A federal court in California has determined that the tasks an employee performed only when working the closing shift for Starbucks Corp. consumed a de minimis amount of time and thus dismissed his claims that the company violated the state Labor Code by failing to pay him for that time. Troester v. Starbucks Corp., No. 12-7677 (C.D. Cal., order entered March 7, 2014). According to the court, the software Starbucks used during the relevant time period required an employee to clock out before initiating the store closing procedure, which involved setting the store alarm and locking the door, tasks that took no more than one to two minutes. Other tasks the employee undertook included walking employees to their cars or staying with them until they were picked up, placing forgotten patio furniture indoors, or even re-entering the store to retrieve an employee’s personal belongings. In the court’s view, “[e]ven assuming all…
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A former Chiptole Mexican Grill employee has brought a wage-and-hour complaint against the company, including claims of harassment, gender discrimination, retaliation, battery, and wrongful termination. Roberts v. Chipotle Mex. Grill, Inc., No. BC537487 (Cal. Super. Ct., Los Angeles Cty., filed February 26, 2014). Filing on behalf of herself and in a representative capacity on behalf of others, plaintiff Tedi Roberts claims that Chipotle (i) failed to pay legally required overtime or compensation for hours worked; (ii) failed to provide legally required meal periods and rest periods or accurate wage statements; (iii) failed to take action when she complained about sexual harassment and battery; (iv) refused to change her schedule or provide a transfer to help her avoid further harassment, battery, embarrassment, and humiliation; and (v) retaliated against her—terminated her employment—for complaining about the conditions of her employment including through the “protected activity” of social networking. Roberts avers that she has…
A California appeals court has affirmed the dismissal of Proposition 65 (Prop. 65) lawsuits filed against fast-food restaurants by the vegetarian and animal-rights advocacy organization Physicians Committee for Responsible Medicine (PCRM), finding that the organization failed to conduct the requisite investigation into the warning signs posted in the defendants’ restaurants before certifying the merit of its 60-day notices to the companies, attorney general and local prosecuting entities. PCRM v. Applebee’s Int’l, Inc., No. B243908 (Cal. Ct. App., decided February 27, 2014). At issue were warnings about the chemical PhIP, known to the state to cause cancer, created during the chicken grilling process. Details about the lower court’s ruling appear in Issue 450 of this Update. Reciting the lengthy litigation history, which involved a number of amended complaints, the court emphasized the statements that the plaintiff’s counsel made during hearings on demurrers to the pleadings and deemed them binding admissions that…
Subway has reportedly announced plans to remove azodicarbonamide from its breads after a food blogger’s petition criticized the restaurant chain for including “the same chemical used to make yoga mats, shoe soles, and other rubbery objects” in its U.S. products. Owned by Doctor’s Associates Inc., Subway apparently released a media statement confirming that it had started phasing out the ingredient before FoodBabe.com’s Vani Hari launched her campaign, which garnered 60,000 signatures and sent readers to the company’s Facebook page to complain. “We are already in the process of removing azodicarbonamide as part of our bread improvement efforts despite the fact that it is a USDA [U.S. Department of Agriculture] and FDA [Food and Drug Administration] approved ingredient. The complete conversion to have this product out of the bread will be done soon,” a Subway spokesperson was quoted as saying. See Associated Press and CNN, February 6, 2014; The Independent, February…
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
Mafrash Attias has reportedly filed a putative class action against McDonald Israel alleging that the company cheats consumers by putting less ice cream into its ice cream cups. According to the complaint, Attias found that the contents of two sizes of the company’s “Ice Blast” product, with an NIS 2 shekel price (US 50 cents) difference, are nearly always barely distinguishable in weight or volume. He has also apparently alleged that the large size sometimes holds less ice cream than the less expensive smaller alternative and that the McDonald’s marketing pitch is to encourage customers to “size-up” for “only” 2 additional shekels. The named plaintiff reportedly submitted samples from several McDonald’s stores to the independent, Jerusalem-based Forensic Science Institute for testing. According to a news source, its report is attached to the complaint. The plaintiff seeks NIS 24.5 million (about US $7 million). See Jewish Business News, December 9, 2013…
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…
Finding that individual issues predominate over common ones in a putative class action alleging that Chipotle Mexican Grill sold conventionally raised meats despite advertising its use of “naturally raised” meats, a federal court in California has denied the plaintiff’s motion for class certification. Hernandez v. Chipotle Mexican Grill, Inc., No. 12-5543 (C.D. Cal., order entered December 2, 2013). Additional details about the case appear in Issue 451 of this Update. According to the court, when and where a class member ate at Chipotle and which meat she ate can only be handled individually. The court deemed these issues significant because the allegations are based on the company’s in-store menu signboards and paper menus and because the dates on which “naturally raised” meats were unavailable to specific stores varied over the course of five years. The court also noted that when Chipotle experienced “naturally raised” meat shortages, it would instruct individual…
A federal court in California has denied the motion to dismiss putative class claims that Jamba Juice falsely labels its frozen smoothie kits as “all natural,” finding that while the plaintiffs lack standing to assert claims related to products they did not buy, “they may seek to represent a class of people who have purchased those products, as long as all plaintiffs, named and absent, have standing in their own right, and as long as the prerequisites to class certification are satisfied.” Lilly v. Jamba Juice Co., No. 13-2998 (N.D. Cal., order entered November 18, 2013). The court will address whether the named plaintiffs may represent the proposed class at class certification and ordered them to file their certification motion by February 3, 2014.
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.”…
