A National Labor Relations Board (NLRB) judge has determined that Sprouts Farmers Market violated federal labor law by requiring employees to sign mutual binding arbitration agreements (MAAs) that preclude class or collective-action claims in arbitration or otherwise as a condition of hiring and continued employment. SF Mkts, LLC d/b/a Sprouts Farmers Mkt., Nos. 21-CA- 099065, -104677 (NLRB Div. of Judges, Atlanta Branch Ofc., decided February 18, 2014). The issue arose from two cases: in the first, Jana Mestanek filed wage-andhour claims against the employer in court, and it sought to compel arbitration under the MAA to which she had agreed; in the second, Laura Christensen was fired for refusing to sign an acknowledgement of an employee handbook supplement agreeing to the terms of a revised MAA. At issue was whether D.R. Horton, Inc. (Horton), 357 NLRB No. 184 (2012), enfd. in part, denied in part, 737 F.3d 344 (5th Cir.…
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The U.S. Occupational Safety and Health Administration (OSHA) has issued an interim final rule to establish procedures for handling retaliation complaints brought by whistleblowers who gained new protections under section 402 of the Food Safety Modernization Act (FSMA). Effective on February 13, 2014, the interim rule establishes procedures and time frames applicable to retaliation complaints, including rocedures and time frames for employee complaints to OSHA, OSHA investigations, appeals from OSHA determinations, administrative aw judge (ALJ) hearings, Administrative Review Board review of ALJ decisions, and judicial review of the labor secretary’s final decision. omments on the interim final rule are requested by April 14, 2014. FSMA protects employees from retaliation “by an entity engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food,” if the employees either provided or are about to provide their employer, the federal government or a state attorney general with information about Food,…
Following complaints that the Occupational Safety and Health Administration (OSHA) had improperly attempted to enforce workplace safety rules on farms with 10 or fewer employees, the U.S. Department of Labor (DOL) has assured members of the House Education & the Workforce Committee that OSHA will withdraw a June 2011 memorandum to regional administrators and state plan designees about limitations on their authority to “conduct enforcement activities at small farming operations during OSHA’s grain safety campaign.” DOL plans to issue new guidance in consultation with the U.S. Department of Agriculture and organizations representing farmers. Committee members contended that OSHA’s memorandum redefined “farming operations” to allow OSHA inspectors onto family farms. Their January 2014 letter stated that under OSHA’s “new and unprecedented logic, it appears anything outside of the actual growing of crops and raising livestock could be deemed ‘non-farming operations’ that would subject family farms to OSHA inspections. The guidance is…
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has proposed adding a regulation to Title 27 of the California Code of Regulations to “clarify the procedure and criteria OEHHA uses to list and de-list chemicals via the ‘Labor Code’ listing mechanism of Proposition 65.” A public hearing on the proposal has been slated for March 21, 2014, and comments are requested by April 4. OEHHA maintains the list of chemicals known to the state to cause cancer or reproductive toxicity under the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65). Chemicals may be added to the list through one of four ways, including those that have been identified by reference to certain subsections of the California Labor Code. While OEHHA has established regulations setting forth general criteria for listing chemicals via the other listing mechanisms, it has not previously done so for the Labor Code mechanism.…
A putative class of workers employed by Benihana Inc. in its New York City-based Haru Restaurants has filed an unopposed motion for preliminary approval of an agreement that would resolve claims that the company did not pay employees all the pay to which they were entitled and did not provide certain employees with valid tip credits. Lin v. Benihana Nat’l Corp., No. 10-1335 (S.D.N.Y., motion filed January 14, 2014). Under the agreement, the company would create a $600,000 settlement fund that would reimburse certain class members the full amount of their spread-of-hours premium and other members 80 percent of purported back pay due to an invalid tip credit. Under New York law, employees who work more than 10 hours during a work day are entitled to an extra hour of pay, referred to as spread-of-hours wages. Attorney’s fees and expenses would also be paid from the fund. Issue 510
Some four years after the U.S. Equal Employment Opportunity Commission (EEOC) accused several Ruby Tuesday, Inc. restaurants in Pennsylvania and Ohio of engaging in a pattern or practice of age discrimination against 40-year-old or older job applicants, Ruby Tuesday agreed to settle the claims, without admitting any liability. EEOC v. Ruby Tuesday, Inc., No. 09-1330 (W.D. Pa., consent decree approved December 9, 2013). The company will pay $575,000 into a qualified settlement fund account to provide back pay and statutory damages to eligible claimants, designate a decree compliance monitor to ensure compliance with the terms of the agreement, establish hiring and recruitment goals for individuals in the protected age group, adopt and maintain an electronic applicant tracking system, audit compliance, and report to EEOC. The company has also agreed to provide sufficient training regarding the decree, will report age-discrimination complaints to EEOC and retain certain records to resolve claims that…
In a summary order, the Second Circuit Court of Appeals has affirmed a lower court’s dismissal of employee claims that Starbucks Corp. violated New York law by allowing shift supervisors to share store tip pools with baristas. Barenboim v. Starbucks Corp., No. 10-4912 (2d Cir., decided November 21, 2013). Details about the New York Court of Appeals ruling on which the Second Circuit relied appear in Issue 489 of this Update. The New York court rejected the baristas’ claims that state law barred “any employee with ‘even the slightest degree of supervisory responsibility’ from sharing tips.” Because it was “undisputed that Starbucks’s shift supervisors spend a majority of their time performing the same duties as baristas, and are primarily responsible for serving food and beverages to customers,” the Second Circuit found “no genuine dispute of material fact as to whether § 196-d permits shift supervisors to participate in Starbucks’s tip pools.”…
Subject to court approval, Frito-Lay will pay $1.6 million to settle wage-andhour claims filed on behalf of current and former employees who deliver its products to stores and arrange the store displays. Elliott v. Rolling FritoLay Sales, LP, No. 11-1730 (C.D. Cal., filed November 9, 2011). A hearing on the plaintiff’s motion for preliminary approval will be held December 23, 2013. The plaintiff alleged that Frito-Lay did not pay all the wages owed for overtime hours worked, provide duty-free meal periods and rest breaks, provide accurate itemized wage statements, or pay all wages due on cessation of employment to its route sales associates (RSAs), merchandisers and detailers. According to the plaintiff, Frito-Lay calculated overtime pay “using an illegal fluctuating workweek rather than California’s mandated forty hours workweek. The effect of utilizing the fluctuating workweek is that the more hours Plaintiff and RSAs work in excess of forty hours, the lower their…
A federal court in California has given final approval to the settlement of a wage-and-hour class action against Starbucks Corp., including less than half of what plaintiffs’ counsel originally requested as attorney’s fees. York v. Starbucks Corp., No. 08-7919 (C.D. Cal., decided October 29, 2013). Starbucks apparently objected to the request for nearly $4.5 million, excluding nearly $250,000 in unreimbursed costs, characterizing it as “astonishing.” Thereafter, the parties agreed to attorney’s fees and costs of $1.9 million, and the court found the request reasonable. Under the agreement, 14,800 employees will receive payments of up to $900, for a total of $3 million, for alleged denial of statutorily mandated meal breaks and wage statements that failed to list the applicable overtime rate in violation of the California Labor Code. See Law360, October 28, 2013.
As the fiscal year came to a close and on the eve of the federal government shutdown, the Equal Employment Opportunity Commission (EEOC) filed nearly two dozen employment discrimination lawsuits including one against GMRI, Inc. alleging discrimination based on sex on behalf of a class of women employees at a Salisbury, Maryland, Red Lobster Restaurant. EEOC v. GMRI, Inc., No. 13-2860 (D. Md., filed September 30, 2013). According to the complaint, the defendant’s former culinary manager created a sexually hostile and offensive work environment for the two women who filed the complaint as well as “other similarly situated female employees” by engaging in frequent sexual touching, sexual comments, sexual advances, and vulgar sexual conduct. The conduct, which was allegedly “open and notorious and occurred on a frequent and routine basis,” was purportedly condoned by a former general manager who “himself had a history of making sexually charged and vulgar comments…
