinds of stuff like that.”
However, Cicero has agreed to pay very large settlement of $675,000 to settle a sexual harassment case against Dominick. This is not the first such settlement.

Dominick allegedly requested that a former cop and another woman engage in a threesome. Dominick denies he ever harassed the former cop.

In his deposition in the case, Dominick says learned how to avoid harassing women employees: “You’re not supposed to touch ‘em, talk dirty, all kinds of stuff like that, you know, general things that most people should understand.”
In her lawsuit, the former cop, Lujano says Dominick “on a constant basis” made sexually explicit comments, including calling Lujano’s breasts “gazangas.” She claims Dominick reached out and touched her breasts.

She also claims Dominick whispered in her ear that “he wanted to have a threesome with her and another woman.” She alleges he offered to take her to the sexy getaway “Sybaris and, if not her, then her mother … because he liked her mother too.”
This is not the only time Cicero has had to pay up for alleged sex harassment by Dominick.

In 2011, Cicero paid the former head of the town animal shelter $500,000.

In that case, Sharon Starzyk claimed that Dominick groped her. She claimed on one occasion, when she and Dominick were in a car together, he allegedly passed gas and then groped her. Starzyk also alleged that Dominick sent her emails requesting a threesome with two of Dominick’s friends.

You can view part of Dominick’s deposition below.

Seventh Circuit Affirms Class Certification in Wage Claim – Ross v. RBS Citizens, NA

August 10, 2013 | Peter S. Lubin and James V. DiTommaso

Employees of a bank with multiple branch locations throughout Illinois sued to recover unpaid overtime wages under both the federal Fair Labor Standard Act (FLSA) and the Illinois Minimum Wage Law (IMWL). After the district court certified two classes of plaintiffs, the defendant bank appealed the certification to the Seventh Circuit Court of Appeals. Based in part on a U.S. Supreme Court decision clarifying the requirements for class certification, the Seventh Circuit affirmed the district court’s order. Ross, et al v. RBS Citizens, N.A., 667 F.3d 900 (7th Cir. 2012).

The plaintiffs alleged in their lawsuit that the bank had several “unofficial” policies that allowed it to deny overtime pay to employees, id. at 903, such as using “comp time” instead of overtime wages or altering employee timesheets. They also alleged that some assistant bank managers (ABMs), while officially exempt from eligibility for overtime pay, spent most of their time on non-exempt work. The plaintiffs therefore sought to certify two classes: non-exempt employees who were entitled to overtime compensation, and ABM employees who performed non-exempt work and were entitled to overtime pay. A class action requires four basic elements: “numerosity, commonality, typicality, and adequacy of representation.” Id.; Fed. R. Civ. P. 23(a). The district court certified both classes under Rule 23(b)(3) of the Federal Rules of Civil Procedure (FRCP), which applies to cases where the issues affecting all class members supersede those affecting individual members, and where a class action is the best way to resolve the conflict.

When a Failure to Deny an Allegation Constitutes and Admission – Kule-Rubin v. Bahari Group

October 4, 2012 | Peter S. Lubin and James V. DiTommaso

A defendant’s failure to deny allegations in a responsive pleading to a complaint can serve as an admission of those allegations. In Kule-Rubin, et al v. Bahari Group, Limited, the U.S. District Court for the Southern District of New York granted the plaintiffs’ motion for judgment on the pleadings as to four of the claims asserted in their complaint for wage violations. The plaintiffs argued in their motion that the defendant, in its answer to their original complaint, had not expressly denied certain allegations. The court deemed those allegations admitted by the defendants, and granted judgment on the plaintiffs’ claims that were supported by those admissions. The court also dismissed two counterclaims by the defendant.

The defendant is a manufacturer, distributor, and retailer of clothing. The individual owners of the company were also named as defendants. The eleven plaintiffs were employees who began working for defendant at different times beginning in 1994. According to the plaintiffs’ complaint, the defendant began withholding wages from certain plaintiffs in October 2010, and it withheld wages from all of its employees starting that November. The defendant allegedly withheld commission wages, expense reimbursements, and health insurance premiums from some plaintiffs beginning two years earlier. The defendant told the plaintiffs that if they continued to work for the defendant, it would pay them all back wages and current wages later. All eleven plaintiffs continued working for the defendant until November 30, 2010, when the defendant terminated them.

Federal Court Indicates Equitable Tolling Only Available in FLSA Cases When There is Evidence of Deception by Defendants

December 1, 2011 | Peter S. Lubin and James V. DiTommaso

DiTommaso Lubin handles wage and hour class action litigation on a regular basis, and many of our clients’ claims are based upon violations of the Fair Labor Standards Act (FLSA). Our Schaumburg unpaid overtime attorneys were interested to see a recent class-action brought by restaurant workers alleging violations of the FLSA.

Cao v. Wu Liang Ye Lexington Rest., Inc. is a suit filed by twenty-four employees of two restaurants in New York City. The employees worked as waiters, delivery workers, and a food packer for Defendants and filed suit for unpaid minimum and overtime wages, illegal tip deductions, expense reimbursement for the purchase and maintenance of bicycles and uniforms. Plaintiffs also sought statutory liquidated damages, prejudgment interest, and attorneys’ fees. Plaintiffs filed for default, which was granted by the Court. Plaintiffs subsequently submitted their damages calculations and Defendants opposed Plaintiffs’ application for damages on the basis that Plaintiffs’ calculations were inflated and Defendants’ violations of the FLSA were not willful.

The Court addressed Defendants’ arguments by first discussing the applicable law. The limitations period for FLSA claims is generally two years, but is three years for defendants that willfully break the law. The Court then ruled that the three year statute of limitations was applicable because Defendants defaulted and therefore admitted Plaintiffs’ willfulness allegations. The Court also found the longer statute of limitations applied because Defendants admitted that they did not try to learn about the FLSA’s requirements until just prior to the commencement of the lawsuit. Plaintiffs argued that they should receive unpaid wages for the entirety of their employment under the doctrine of equitable tolling due to the fact that Defendants failed to post a notice explaining the FLSA in plain view of employees. The Court saw no reason to extend Plaintiffs’ claims beyond the statutory three year period because Defendants’ had not engaged in any sort of deception or other exceptional activity, and prior case law held that equitable tolling only applies in unusual circumstances. The Court finished by granting Plaintiffs damages for unpaid minimum wage, overtime wages, unlawful tip deductions, reimbursement for bicycle expenses, liquidated damages, prejudgment interest, and attorneys’ fees.

The Court denied reimbursement for uniform expenses because most of the clothing worn by employees could be “worn as a part of the employees’ ordinary wardrobe.” Plaintiffs did also wear a red vest that could be considered outside an ordinary wardrobe, but there was no evidence in the record that Plaintiffs’ incurred expenses obtaining or cleaning the red vests.

Cao v. Wu Liang Ye Lexington Rest., Inc. provides future wage and hour litigants with several lessons when it comes to preparing damages applications. First and foremost, courts are unlikely to apply equitable tolling to extend the FLSA’s statute of limitations in the absence of intentional deception or fraud by defendants. Additionally, this case serves as a reminder that employees should keep accurate records of work related expenses if they wish to recover damages under the FLSA.

Employers Can Require Exempt Employees to Take Mandatory Leave and Still Meet the IMWL Salary Basis Test

September 29, 2011 | Peter S. Lubin and James V. DiTommaso

At DiTommaso Lubin, we are accustomed to litigating wage claims brought under the Fair Labor Standards Act, and most of our clients have FLSA claims. However, our firm also is well versed in Illinois wage laws, and our Tinley Park wage and hour attorneys discovered an interesting overtime class-action in the Appellate Court of Illinois.

Robinson v. Tellabs, Inc. is wage dispute over a policy instituted by Defendant Tellabs requiring employees to take mandatory unpaid days off. Defendant is a manufacturer of telecommunications components that saw a significant boom in its business during the 1990’s, but saw its profits dwindle after the turn of the millennium. As a result of the downturn in revenue, Defendant laid off a significant portion of its work force and instituted many other cost cutting measures. One of the measures implemented by the company was to institute mandatory unpaid leave several days each year around existing paid holidays. Even after the mandatory unpaid leave policy was instituted, Defendant’s had to lay off additional employees to keep the company afloat.

The named Plaintiff worked as a lead engineer for Defendant while the unpaid leave policy was in effect, and was laid off eleven months after his hiring having never been paid any overtime. Plaintiff then filed a class-action lawsuit alleging that Defendant’s implementation of their mandatory unpaid leave policy made he and similarly situated employees non-exempt for the purposes of the Illinois Minimum Wage Law (IMWL). Therefore, Plaintiffs were entitled to overtime pay for any week in which they worked more than forty hours. The trial court ruled in favor of Defendant and found that the mandatory days off was essentially a prospective salary reduction that served the company’s bona fide business needs.

Plaintiffs appealed the trial court’s decision and claimed that the trial court incorrectly applied the salary basis test in making its ruling. The Appellate Court did not find Plaintiffs’ arguments persuasive and agreed with the trial courts decision. The Court discussed that the rule relied upon by the trial court and set forth by Department of Labor opinion letters, which states “the salary-basis test permits employers to prospectively reduce employees’ salaries for a legitimate business need unless done so frequently that the purported salary becomes a sham attempt to pay an hourly wage.” The Court went on to hold that the rule “refers only to deductions during the current pay period…not reductions in future salary.”
Because Defendant’s policy caused reductions in future salary and the policy was a result of Defendant’s bona fide economic difficulties, the Court found that Defendant satisfied the salary-basis test. Additionally, the Court found the test to be met because the policy was applied uniformly among all employees and was not instituted on an ad hoc basis.

7th Circuit Court of Appeals Rules Employees Entitled to Compensation for Time Spent Donning Safety Gear Under State Law

August 24, 2011 | Peter S. Lubin and James V. DiTommaso

The federal government passed the Fair Labor Standards Act (FLSA) to ensure that American workers would be paid appropriately for the work they provide. While some people may think of the FLSA as a statute that is concerned only with getting workers their unpaid overtime, the language of the law is broad enough to ensure that employees are paid for all of their time spent working, regardless of whether that time is overtime or not. Our Downers Grove wage and hour class-action attorneys found a case in the Seventh Circuit Court of Appeals involving employees who were not paid for the time they spent donning safety gear and wanted to share it with our readers.

In Spoerle vs. Kraft Foods Global, Plaintiffs were employed in Defendant’s plant in Madison, Wisconsin preparing meat products as hourly workers and spent several minutes at the outset of each work day putting on steel-toed boots, hard hats, and other safety gear required to perform the job. Plaintiffs filed suit to challenge a trade-off — struck in a collective bargaining agreement between Plaintiffs’ union and Defendant — where Plaintiffs would not be paid for their time spent donning this protective gear in exchange for a higher base pay rate. The FLSA permits such a tradeoff under §203(o), but Plaintiffs argued that Wisconsin law has no equivalent exception, and therefore state law requires payment for time spent donning such gear. Defendant argued that the FLSA and federal labor laws pre-empt the state law, so the CBA agreement should be honored and the time spent dressing in safety gear should remain noncompensable. The district court found in favor of the Plaintiffs, and Defendant appealed.

On appeal, defendant argued that §203(o) was the federal government’s decision to “permit a collectively bargained resolution to supersede the rules otherwise applicable to determining the number of hours worked.” The Court of Appeals did not find this argument persuasive, however, because nothing placed in a CBA exempts an employer from state laws of general application. Therefore, the Court found that the district court did not err in ruling that Plaintiffs were entitled to be paid for their time spent equipping themselves with safety gear.