Jury awards $3.8M to woman; Employer argued her breastfeeding schedule was 'excessive'

An Arizona jury has sided with a breastfeeding paramedic, awarding the nursing mother $3.8 million for her lawsuit alleging she wasn't provided a lactation space as required by federal law.

Carrie Ferrara Clark sued the City of Tucson Fire Department, alleging that it violated federal employment laws when it failed to provide her with an appropriate lactation room on a consistent basis and when it retaliated against her for complaining about the issue. Her lawsuit alleged that the fire department's scheduler said he didn't believe she deserved any special accommodations. The HR manager also recommended that she use fire chiefs' and captains' bedrooms for pumping as needed, but Clark explained that waking up her supervisors every 2 to 3 hours seemed unreasonable. HR then told her "your pumping seems excessive to me.” When she tried to explain that such a schedule was normal for a newborn, the HR manager replied "well, it seems to me that you're not fit for duty."

A jury found the employer liable for discrimination and retaliation, awarding her $3.8 million. It found, among other things, that the employer discriminated against her because she was breastfeeding and that it assigned her to fire stations that did not have a space that complied with federal requirements for expressing breast milk.

The Fair Labor Standards Act (“FLSA”) states that employers are required to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” Employers are also required to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”

Employers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time.

Learn More:

• US Department of Labor Fact Sheet re Break Time for Nursing Mothers under the FLSA

• Verdict Form

Docking Pay From Salaried, Exempt Employees Is Illegal...And Very Common

The Fair Labor Standards Act (FLSA) is the federal law the controls the terms under which employees must be paid overtime. All employees fall into one of two categories "Exempt" or "Non-Exempt". If an employee is non-exempt, when they reach more than 40 hours in a given work week, they have to be paid at time and a half for any additional hours. If they are non-exempt), they aren't eligible for overtime. Most people think of non-exempt employees as "hourly" and exempt employees as "salaried".

• Pro-Tip: Just because your employer pays you as salaried does not necessarily mean that you should be considered exempt and not entitled to overtime. Exempt employees are typically involved in management or high-level administration of the business. There are other exceptions as well but a good rule of thumb is this: if you are more like a rank and file line worker or clerical worker, you should probably be getting overtime. If you aren't you need to find a good employment lawyer.

As a general rule exempt employees are paid a salary and don't have to be paid overtime no matter how many hours they work. But there are other rules that come that exempt status. One important one that employers often ignore is the rule against docking pay.

Exempt employees who are late or who need to leave work early - for doctor's appointment, child care, whatever - cannot have their pay docked for missing a couple of hours of work. If an exempt, salaried employee shows up for work, even if it's just for 15 minutes, he or she must be paid for the entire day. That's the rule.

The employer can discipline, fire, or demote the employee. But it cannot dock the employee's pay.  Importantly, the employer is allowed to dock vacation time and force the employee to use that to cover the hours missed. But the employees pay may never be docked.

So what happens if the employer breaks this rule and docks pay? Well then the employer has just lost the FLSA "exemption" as to that employee. This means the employee is owed overtime for all hours over 4o worked in the last two years plus all overtime worked in the future. This can add up to a substantial amount.

So, long story short is this: If you are paid by salary and your employer docks your pay for being late or missing a few hours of work here or there, you should contact an employment lawyer right away. Your employer is taking advantage of you and breaking the law. You may be owed a substantial amount of overtime pay.

"Service Fees" Can Confuse Matters for Tipped Employees

Tipped Employees

While most restaurants leave it up to their customers to decide how much to tip their servers, and increasing trend among some restaurants is to include a mandatory gratuity or “service fee” on their bills. Sometimes this is done only for groups of six or more patrons. Other times it is included as an extra charge when customers purchase a banquet package or other private dining option.

Mandatory gratuities or services fees are legal only under certain circumstances and only if handled properly by the employer. In some states, such fees are only legal if the money is used for the sole purpose of paying the server. Under the FLSA, service charges must be counted as income on the books of the restaurant, and then they may be used to pay servers or for other purposes. In no event, however, may servers be paid less than the minimum wage.

Other common issues tipped restaurant workers face include:

• Requiring servers and bartenders to contribute a percentage of tips to a tip pool, but using the tips to pay employees who are not customarily tipped, such as custodial, management, or kitchen workers.

• Denying overtime pay to employees who worked at more than one restaurant owned or controlled by the same company, even when their combined hours totaled more than 40 hours in one workweek.

• Having employees work off-the-clock, earning only tips for their labor. Even if tipped employees receive most of their pay through tipping, the employer still must pay them at least $2.13/hour in cash wages on top of whatever tips they may earn.

If you have a question about how a tipped employee should be paid or if you think your employer is violating the FLSA, visit my main website to learn more.

Supreme Court Rules 6-2 Against Tyson -- Workers Win Millions in Back Pay

Supreme Court Rules For Workers in Pay Dispute

In a victory for American workers, the Supreme Court last week upheld a $5.8 million judgment against Tyson Foods in a pay dispute with more than 3,000 workers at a pork-processing plant in Iowa. You can read the opinion in Tyson Foods v. Bouaphakeo here.

The justices voted 6-2 on to reject new limits Tyson asked them to impose on the ability of workers to band together to challenge pay and workplace issues. The case revolved around the question of whether the workers could bring a class action case. Tyson argued that since each employee spent a different amount of time putting an gear and removing it, they shouldn't be able to sue as a group using "representative evidence" to prove up their case. The court rejected that argument.

“In many cases,” according to the Court majority opinion, “a representative sample is ‘the only practicable means to collect and present relevant data'” to prove that the company being sued was legally at fault.   The opinion went on to provide some guidance to when such evidence would be allowed in such cases.

In this case, the Court was more content to allow such evidence because Tyson Foods had not obeyed its legal duty to keep records on how much each worker had worked as overtime.  Without such records, the employees had to marshal other evidence, and the sample was the best proof available to them.

The case is notable because it represents at least a small opening in the legal wall against group actions that the Supreme Court has been steadily building over the last several years.

Read more:

• The class action is dead … long live the class action! #SCOTUS upholds “representative samples” for class certification

• Tyson Foods workers win $3 million in back pay

• Award Against Tyson Foods in Iowa Pay Dispute Upheld - ScotusBlog

Wage Theft Costs American Workers as Much as $50 Billion a Year

Wage theft is a nationwide epidemic that costs American workers as much as $50 billion a year, a new Economic Policy Institute report finds. In An Epidemic of Wage Theft Is Costing Workers Hundreds of Millions of Dollars a Year, EPI Vice President Ross Eisenbrey and EPI intern Brady Meixell examine incidences of wage theft—employers’ failure to pay workers money they are legally entitled to—across the country. The total amount of money recovered for the victims of wage theft who retained private lawyers or complained to federal or state agencies was at least $933 million in 2012, almost three times greater than all the money stolen in robberies that year. However, since most victims never report wage theft and never sue, the real cost of wage theft to workers is much greater, and could be closer to $50 billion a year.

“Wage theft affects far more people than more well-known crimes such as bank robberies, convenience store robberies, street and highway robberies, and gas station robberies combined, and can be absolutely devastating for workers living from paycheck to paycheck,” said Eisenbrey. “For low-wage workers, the wages lost from wage theft can total nearly 10 percent of their annual earnings.”

The authors also conducted a study of workers in low-wage industries in New York, Chicago, and Los Angeles and found that in any given week, two-thirds experienced at least one pay-related violation.  They estimate that the average loss per worker over the course of a year was $2,634, out of total earnings of $17,616. The total annual wage theft from front-line workers in low-wage industries in the three cities approached $3 billion. If these findings are generalizable to the rest of the U.S. low-wage workforce of 30 million, wage theft is costing workers more than $50 billion a year.

Read More:

Click here for a copy of the entire report.

Theoretically related posts:

Courts Make it More Difficult for Employees to Pursue Tip Theft by Employers

Wal-Mart Sued for Wage Theft

“Wage Theft”: The Trendy Phrase That May Not Mean What You Think It Means - From Daniel Schwartz's always excellent Connecticut Employment Law Blog

Wage Theft and Misclassification Report - Contains state by state grades.

Ninth Circuit Holds FedEx Drivers are Employees, Not Independent Contractors

Many will be surprised to learn that for years FedEx has treated its delivery drivers as independent contractors rather than as normal employees.

Why you ask?

The answer is simple: Money.

FedEx avoided health care costs, workers compensation insurance payments, paid sick leave and vacation, retirement costs and more. FedEx made drivers pay for their  FedEx-branded trucks, FedEx uniforms, and those little hand-held scanners they use. And don’t forget fuel, insurance, tires, oil changes, maintenance, even workers’ compensation coverage.

That all adds up to a lot of money. And that’s why these decisions out of the Ninth Circuit Court of Appeals are such a big deal. A three-judge panel of the appeals court ruled that FedEx drivers were employees “as a matter of law” under both California and Oregon law and “FedEx’s labeling of the drivers as ‘independent contractors’ in its operating agreement did not conclusively make them so.”

While I do not practice in California or Oregon, the tests at issue in these decisions do not appear all that different from the tests most other states that I am familiar with use to determine employee vs. independent contractor issues. And that fact could spell big trouble for FedEx and other employers attempting this strategy.

These decisions are part of a slowly-increasing level of scrutiny from the courts towards corporate efforts to save money by characterizing front-line workers as independent contractors and thus avoid normal employment costs.  In another recent decision, the National Labor Relations Board’s general counsel issued an opiniondeciding to treat McDonald’s Corp. as a joint employer of its franchisees’ fast-food workers for the purposes of NLRB violation claims.

FedEx has already indicated that it plans to appeal these decisions.