Employment Archive
Amazon.com Warehouse Worker Complaints get Outed
September 20th, 2011. By AbiK
If a company pays to have private ambulances and paramedics on-site at its warehouse facility on hot days, does that tell you something?
I don’t know about you, but if I’m working there, it would tell me that there’s an added element of risk to my workday. Risk of things like heat exhaustion, heat stroke, heat cramps, heat rash…particularly, if I’m working at an Amazon.com warehouse where working conditions include long hours (8-12 hour days, sometimes with mandatory overtime) and, according to an Amazon.com Warehouse Associate-Picker job posting, I’m lifting up to 49 lbs of merchandise at a time.
Such conditions were the focus of a recent expose done by The Morning Call‘s Spencer Soper. The Morning Call interviewed a total of twenty current and former Amazon.com warehouse workers on working conditions at Amazon’s Breinigsville, PA warehouse. What Soper found out was a bit disturbing.
The worker allegations included accounts of:
- The heat index in the warehouse reaching 102 degrees on June 2, 2011 and 15 workers collapsing;
- The heat index hitting 110 degrees on the third floor of the warehouse;
- Workers being pressured to continue working and ”make rate” (i.e., productivity levels) in extreme heat to avoid risk of job loss;
- Workers who were given ‘voluntary time off ‘ if the heat index exceeded 110 degrees—but who were subsequently given points—Amazon.com’s version of demerits that can add up over time to job loss—unless a doctor’s note was provided. (It’s reported that Amazon’s policy on this has now changed; workers who head home due to heat lose pay for the hours missed, but they do not get points).
Sounds like an employer-of-choice to me.
Being a bit jaded, I went over to Glassdoor.com to check out the employee (staff and contract) reviews of work life at Amazon.com. I scanned the warehouse- and distribution-related entries and found that the PA warehouse was not just a bunch of disgruntled workers—such gripes are seemingly pervasive at Amazon.com: Long hours. Pressure to make rate. Micro-managing. Mandatory overtime. Points. Continual churn of contract or temp workers who seek full-time status, but never get it.
So much for the “fun” work environment that Amazon’s (or actually, Integrity Staffing Solutions) job postings tout.
Needless to say, some Amazon workers had made complaints to OSHA. And, in fairness, according to The Morning Call article, Amazon’s Allen Forney—the PA site safety manager—has also reported to OSHA the heat-related incidents and how Amazon has responded to such incidents on days of excessive heat.
Forney stated in a letter to OSHA (6/13/11) that on 6/3/11, six “employees were treated at a local hospital ER for non-work related medical conditions triggered by the heat” (note the “non-work related”…CYA all the way). Of course, OSHA does require that employers must “Notify OSHA within 8 hours of a workplace incident in which there is a death or when three or more workers go to a hospital.”
Forney also notes that Amazon has put in place measures such as adding fans; installing heat index sensors in March that alert managers when the index rises above 90 degrees; and purchasing ’2,000 cooling bandannas’ and cooling vests for workers. Managers also ‘walk the building’ to ensure workers get enough water. And, when the temperature is between 90 and 99 degrees, workers get an additional five minutes of break time; if the temp hits 100 to 114 degrees, workers ‘typically’ get a five-minute break every hour, and ‘heavier work’ gets moved to cooler times during the day. Gee, thanks.
Of note, it has to get to 115 degrees before, according to Forney, “the senior manager on duty will decide whether to close down the entire shift.” Yes, 115 degrees.
For the record, as fans seem to be a big part of the heat index management plan at Amazon.com, a quick visit over to the CDC (Centers for Disease Control and Prevention) provided this regarding use of fans for heat-related symptoms:
Electric fans may provide comfort, but when the temperature is in the high 90s, fans will not prevent heat-related illness. Taking a cool shower or bath or moving to an air-conditioned place is a much better way to cool off. Air conditioning is the strongest protective factor against heat-related illness. Exposure to air conditioning for even a few hours a day will reduce the risk for heat-related illness. Consider visiting a shopping mall or public library for a few hours.
The inclusion of OSHA in all this begs the question, “so what did OSHA do about it?”
OSHA issued recommendations. OSHA recommended that Amazon reduce warehouse temperatures and humidity, but OSHA did not provide the temperature at which the warehouse should be maintained. OSHA also recommended hourly breaks in a cool area, and informing workers and
supervisors of the actual heat index or temperature in order for them to increase
monitoring as it gets hotter, and to provide personal fans at each work station. (Didn’t I just quote the CDC as saying fans wouldn’t help in preventing heat-related illness? Go figure.)
So OSHA falls short of actually putting a stake in the ground as to what temperature is acceptable for safe working conditions—and as a result, I can’t help but put a little blame on OSHA’s shoulders. If you only follow what you’re being mandated to do, well… But common sense at the very least should prevail over at Amazon.com. When you need to hire ambulances and paramedics and park them right outside your warehouse (next the the break truck?)—that should tell you something. Likewise, when workers are passing out or leaving to go home or being carted off the the hospital, it should tell you something.
And in the interim, I have something to tell Amazon.com—that lovely air conditioning unit shown above cools up to a 4,000 square foot area—and it’s available on your own damn site for $8,295.
Understand the Pharmaceutical Representative Overtime Lawsuits? Here’s Help
March 25th, 2011. By Kristine B
If not, you’re not alone. In fact, even the courts have reached contradictory rulings in the pharmaceutical representative overtime lawsuits they’ve seen. While the pharma reps won the Novartis lawsuit, they lost the Johnson & Johnson and GlaxoSmithKline lawsuits. Those losses, however, don’t mean that pharmaceutical sales reps should just give up. In each case, the judges relied on different legal issues and exemptions, which is how such different results were achieved. Pleading Ignorance takes a look at what’s been going on…
First, the Backstory: the Fair Labor Standards Act
Under the Fair Labor Standards Act, certain employees are considered exempt from overtime pay. Those exemptions include outside sales employees and people who are considered “administrative”. Outside sales employees are considered exempt because they are paid on commission and therefore have an unlimited earning potential. Furthermore, many outside sales people work independently of an office and therefore have a say in what hours they work and how they go about their job. To be considered exempt from overtime pay, however, outside sales people must spend at least 50 percent of the time in their job involved in sales.
Administrative people are those who exercise independent authority, judgement or discretion in their job. They have a great deal of discretion in their job activities and how they fulfill their employment requirements.
Lawsuits have been filed against various pharmaceutical companies alleging that pharmaceutical sales reps do not fit either the outside sales exemption or the administrative exemption.
Novartis Sales Rep Overtime Lawsuit
In the Novartis lawsuit, the court found that the pharmaceutical reps were misclassified as exempt from overtime pay—meaning they should receive pay for overtime hours worked. In reaching the decision, the court found that Novartis sales representatives were not directly involved in the sales transaction. Instead, the reps informed physicians of a product’s benefits and encouraged physicians to prescribe Novartis products. At no point during the visit did the sales rep actually engage in a sales transaction.
Furthermore, the court found that the Novartis reps didn’t fall under the administrative exemption because Novartis controlled the sales pitches and reps were not allowed to deviate from that pitch. Additionally, the reps did not have the authority to in any way direct or interpret Novartis policies or procedures. Because the courts found the Novartis reps were not exempt under the outside sales or administrative rules, the reps are therefore, according to the courts, eligible for overtime pay.
Johnson & Johnson Sales Rep Overtime Lawsuit
A lawsuit against Johnson & Johnson, however, resulted in a different decision. In that case, the pharmaceutical sales representative was found to be exempt from overtime pay under the administrative employee guidelines. In that case, the court found that the plaintiff was able to develop her own itinerary, could visit some doctors more frequently than others and was expected to develop a plan to obtain more sales. The court found that the plaintiff worked without direct oversight most of the time and therefore had discretion and independent judgment required for the administrative exemption.
GlaxoSmithKline Sales Rep Overtime Lawsuit
In GlaxoSmithKline’s lawsuit over pharmaceutical representative overtime pay, the courts backed GlaxoSmithKline’s decision not to pay the reps overtime. In this case, unlike Johnson & Johnson, the court determined that GSK sales reps fall under the guidelines of outside sales representatives because they are motivated by commissions and they have freedom to work outside the office.
So it currently appears that whether or not a pharmaceutical rep is eligible for overtime pay is somewhat determined by which court hears the lawsuit and by which company you work for and how much authority you have in your job.
The court’s decision in GSK actually contradicted a brief filed by the US Department of Labor that supported pharmaceutical reps being paid overtime. So, even though the Department of Labor supports overtime for pharmaceutical reps, there’s no guarantee that the courts will agree with it. More lawsuits are still to come and the Supreme Court might wind up determining the whole thing in the end. As of now, though, there’s no reason for pharmaceutical representatives to give up the fight.
Thousands may have Claim for Pharmaceutical Sales Rep Overtime
March 2nd, 2011. By LucyC
Well, it looks like the little guys could have it. Yesterday, February 28, 2011, the US Supreme Court announced that it would not reconsider appellate court decisions against Novartis and Merck Schering regarding unpaid overtime class actions.
Essentially, this means that Novartis may have to pony up $100 million or more in back overtime as settlement for some 2,500 plaintiffs.
In so doing, the Supreme Court leaves intact two separate decisions against Novartis and Schering Corp. In July 2010, the 2nd Circuit issued a pair of rulings that found the pharmaceutical sales reps were covered by federal wage-and-hour law.
But—it ain’t over as the expression goes—until the fat lady sings. At least half a dozen pharmaceutical companies are tied up in overtime suits, according to various media sources, and yesterday’s US Supreme Court decision presents a major conundrum. According to the attorneys that represented the Novartis employees, the various rulings against the pharmaceutical companies have ‘opened the floodgates for liability.’ This same law firm is currently representing plaintiffs in four identical wage-and-hour lawsuits against Pfizer, Roche, Merck and Abbott Laboratories. So the bigger question is—does this decision translate into overtime requirements for all pharmaceutical sales reps? (Now we’re talking tens of thousands of workers.)
That remains to be seen, in part because the courts themselves are guilty of issuing conflicting information—other appellate court decisions have decided in favor of the employers. The reason? It’s all down to interpretation. A report in the Star-Ledger indicates that this Supreme Court ruling was partly based on a brief from the Department of Labor that supports the sales’ reps stance on qualifying for overtime pay. As far as Novartis is concerned, they intend to evaluate ‘all legal options.’ Part of an email published in the Star-Ledger, from Novartis, states, “For decades, companies in the pharmaceutical industry have classified their sales representatives as exempt employees and have compensated them on a pay-for-performance basis, the same way they compensate executives, managers and other professionals.”
And, in a brief submitted by Merck, the pharmaceutical company reportedly wrote that another appellate court concluded that “no deference was owed to DOL’s new interpretation expressed in its brief.”(Star-Ledger). Of course Merck isn’t too happy about the Supreme Court ruling either. The company inherited an overtime lawsuit against Schering-Plough, when it acquired SP in 2009.
It doesn’t help that the Supreme Court offered no comment whatsoever on its decision: an explanation making clear their reasons for their decision could have helped in reducing the likelihood of further legal wrangling—which will almost certainly occur because the stakes here are high indeed.
The Pharmaceutical Research and Manufacturers Association (PhRMA), which is the leading trade group representing the US pharmaceutical industry, had argued in its petition to the Supreme Court that the lower court’s decision had “potentially far-reaching ramifications’’ for the industry, and called the decision against Novartis an error. “The decision unexpectedly exposes PhRMA members to potentially staggering retroactive liability from lawsuits by current and former employees,’’ the brief stated. “Serious consequences loom because of nothing more than an unexplained change in the Department of Labor’s interpretation of its regulations.’’ (Star-Ledger)
Of course, none of this changes the fact that the reps who filed the suit against Novartis—more than four years ago now—did put in the time—as much as 70 hours per week, according to their lawyers.
Frankly, I can’t help thinking that the whole debate around unpaid overtime is just a little too Dickensian for 2011, and that a little more clarity would go a long way to improving the situation for both sides.
California Labor Law—What’s New for 2011
January 11th, 2011. By janem
Here are a few California labor law perks for 2011. The U.S. Department of Labor decrees that employers grant time off for women to express breast milk. The DOL’s fact sheet is posted here. Male workers are wondering if there is any legislative effort in the works to regarding equal rights in this area…they could always donate an organ and take time off.
SB 1304 provides new leave of absence rights to organ and bone marrow donors. Organ donors may take up to 30 days leave for that purpose and bone marrow donors may take up to five days leave for that purpose. The leaves are with full pay and benefits, except that the employer may require the organ donor to use up to two weeks accrued vacation/sick time and the bone marrow donor to use up to five days vacation/sick time unless doing so would violate a collective bargaining agreement.
Donors are entitled to the same or equivalent jobs when returning from leave. Further, these leave rights are independent of any rights under the Family and Medical Leave Act and the California Family Rights Act.
If you can’t stand the heat, as of Nov 4, 2010 the California Labor Commissioner issued new heat illness regulations, enforceable by CAL-OSHA, that apply to all outdoor places of employment, especially where the temperature exceeds 85 degrees Fahrenheit. Employees must be provided with shade sufficient to accommodate 25 percent of the workforce at one time, cool down periods of no less than five minutes in the shade upon request, as well as one quart of potable drinking water per hour worked.
“High heat” procedures (where the temperature reaches at least 95 degrees Fahrenheit) apply only to agriculture, construction, landscaping, oil and gas extraction, and transportation or delivery of agricultural products, construction materials or other heavy materials except for employment that consists of operating an air-conditioned vehicle and does not include loading or unloading. The new regs are posted here.
Unemployed rail workers are hopeful that California’s high-speed rail project will get the go-ahead; if so it will create thousands of jobs. The “Good Jobs Express Tour” ended, after three days and 400 miles, in Sacramento, where construction trades members rallied with the iron workers to make the case for high-speed rail and candidates, like Jerry Brown, who support it.
When Is Lunch Time? AB 569 amends California Labor Code Sec. 512 to exempt construction workers, commercial drivers, certain security officers and employees of electrical and gas corporations or local publicly owned electric utilities from California’s meal period requirements if those employees are covered by a valid collective bargaining agreement containing specified terms—including meal period—overtime and arbitration provisions.
Have you been misclassified as an independent contractor?
California, among a number of other states, has arranged information-sharing with the IRS in the area of contractor classification. The goal is that incorrect contractor classification will probably be detected and challenged with more frequency. Among the concerns for an employer who engages independent contractors is that the classification, if valid, can avoid a lot of employment and tax regulation. But at the same time, contractor classification can be a hot tamale for litigation by multiple government agencies and workers.
By now everyone knows that you can’t light that joint at work. California Proposition 19 was rejected, which means that employers may lawfully ban all marijuana use, and being under the influence of marijuana, at work. However, California law permits medicinal marijuana use prescribed by a physician.
And one more: Under the FMLA an employee who assumes the role of caring in loco parentis (in place of the parent) for a child receives parental rights to family leave regardless of the legal or biological relationship. The U.S. Department of Labor gives this example: an aunt who cares for a young niece and nephew when their single parent has been called to active military duty or a grandfather who assumes responsibility for his sick grandchild when his own child is unable to care for the child. Also, an employee who intends to share parenting responsibilities with his or her same-sex partner will be able to seek FMLA leave to bond with their child.
The above are just a handful of changes in store for 2011. California employers are advised to review and update employee handbooks and personnel practices, and train supervisors, with the advice of experienced employment counsel or human resources professionals, or a labor law attorney.
Wal-Mart Class Action Classless? wait and see…
December 9th, 2010. By LucyC
Wal-Mart’s making employment news again. Seems like they’re never really out of the news. You have to hand it to them—at least they’re consistent—consistently at odds with their employees, that is.
This time Wal-Mart has the auspicious honor of facing what could be the largest sex-discrimination case in US history, if the US Supreme Court, which agreed on Monday to examine the class-action at Wal-Mart’s behest, says the lawsuit can proceed as a class action.
But this story started almost a decade ago, when the suit was originally filed. The allegations are that Wal-Mart paid its female employees less than its male employees and gave them fewer opportunities for promotion. Not very original, but also not very surprising, given the retailer’s track record.
Wal-Mart objects to the case being allowed to go forward as a class action because of its size, and because the women involved reportedly worked at thousands—yes thousands of different stores—with potentially different issues.
However, all this hinges on the definition of a “class”. The larger issue at play here, and one which is being watched closely, is how a “class” is defined. Wal-Mart’s petition is being supported by other large players including Bank of America Corp, General Electric Co. and Microsoft Corp. According to a piece in the Wall Street Journal, these companies say that an earlier ruling by the Ninth U.S. Circuit Court of Appeals, which essentially authorized the class action suit to proceed, could, if allowed to stand, “expose other companies to staggering liability by allowing unrelated discrimination claims to proceed as class action suits.”
Wal-Mart claims the Appeals Court misapplied the standards for defining a class, and as a result has left it exposed to punitive damages when it should be liable only for back pay. (WSJ)
So the Supreme Court has agreed to review whether the potential plaintiffs in the class have enough in common to warrant a ‘class action’—that their claims can be fairly decided in a single action.
Just as an aside, and for those of us not up on the ins-and-outs of class actions—this particular type of lawsuit combines multiple claims against a common defendant or defendants, into a single claim. This enables the courts to provide redress for large-scale ‘wrongdoing’ where it might not be possible on a case-by-case basis. We have a very comprehensive FAQ on class actions.
Back to Wal-Mart. Lawyers representing the ‘class’ allege that the retailer victimized its female employees through a ‘centralized corporate culture’ and are, therefore, entitled to be represented in a class.
If the Supreme Court finds against Wal–Mart in its review of the case, and allows the suit to proceed as a class action, the class could involve as many as 1.5 million plaintiffs. The potential pay out could be billions in damages and back-pay. And there’s the rub.
BTW—this wouldn’t be the first time Wal-Mart has faced a discrimination class action. They were recently sued over workplace discrimination involving Latino employees at a Sam’s Club in Fresno, California, alleging a hostile work environment. The plaintiffs claim they were verbally harassed, including having derogatory words used against them. The lawsuit was filed by the Equal Employment Opportunity Commission (EEOC), which, according to Al Norman, writer with The Huffington Post, “does not file a suit unless it has given up trying to work out a voluntary agreement with a company.”
So, the Supreme Court justices will make a ruling on the class action issue—which will determine how the suit—or suits—proceed. But the arguments likely won’t be heard until the spring, and a ruling not made until the summer of 2011. Not to seem dark in any way, but some plaintiffs could be dead by the time this matter is finally settled.
And Wal-Mart does have the motivation and the bucks to drag this out. According to a report in the Wichita Business Journal “Wal-Mart Stores Inc. reported a profit of $3.4 billion, or 95 cents per diluted share, on sales of $101.2 billion for the quarter ending Oct. 31. That compares to income of $3.1 billion, or 82 cents per diluted share, on revenue of $98.7 billion for the same quarter last year.”
Wal-Mart, in addition to being an employer of ill-repute—also seems to be recession proof—on the backs of its employees.
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