Abercrummy & Fitch…This week’s wage and hour class action involves Abercrombie & Fitch—no stranger to employment lawsuits—over allegations of violations of California labor law and state and federal overtime law. The lawsuit claims the clothing retailer misclassifies its sales and stockroom associates as exempt from overtime wages even though they regularly work more than 40 hours in a week and are often “on call” during other shifts. You’d think they’d know the drill on this stuff by now…
The lawsuit alleges hourly workers at the company’s Abercrombie & Fitch and Hollister stores often work overtime hours and are scheduled for certain “call-in” shifts, during which the employees are required to call the store an hour before a shift begins to see if the stores need them to work. The employees must keep the call-in hours open but are not compensated if the stores don’t need them to report for work.
Filed by lead plaintiff Samantha Jones, the complaint states she was employed by the national clothing retailer from December 2005 through to January 2014 in its namesake Hollister stores. She was employed as a brand representative, model, a term used to refer to hourly associates on the sales floor and impact team member, an hourly associate working in the back of the store and eventually was promoted to a manager position.
Jones alleges that she was classified as a non-exempt employee during the entire period of her employment with the defendant that she was paid on an hourly basis and entitled to overtime wage. However, the defendant has a “uniform policy and practice” of failing to compensate employees for all hours worked.
Jones further claims that Abercrombie failed to keep accurate records and pay Jones and the putative class members for their hours worked, including failing to record on-call hours and the overtime hours generated by the on-call shifts.
Specifically, the complaint states: “Defendants, as a matter of corporate policy, practice and procedure, intentionally, knowingly and systematically failed to compensate plaintiff and the class members for all hours worked (for on-call time), and undercompensated them for overtime worked that should have been paid at overtime rates had the on-call time been paid for.”
The lawsuit seeks to represent a nationwide Fair Labor Standards Act class, a California class and a California subclass, composed of individuals who were classified as nonexempt, paid on an hourly basis and scheduled for call-in shifts.
The suit is Jones v. Abercrombie & Fitch Trading Company, case number 3:14-cv-04631, in the U.S. District Court for the Northern District of California.
Verizon to Pay Unpaid Overtime—to the tune of $15 million, according to a settlement agreement reached this week. The agreement will end a wage and hour class action lawsuit brought against Verizon California Inc alleging violations of California labor law. Specifically, the plaintiffs claimed Verizon issued inaccurate wage statements that omitted crucial information making it impossible for the workers to determine whether they had been paid properly.
In addition to approving the Verizon settlement motion, Judge Mitchell L. Beckloff certified the proposed settlement class, which consists of employees paid biweekly in California who received itemized income statements from Verizon between April 1, 2009 and May 2011.
Filed by former Verizon field technician Hector Banda in April 2010, the lawsuit alleges Verizon violated the California Labor Code and the code’s Private Attorney General Act by not listing the pay period beginning date, applicable hourly rates and number of hours worked at each rate on the wage statements it issued to employees. A similar complaint was filed by Scott Cerkoney three months after the first lawsuit and the cases were subsequently consolidated in 2011.
According to the complaint, Verizon allegedly issued some 223,000 wage statements to its 6,800 employees during the class period.
The cases are Hector Banda et al. v. Verizon California Inc. et al., case number BC434587, and Scott Cerkoney et al. v. Verizon California Inc. et al., case number BC442358, both in the Superior Court of the State of California, County of Los Angeles.
And CVS Caremark, too! Yet another California labor law and unpaid overtime class action settlement to report this week—this one a final $2.8 million settlement for CVS Caremark pharmacists, who alleged violations of California labor law. A California judge approved the settlement of class claims that the pharmacy chain improperly forced hundreds of Southern California pharmacists to work seven days straight without overtime. This is the first settlement of six such lawsuits pending against the retailer alleging unpaid overtime.
The CVS Caremark settlement will provide damages to 627 CVS pharmacists who are or were employed in CVS’ “Region 72,” the Southern California area that is one of CVS’ six regions in that state. The settlement represents roughly 70 percent of plaintiffs’ estimation of CVS’ total potential liability.
Named plaintiff Connie Meneses filed suit in August 2012, alleging CVS was improperly forcing its pharmacists to work seven days in a row without paying overtime for the seventh, in violation of a state law that mandates pharmacists be given a day off after six days of work.
The case is Connie Meneses et al. v. CVS Pharmacy Inc. et al., case number BC489739, in the Superior Court of the State of California, County of Los Angeles.
Hokee Dokee—Time to adjourn for the week. Have a fab weekend—See you at the bar!
If you can’t read you might as well write—right? Write a lawsuit that is—this one was recently filed by a 44-year old man who has been convicted of murder and is set to spend the next 56 years behind bars.
Dwight Pink Jr alleges his constitutional rights are being denied because the prison guards at the facility in Connecticut where he is incarcerated, used a policy to deny him access to an “art book”—the “Atlas of Foreshortening”—which contains nude pictures. So this ban also goes under the guise of a ban on pornography. Oh, this old chestnut. According to Pink, the ban is a violation of his free speech rights and serves no meaningful objective in prison.
Of course, the state doesn’t agree, and stated in its response that Pink has not been harmed by the ban and none of his rights were violated. Hmm… “Any injury or harm, if any, was caused solely by plaintiff’s own acts, omissions, or conduct and was not due to any wrongful conduct by the defendants,” Assistant Attorney General Steven Strom wrote.
What conduct, acts or omissions are they referring to?
The back story is that in 2011, the state Department of Correction put out the administrative directive banning all material that contains “pictorial depictions of sexual activity or nudity” from the prisons. Art books would definitely fall into that category. BUT, the state also said the ban should not apply to “materials which, taken as a whole, are literary, artistic, educational or scientific in nature.”
I think benefit would be derived from defining those terms, no? Certainly it would reduce the paperwork. Apparently the ban has resulted in half a dozen lawsuits being filed, no surprise there, challenging the greyer than grey law, in both state and federal courts.
The ban was intended to improve the work environment for prison staffers, especially female staffers. What’s that expression—the road to hell is paved with good intentions…
Jaclyn Falkowski, a spokeswoman for the attorney general’s office, said the cases that have been filed are still being litigated. At least the lawyers are making money.
According to the New York Post, in 2012 a judge hearing a case refused to issue a preliminary injunction allowing inmate Akove Ortiz to possess magazines like “Playboy.” He wrote in his ruling, “Although prisoners do not forfeit all of their constitutional rights upon incarceration, the fact of incarceration and the needs of the prison system impose limitations on prisoners’ constitutional rights, even those derived from the First Amendment.”
In an interview with the Post, William Dunlap, a law professor at Quinnipiac University, said that in general the courts have taken the side of the state, if the prison officials can prove the ban has a legitimate goal other than to simply suppress material that some people might find objectionable. One such goal would be maintaining safety in the prisons or keeping the material out of the hands of sex offenders. Makes sense. But Dunlap added that Pink’s lawsuit has a chance of succeeding provided he can prove that his book was improperly denied him because it falls under the categories art and/or literature. “I think that’s a much stronger argument than saying the statute itself is facially unconstitutional,” he told the Post.
So we’re back to the definition of art. I think that debate has been taking place for at least 2,000 years.
FYI—Pink is doing 56-years for his role in the 1998 slaying of a 35-year-old man in Old Saybrook. According to the authorities, the victim, Scott Rufin, was shot up to five times in the head with two guns and stabbed in the heart seven times with a sword, authorities said. The title of that work would be the Foreshortening of Human Life…
General Motors Co. Better Buckle Up because they are facing the mother of defective automotive class actions… two consumer fraud class action lawsuits to be precise, which combined, seek to represent drivers of 27 million vehicles in the US.
Thought to be the largest lawsuits brought against GM to date, they stem from GM’s series of recalls prompted by 60 serious defects in 27 million vehicles, according to legal documents. The plaintiffs are seeking $10 billion in compensation for reduced values of their vehicles.
The proposed GM lawsuits seek to represent owners who bought or leased a GM recalled vehicle between July 2009 and July 2014 and either still have it, sold it after mid-February, when the recalls started, or had an accident that destroyed it after that date. More than 20 million customers could join the lawsuit, according to the attorneys representing the plaintiffs.
According to the complaints filed on Tuesday in federal court in Manhattan, “New GM repeatedly proclaimed that it was a company committed to innovation, safety and maintaining a strong brand.” “New GM” is the re-branded name for automaker after its 2009 bankruptcy and government bailout. “The value of all GM-branded vehicles has diminished as a result of the widespread publication of those defects and New GM’s corporate culture of ignoring and concealing safety defects.”
Hundreds of individual complaints against GM about vehicle values were combined in two class actions, with the larger suit involving vehicles made after the bankruptcy. The smaller suite focused on ignition-switch faults in vehicles made before the bailout. Both complaints say the vehicles at issue started losing value in February 2014, a situation that continues, affecting Chevy Camaros with model years 2010 and 2011 that lost $2,000 in value, and the 2009 Pontiac Solstice, which has lost almost $3,000 in value, according to the suits.
More than 27 deaths have been attributed to the defects, according to the latest claims report released earlier this week by the attorney overseeing the compensation fund for victims of crashes stemming from the defects.
The cases are In re: General Motors LLC Ignition Switch Litigation, case number 1:14-md-02543, in the U.S. District Court for the Southern District of New York.
On LinkedIn? Heads Up—the social networking site is facing a proposed class action alleging that the “trusted reference” reports offered through the 300 million-member professional social network don’t comply with the Fair Credit Reporting Act (FCRA) certification and disclosure requirements. Oops.
All kidding aside, the alleged breach could have far reaching effects, not surprisingly. The LinkedIn lawsuit, filed in California federal court, claims LinkedIn must comply with the same standards mandated by the FCRA for credit reporting agencies who furnish consumer reports for employment purposes. The lawsuit contends that the company has filed to do so, by not maintaining reasonable procedures to limit the furnishing of consumer reports containing inaccurate information to potential employers. This could, in turn, potentially harm job applicants who are evaluated based on that information. Got it?
Here’s the skinny: filed on behalf of plaintiff Tracee Sweet and others, the complaint states that LinkedIn offers a premium service allowing users to click on a member’s profile and select a “search for references” link. The site then generates a reference report containing the names, locations, employment areas, current employers and current positions of all persons in the user’s network who may have worked with that individual.
According to the lawsuit, any potential employer using these reports can anonymously dig into the employment history of any LinkedIn member, and make hiring and firing decisions without the knowledge of the member, without any safeguards in place to ensure the potential employer received accurate information.
“Such secrecy in dealing in consumer information directly contradicts the express purposes of the FCRA, which was enacted to promote accuracy, fairness and the privacy of personal information assembled by credit reporting agencies,” the lawsuit states.
Further, the lawsuit states that the information regarding employment history, including job titles is supplied by each individual member, and LinkedIn therefore relies solely on each of its members to accurately input and update their own employment history. If a LinkedIn member misrepresented his or her job title from a past employer or included other fabricated employment information in their profile, that information would appear on a reference report for any other LinkedIn member who may have worked at the same employer with that individual.
“Such inaccurate information could lead to negative consequences for any job applicant whose potential employer contacts that reference,” the complaint states.
The lawsuit seeks to represent all LinkedIn users in the United States who had a reference report generated on from their profile within the last two years, and a subclass of anyone who also applied for employment through a LinkedIn job posting.
The case is Tracee Sweet et al. v. LinkedIn Corp., case number 3:14-cv-04531, in the U.S. District Court for the Northern District of California.
Extendicare Didn’t Care? This settlement hits a number of buttons—for all the wrong reasons. Extendicare Health Services Inc. and its subsidiary Progressive Step Corporation (ProStep) have agreed to pay $38 million to the United States and eight states to resolve allegations that Extendicare billed Medicare and Medicaid for materially substandard elder care nursing services that were so deficient that they were effectively worthless and billed Medicare for medically unreasonable and unnecessary rehabilitation therapy services, the Justice Department and the U.S. Department of Health and Human Services Office of Inspector General (HHS-OIG) jointly announced today. This resolution is the largest failure of care settlement with a chain-wide skilled nursing facility in the department’s history. Investigators were tipped off by whistleblowers at Extendicare.
As part of this settlement, Extendicare has also been required to enter into a five year chain-wide Corporate Integrity Agreement with HHS-OIG. Extendicare is a Delaware corporation that, through its subsidiaries, operates 146 skilled nursing facilities in 11 states. No small operation. ProStep provides physical, speech, and occupational rehabilitation services.
This settlement resolves allegations that between 2007 and 2013, in 33 of its skilled nursing homes in eight states, Extendicare billed Medicare and Medicaid for materially substandard skilled nursing services and failed to provide care to its residents that met federal and state standards of care and regulatory requirements. The government alleges, for example, that Extendicare failed to have a sufficient number of skilled nurses to adequately care for its skilled nursing residents; failed to provide adequate catheter care to some of the residents and failed to follow the appropriate protocols to prevent pressure ulcers or falls. The eight states involved in this component of the settlement are Indiana, Kentucky, Michigan, Minnesota, Ohio, Pennsylvania, Washington and Wisconsin.
Additionally, this settlement resolves allegations that between 2007 and 2013, in 33 of its skilled nursing homes, Extendicare provided medically unreasonable and unnecessary rehabilitation therapy services to its Medicare Part A beneficiaries, particularly during the patients’ assessment reference periods, so that it could bill Medicare for those patients at the highest per diem rate possible.
As a result of the settlement, the federal government will receive $32.3 million and the eight state Medicaid programs will receive $5.7 million. The Medicaid program is funded jointly by the federal and state governments.
Hokee Dokee—Time to adjourn for the week. Have a fab weekend—See you at the bar!
When Winning Your Lawsuit Just Isn’t Enough…
Talk about Caveat Emptor. A couple who purchased an upscale home next to golf course in a suburb of St. Louise, MO, got more than the nest of their dreams—turns out it was also the dream home for some 6,000 brown recluse spiders—which, incidentally, are venomous.
The couple bought the house in 2007 for $450,000. Shortly after moving in they discovered the spider problem. After unsuccessfully trying to evict their unwanted tenants, through various strategies including interior and exterior pesticides, Brian and Susan Trost filed a claim with their insurer—State Farm, only to have it denied. So they sued the former owners for failure to disclose. They stated in their lawsuit that the spiders and their telltale webs were absent during the couple’s final walk-through. However, shortly after moving in—ie the first day, the spider problem became apparent. In fact, Susan Trost stated that once when showering a spider fell from the ceiling and washed down the drain, narrowly missing her. Time to find a hotel!!!
In 2012, Mrs. Trost told St. Louis television station KMOV-TV the spiders “started bleeding out of the walls,” and at least two pest control companies were unable to eradicate the infestation. I see a movie script here…
In 2011, during a civil trial in St. Charles County, one of the county’s leading experts on brown recluse spiders, Jamel Sandidge, a professor of biology at University of Kansas, estimated there were between 4,500 and 6,000 spiders in the home. Making matters worse, he said, those calculations were made in the winter when the spiders are least active. Really, really not what you want to hear.
The Trosts, not surprisingly, won their lawsuit against the previous home owners, but were unable to collect the judgement of $472,000, because, State Farm, the previous home owners’ insurers, claimed that the former owners’ policy lacked coverage and refused to pay. Then, the previous owners filed bankruptcy. Nice.
Although the Trosts have filed suit against State Farm for denying their original claim, they moved out of the house and allowed it to go into foreclosure. Because the previous owners filed bankruptcy—the Trosts, may never see their money.
According to the St. Louis Dispatch, the home, now owned by the Federal National Mortgage Association, was covered with nine tarps this week and workers filled it with a gas that permeated the walls to kill the spiders and their eggs. “There’ll be nothing alive in there after this,” said Tim McCarthy, president of the company hired to fix the problem once and for all.
I can’t help wondering about the neighbors—if I lived next door, I’d be really worried…
A roundup of recent asbestos-related news and information that you should be aware of. An ongoing list of reported asbestos hot spots in the US from the Asbestos News Roundup archive appears on our asbestos map.
Researchers at the Center of Excellence in Environmental Toxicology (CEET), Perelman School of Medicine at the University of Pennsylvania, have been awarded a $10 million grant from the National Institute for Environmental Health Sciences (NIEHS) over the next four years to study asbestos exposure pathways that lead to mesothelioma, the bioremediation of this hazardous material and mechanisms that lead to asbestos-related diseases. One of these, mesothelioma, a rare cancer diagnosed in about 3,000 patients each year, is caused almost exclusively by exposure to asbestos. The disease is usually fatal with very poor prognosis once diagnosed.
The Penn Superfund Research and Training Program (SRP) Center, which was established by this grant, evolved as a direct consequence of concerns from the community living near the BioRit Asbestos Superfund site in Ambler, PA, about 20 miles north of Philadelphia.
This award is the first NIEHS Superfund grant driven by problems identified in a community-academic partnership. CEET’s Community Outreach and Engagement Core (COEC) has facilitated bi-directional communication with the Ambler community for the last five years. The communities of West and South Ambler have long been active in studying the ramifications of their town’s long-closed asbestos factory.
Residents in these communities remain at risk for environmental exposure and a potentially increased risk of developing mesothelioma.
From the late 1880s through the present day, Ambler residents have had either occupational or environmental exposure to asbestos. As a result, both current and former residents of the area face potentially serious long-term health consequences. The Pennsylvania Department of Health, with the aid of the COEC, determined that there has been an increase in the rate of mesothelioma in the area compared to the adjacent zip codes, with women having a greater risk than men. The researchers are hopeful that continued investigation and education will yield more information about exposure pathways that led to these health risks.
The new Center will tackle two inter-related environmental science studies and four biomedical science studies. The six projects were designed to address a community-based question or concern that had been previously identified by the COEC:
• Can we remediate asbestos without moving it from the original disposal site?
• What do we know about the fate and transport of asbestos in the environment by water and air?
• What do we know about the exposure pathways that were responsible for the mesothelioma cluster in Ambler? And why is the incidence higher in women?
• Is susceptibility to mesothelioma genetic?
• Can asbestos-related disease be prevented?
• Is there a blood test to determine whether a person will get asbestos-related disease?
Jefferson County, WV: The family of a man who recently died after exposure to asbestos have filed an asbestos lawsuit against his former employer Gulf Oil/Chevron in Jefferson County.
In their complaint, Dolores Belton, Carla Mahan and Myra Mitchell allege their husband and father, Jack Belton, during the course of his employment with the defendant was exposed to toxic materials, including asbestos dust and fibers. “As a result of such exposure, Jack Belton, developed an asbestos-related disease, asbestosis, from which he died a painful and terrible death on March 6, 2014,” the lawsuit states.
The plaintiffs allege Chevron is responsible for their loved one’s injuries, saying the company knew that the products could case asbestosis and other related cancers but still allowed their employees to work around the products. In their complaint, the plaintiffs seek unspecified exemplary and punitive damages plus costs. (wvrecord.com)
Jefferson County, WV: Rosemary Philmon, surviving spouse of Jesse Philmon, and Terry and Ryan Philmon, his surviving children, have filed an asbestos lawsuit against Chevron USA Inc. alleging the company exposed Jess Philmon to asbestos during the course of his employment at Chevron. This exposure resulted in his developing lung cancer and subsequently dying from it.
According to the complaint, Jesse Philmon was was allegedly “exposed to toxic materials including asbestos dust and fibers,” while employed by Gulf Oil/Chevron in Jefferson County.
Philmon developed lung cancer “from which he died a painful and terrible death March 6, 2013,” the lawsuit states.
Philmon’s family alleges Chevron has known for decades that asbestos-containing products could cause asbestos-related cancers but still allowed employees to be exposed to it on the job. They accuse the company of gross negligence for allegedly failing to take the necessary precautions or provide adequate training for Jesse Philmon.
Rosemary Philmon and her sons seek an unspecified amount in exemplary and punitive damages. (wvrecord.com)