Ottinger Files: The Times They are A-Changin’

(MLK Edition)

January 22, 2015

Quote of the Day:  “True compassion is more than flinging a coin to a beggar. It comes to see that an edifice which produces beggars needs restructuring.”    Martin Luther King, Jr.

He Had a Dream

What Happened?

Martin Luther King, Jr. day is different this time.  Racial tension rises and MLK day takes on a new meaning. Ferguson.

Why Does it Matter?

“What, to the American slave, is your Fourth of July,” asked Frederick Douglass on July 5, 1852.  And, “What, to the Black American, is Martin Luther King, Jr. Day,” asks Chris Lebron on January 18, 2015 in the New York Times.   It is right to celebrate the man because he was a hero who died for his cause.  But it is wrong to celebrate the end of racism in America.

The File

Martin Luther King, Jr. moved the needle.  But we aren’t done yet.

 Apple and Google Finally Agree on Something

What Happened?

Apple, Google, Intel, and Adobe agreed to settle a wage fixing class action brought by Silicon Valley technology workers.   The suit claims that Steve Jobs created a cartel that illegally limited the salaries of technology workers.

Who Cares?

The case covers 64,000 Silicon Valley technology workers who each are owed as much as $100,000 each.   The companies, as usual, deny the allegations but at the same time have offered hundreds of millions to settle the case.   They previously agreed to settle the case for $324.5 million, but Federal Judge Lucy Koh rejected the deal. Now the companies have increased the amount to $415 million and filed a second request for approval last week.   We still do not know if Judge Koh will approve it this time.  Under this deal, each class member will get $5,200.   Not bad, but it’s still pretty light because each class member is technically owed a lot more, possibly as much as $100,000 each.  Class members care if you are wondering…

The File

We think Apple and Google should buy a Tesla for every class member, just sayin’


What to Think when the Academy Awards Cannot Spell the Name of an African-American Actress ….

“SELMA” – snubbed by the Oscars not just for acting, but also for directing.  Nominated for Best Picture and Best Original Song.  Seriously, Best Original Song??   MLK day earlier this week, the recent Ferguson Verdict, “I Can’t Breath,” and The Academy couldn’t seem to find a place for Selma?  Seems odd, no?  Are they worried about racial riots on the red carpet?  Party dresses getting ruined?  Or is it because the Oscars gave too many statues to black actors last year for “12 Years A Slave?”  9 nominations for “Birdman” and 9 for “The Grand Budapest Hotel” – come on, Mr. Academy!  And the Oscar goes to the best whitey…  Maybe 2016 will be the year of diversity – LOL!?  Seems it is one year for African-American actors and the next three to four years for the Caucasians.  Maybe the Lego man will make an African-American Oscar for Selma as they certainly deserve several statues.  Jump back in time a bit, Denzel Washington winning an Oscar for being a dirty cop in 2001 in Training Day and Cuba Gooding, Jr. winning an Oscar in 1996 for Jerry Maguire?  Note the timing between the black actor wins and the whitey wins – hmmm…  What has happened to the Oscars and their rating or lack there of – clearly it’s gone downhill.  Selma’s actors not even nominated – a crying shame…

What to Think when You Hear “Raise the Minimum Wage.”  

Governor Cuomo wants to raise the minimum wage in New York State to $10.50 and NYC to $11.50.  Go Cuomo!!!  I’m on the Cuomo team if I’m a working for the man.  Hold onto your hat, it may not happen until the end of 2015.  Will Cuomo be able to actually raise the wage?  Does he have permission from his Republican counterparts?  Isn’t that always the major roadblock?  If you are a small business owner, you may feel differently.  Raising the wage might lead to fewer job opportunities.  The businesses will be dealing with larger overhead costs from higher wages.  There is always the plus side to this, too, that we haven’t discussed yet: a student loan forgiveness plan.  Pay attention students (and parents) – you, too, could benefit in the long run.

What to Think when Tom Colicchio’s Delivery Workers File a Wage Suit 

Two female delivery workers at Witchcraft sued Colicchio claiming they have been cheated out of tips and overtime pay.  And they describe a hostile work environment where they  are routinely referred to as “bitch” and “whore.”   So be nice to the delivery people and give them a nice tip next time you order take out from Witchcraft.  You never know what “special sauce” might be added to your delivery if you aren’t kind and dole out a few extra dollars.  It’s certainly worth it for you!

 Take Your Asshat Off and Be You

“Use it or lose it” vacation policies are legal in New York and California so use it, if you got it.

On Call Pay Ruling in California – Pay for Sleep Time

on call payOn call pay is now required for employees who are required to sleep on the job site.  We expect this ruling to impact nurses, home healthcare workers, security guards and other workers who are required to spend several days on a job site.
On call pay can add up for these employees and those late hours often require overtime pay as well.   The end result is that many nurses, home healthcare workers and security guards will wind up being paid time and half for sleeping.   Great work if you can get it.

On Call Pay for Certain San Francisco Bay Area Employees

This new on call pay rule came from a recent California Supreme Court decision.   As explained below, this case involved security gaurds who were required to spend several shifts on the job site.  (You can read the Court’s decision here).  The bottom line for San Francisco and Bay Area employees is that you are entitled to be paid for all time spent on the job site, even if you are sleeping.   Don’t take this the wrong way though, sleeping has to be part of the job.

Impact on Overtime Pay in San Francisco Bay Area

San Francisco and Bay Area Employees who are not being paid for on-call time or sleep time may not only be entitled to pay for that time, but will likely be entitled to overtime pay as well. Many Bay Area employees who work more than 8 hours a day are entitled to overtime pay of 1.5 times their hourly rate of pay.  Adding more hours worked to a day will entitle San Francisco Employees to overtime pay for those hours.  More information on overtime pay requirements can be found here.

On Call Pay for California Security Guards

In the case the Court considered, the employer hired security guards and required that after working a regular 8 hour shift, the guards remain on-call for an 8 hour shift, and then the guards were given an 8 hour sleep shift during which they were required to remain on the work site.  The employer only paid the guards for the on call payregular 8 hour shift plus any time actually worked during the on-call shift, but refused to pay for any sleep time.  The court explained that the guards were still subject to their employers control during the on-call shift even though the workers were allowed to read, watch TV or engage in other personal activities because they were not allowed to leave the work site.  Similarly, the court explained that the employer could not deduct the 8 hours of sleep time because the guards were still subject to the employer’s control during that time.


If you are a San Francisco or Bay Area Employee who works on-call shifts or is required to sleep on a work site you may be entitled to be compensated for that time.  If you have questions about your right to on call pay, please contact us for a free case evaluation.  We have offices in San Francisco and can also arrange a free consultation.

New San Francisco Minimum Wage Law is Enacted

san francisco minimum wageEmployees who work in San Francisco are entitled to the San Francisco minimum wage.  Starting January 1, 2015, the San Francisco minimum wage will begin increasing until it reaches a minimum wage of $15.00 per hour in 2018.  The first increase to $11.05 per hour will occur on January 1, 2015.  A second increase will take place on May 1, 2015, which will further raise the minimum wage for employees in San Francisco to $12.25 an hour.  The minimum wage will then increase every year until it reaches $15.00 per hour in July 2018.

San Francisco Minimum Wage Law also impacts Overtime Pay

This means that not only must employers pay San Francisco employees the new increased minimum wage, but that employees in San Francisco are also now entitled to a corresponding increase in their overtime compensation rate.  Employees entitled to overtime compensation who are earning the minimum wage will see an increase in their overtime rate as well.   
If you are employed in San Francisco and are not being paid at least $11.05 per hour as of January 1, 2015 your employer may be violating the law and you could be entitled to additional compensation.  For more on this new law, see the article in Money Magazine.
Other Bay Area cities such as Oakland and Berkeley have also recently voted to raise their minimum wages as well.  These laws are similar to the San Francisco minimum wage law.  Oakland’s minimum wage will increase to $12.25 per hour in March 2015, and Berkeley’s minimum wage increased to $10.00 per hour in October 2014. 
For those not in San Francisco, Berkeley or Oakland, your city may have its own local minimum wage requirements, which we are happy to discuss with you.  At a minimum, all employees in the State of California must be paid the California State minimum wage, which is $9.00 per hour as of July 1, 2014, and will increase to $10.00 per hour onJanuary 1, 2016.  Employees are also entitled to protections provided by the FLSA or Fair Labor Standards Act, which is the federal law that sets the minimum level for employee protection across the country.
To learn more about your employment rights please, please Contact Us.   Our San Francisco employment lawyers are available to help you with any wage related issues.

CVS Overtime Pay Suit Settles for $900,000 – Ottinger

cvs overtime pay suit


The CVS overtime pay suit involving nearly 2300 warehouse employees settled for $900,000.  The employees alleged that they were not compensated for time spent waiting for security screening in order to enter and exit the warehouse facility and time spent changing into their work aprons.

The judge has been asked to approve the terms of the CVS overtime pay suit.   Under the proposal, the class representatives will receive $10,000 and $7,500.  The proposed deal also includes $270,000 in attorneys’ fees. $15,000 in litigation costs, $7,500 in penalties to the California Workforce Development Agency, and $31,000 for the costs of class administration.

Allegations Of The CVS Overtime Pay Case

The CVS overtime pay suit consists of warehouse employees who worked for CVS from October 9, 2008 through July 7, 2014.  They allege that CVS failed to compensate them for work performed before and after their shifts.  Specifically, the employees, whose job duties consisted of stocking shelves, processing orders and packaging and shipping merchandise, claimed that they were required to wait in turnstile lines in order to enter the facility before starting their shifts and after their meal breaks, and were then required to change in locker rooms before they could clock in for their shifts.  They further claimed that, at the end of their shifts, they were again required to wait in turnstile lines to undergo a mandatory security screening to protect against theft.

According to the employees, these lines could be long and, as a result, they estimated that they lost around 15 to 20 minutes per day, in some instances resulting in an entitlement to overtime pay.  This is similar to the claim made by the Apple retail employees in a separate suit.  The Apple employees claimed that they too were forced to wait in security lines and were not paid for that time.

The CVS overtime pay suit was brought under the California Labor Code and the federal Fair Labor Standards Act alleging an entitlement to both unpaid wages and overtime compensation.

Legal Issues in the CVS Overtime Pay Case

As in the Apple case, the primary legal issue in the CVS overtime pay case is whether the time spent waiting to go through the lines at the beginning of a shift and after meal periods, changing into their work aprons, and waiting to go through a security screening at the end of the workday constituted working time.  The law is clear that an employee must be paid for all hours worked.

Under the Portal-to-Portal Act, employees are not generally entitled to compensation for activities that are “preliminary and postliminary ” to their work.  However, such activities are compensable if they are “an integral and indispensable part of the principal activities.”  The Ninth Circuit adopted a three-step approach to determine when an activity is compensable: (1) whether the activity constituted “work,” (2) whether the activity was an “integral and indispensable” duty, and (3) whether the activity was de minimis.  See Bamonte v. City of Mesa, 598 F.3d 1217, 1224 (9th Cir. 2010).  “Work” is defined as “physical or mental exertion… controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer.”   Alvarez v. IBP, Inc., 339 F.3d 894, 902 (9th Cir. 2003).  An activity is “integral and indispensable” if that activity is “necessary to the principal work performed and done for the benefit of the employer.”  Finally, an activity is de minimis if “the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours” and so “such trifles may be disregarded, for split second absurdities are not justified by the actualities or working conditions or by the policy of the [FLSA].”  Generally, employees cannot recover for otherwise compensable time if it is de minimis.

Donning and Doffing of Work Aprons

 There are a number of cases involving whether time spent changing into work uniforms is compensable.  These cases refer to “donning and doffing” of work attire.  At issue in the CVS overtime pay case was the donning and doffing of work aprons.  The plaintiffs claimed that they were prohibited from clocking in until they had changed into their work aprons and, therefore, were not paid for that time.  Cases finding donning and doffing time compensable consider factors such as whether the employee was required to change at the plant and only at the plant, and whether the employee was prohibited from leaving work wearing the uniform.  Courts also consider how essential the uniforms are to the work performed, and whether the uniforms consist of “non-unique protective gear.”  In cases involving “non-unique protective gear,” the de minimus doctrine will generally preclude compensation unless the particular gear is so integral and essential to the work performed that the time must be compensated.

Mandatory Security Screenings

Another issue in the CVS overtime pay case is whether the time spent waiting to undergo a mandatory security screening was compensable.  Several courts have addressed this issue and a primary consideration is whether the time spent is de minimis because of the difficulty in recording the trivial fraction of time it takes for an employee to go through the screening.  As a result, unless it can be demonstrated that the security screening is “integral” to the work performed,  the time will often be deemed non-compensable.

For more information on your rights, see our overtime pay section.   We offer free consultations and have offices in San Francisco and New York.


For more information on California wage and hour laws, see the California Department of Industrial Relations website.

For more information on the federal Fair Labor Standards Act, see the U.S. Department of Labor website.


FMLA Suits Rise Sharply – Ottinger Law

fmla suits on the rise

 FMLA suits are on the rise according to a recent Wall Street Journal article.  The article states that the number of FMLA suits rose from 291 in 2012 to 877 in 2013.  Recent FMLA suits are arising from a number of factors, ranging from denial of leave to termination of employees who are on a protected leave to interference with an employee’s right to take protected leave to lost promotion opportunities and salary increases as a result of taking leave.

FMLA Suits and Your Rights 

Under the FMLA (Family Medical Leave Act), an “eligible employee” is entitled to an unpaid leave of absence of up to 12 workweeks in a 12-month period.  An “eligible employee” is one who:

  • Is employed by an employer who employs at least 50 employees, and works at a location where at least 50 employees are employed at the location or within 75 miles of the location;


  • Has worked at least 12 months for the employer (which do not have to be consecutive); and
  • Has worked at least 1,250 hours during the 12 months immediately before the date FMLA leave begins.

FMLA leave may be taken for any one of the following reasons:

  • The birth of a child and to care for the newborn child within one year of birth;
  • The placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
  • To care for the employee’s spouse, child, or parent who has a serious health condition;
  • A serious health condition that makes the employee unable to perform the essential functions of his or her job;
  • Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty.”  Qualifying exigencies may arise when the employee’s spouse, son, daughter, or parent who is a member of the Armed Forces (including the National Guard and Reserves) and who is on covered active duty or has been notified of an impending call or order to covered active duty; or
  • Twenty-six (26) workweeks of leave during a single 12-month period is available under the FMLA to care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, or next of kin.

An employee wishing to take FMLA leave must obtain and provide an appropriate medical certification.

Employees returning from FMLA leave must generally be reinstated to the same or a comparable position to that they held prior to taking leave.

Employers are prohibited from retaliating against an employee for taking FMLA leave or otherwise exercising their rights under the FMLA.  The rise in FMLA suits is largely the result of companies interfering with leave or retaliating against employees who take or request medical leave.

For more information on FMLA leave, see the Department of Labor website.

California has a comparable statute known as the California Family Rights Act (CFRA).  Note, however, that the CFRA does not include leave for qualifying exigencies arising from military service, or military caregiver leave.  Additionally, pregnancy is not covered as a serious health condition under the CFRA.  Instead, an employee disabled by pregnancy in California is covered by Pregnancy Disability Leave (PDL) laws.

FMLA Suits for Damages  

In FMLA suits employees may be eligible for the following damages: back pay (which includes lost wages, salary, bonuses, commissions, and benefits), other monetary losses resulting from the violation where there are no lost wages, liquidated damages in an amount equal to the employee’s actual damages (also known as “double damages”), interest, and attorney’s fees.  Employees may also be entitled to equitable relief, such as reinstatement or a promotion that was lost as a result of taking leave.  Employees are not, however, entitled to emotional distress damages or punitive damages.

Recent FMLA Suits

An employee may sue under the FMLA if the employee is denied the right to take a protected leave, is terminated as a result of taking protected leave, or if the employer deterred him or her from taking leave or otherwise interfered with the employee’s right to take leave.

A number of common themes emerge from recent FMLA suits.  For example, what constitutes a serious health condition?  A serious health condition is defined as an illness, injury, impairment, or physical or mental condition that involves:

  • Any period of incapacity or treatment connected with inpatient care in a hospital, hospice, or residential medical care facility; or
  • A period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider; or
  • Any period of incapacity due to pregnancy, or for prenatal care; or
  • Any period of incapacity (or treatment therefore) due to a chronic serious health condition; or
  • A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective; or,
  • Any absences to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated.

Employers often struggle with what this definition really means, and whether the employee, or the employee’s family member, has a qualifying serious health condition.

Employers also struggle with accommodating an employee’s request for leave.  While a 12-week absence may place a strain on the employer’s resources, it is sometimes even more difficult to accommodate a request for “intermittent leave,” which is also allowed under the FMLA.  Intermittent leave means that the leave is taken intermittently, as needed, such as for treatment or to care for a family member undergoing treatment.  The employee is still entitled to a total of 12 workweeks of leave, but the leave is generally taken in smaller increments, in weeks, days, or even hours at a time.  Intermittent leave can also include working a reduced schedule of, for example, five hours per day or three days per week.  Disputes over intermittent leave are leading to more FMLA suits as employees become more aware of their rights.

FMLA suits contain allegations that, among other things, employees were required to work while on leave, that they were passed over for promotions while on leave, that they did not receive pay increases as a result of taking leave, that they were harassed while on leave and criticized for taking time off, or that they were terminated in retaliation for taking leave.

See our main FMLA section for more information.  If you have questions about the FMLA, call for a free consultation.   We have offices in San Francisco and New York.