Week Adjourned: 10.23.15 – Forever 21, Publix, Duke Energy

forever 21Top Class Action Lawsuits

Don’t make any plans! We might need you to work…or not. Forever 21 Retail Inc. is the latest retailer to get hit with an employment class action lawsuit over the practice of using on-call shifts. This practice results in failure to compensate workers who report for work but ultimately aren’t put to work. Nice one.

Former Forever 21 sales clerk, Raalon Kennedy, claims in the lawsuit, that the clothing retailer doesn’t pay its employees reporting time pay, which they are entitled to if they report to work but aren’t put to work or work less than half a scheduled day’s work. In the complaint, Kennedy calls this practice the latest form of wage theft.

“On-call shifts, like regular shifts, also have a designated beginning time and quitting time. Forever 21 informs its employees to consider an on-call shift a definite thing until they are actually told they do not need to come in,” the lawsuit states. “In reality, these on-call shifts are no different than regular shifts, and Forever 21 has misclassified them in order to avoid paying reporting time in accordance with applicable law.”

According to the Forever 21 lawsuit, Kennedy worked as a sales clerk at a Southern California Forever 21 store, where he was frequently scheduled to work on-call shifts, both after his regularly scheduled shift and on days when he otherwise wasn’t required to work.

Under California labor law, nonexempt employees must be paid reporting time pay when they are required to report to work but aren’t put to work or are only paid less than half of their scheduled day’s work. Kennedy states that Forever 21 never compensated him with reporting time pay.

The complaint asserts that these on-call shifts take a toll on employees, especially those in low-wage sectors, making it difficult for employees to obtain other employment or plan activities on days they’re scheduled for on-call shifts.

The complaint alleges failure to pay reporting time pay, failure to pay all wages earned at termination, failure to provide accurate wage statements and unfair business practices and asks for the payment of unpaid wages as well as compensatory and economic damages and attorneys’ fees and costs, among other claims for relief.

The case is Kennedy v. Forever 21 Retail Inc. et al., case number BC597806, in the Superior Court of the State of California, County of Los Angeles. Go get ‘em!!

Publix Supermarkets outed for making robocalls… Yup—‘fraid so. They got hit with a Telephone Consumer protection Act (TCPA) lawsuit this week that claims the company made numerous auto-dialed phone calls to lead plaintiff Eric Snover, telling him to pick up a prescription when he had never used Publix’s pharmacy services.

In the Publix robocall lawsuit, Snover contends he received 13 calls made my robodialers, all of which had a recorded voice telling him that his prescription was ready for pick up at a Destin, Florida, Publix store. However, Snover claims that he doesn’t live in that town, that he has never used a Publix pharmacy, and he has never given the grocery chain his cellphone number.

Additionally, the lawsuit claims that the recording provides no opportunity to opt out of the robocalls or to ask Publix to stop calling them.

Wishing to end the unsolicited calls, Snover contacted Publix three times, according to the lawsuit, each time an employee assured him that the calls would stop. However, the calls continued until November 2014, the complaint states.

In-store pharmacies are present in nearly 80 percent of Publix’s 1,100 stores in the South and comprise a principal part of its business, the complaint states. “In an effort to increase their bottom line and garner market share in the pharmacy services industry, defendant engaged in a systemic marketing campaign involving artificial or prerecorded voice calls … to consumers’ cellular telephones to inform them that prescriptions were ready for pickup,” the lawsuit states.

“However, defendant didn’t obtain written express consent for those prescription service-related calls.” Instead, Publix queried its database of cellphone numbers for consumers who may have previously filled prescriptions at its pharmacies and used an autodialer to call them, the lawsuit states.

Many of these consumers don’t use Publix’s prescription services and did not have any prescriptions to pick up a Publix pharmacy, Snover contends. “As a result, many consumers were automatically opted in to Publix’s autodial program, resulting in an obligation to affirmatively opt out in order to avoid repeated, unsolicited autodialed calls.” Snover claims that Publix ignored requests by consumers to stop the allegedly illicit calls.

Snover seeks to represent a national class of consumers whom Publix used an autodialer to call their cellphones about a pharmacy service since October 2011, according to the complaint.

Each member of the proposed class would be entitled to $500 for every negligently placed call or $1,500 for each call placed in knowing violation of the TCPA, Snover said. His suit also seeks injunctive relief.

Snover is represented by Jonathan Betten Cohen of Morgan & Morgan PA. The case is Snover v. Publix Super Markets Inc., case number 8:15-cv-02434, in the U.S. District Court for the Middle District of Florida.

Top Settlements 

Duke Energy Outduked? Ok—here’s a biggy. Albeit preliminary—the settlement on the table is a suggested $80.9 million. If approved, it will end an antitrust class action lawsuit pending against Duke Energy Corp.

Short version on the lawsuit: filed on Ohio federal court, the suit claimed Duke gave corporate customers a competitive advantage via illegal rebates in exchange for their support of a rate stabilization plan the company was trying to pass through the Public Utilities Commission of Ohio.

According to information issued by Duke, the terms of the settlement provide for residential and non-residential customers, from January 2005 to December 2008, to share in $25 million, while $8 million will be used to fund energy-related programs to benefit Duke Energy Ohio customers. The remaining $23 million is pay legal fees and other expenses.

If approved, the Duke Energy settlement would end 8 years of litigation. The lawsuit was brought by Duke Energy residential customer Anthony Williams, non-residential customer BGR Inc. and others accusing the company of using various unlawful schemes to funnel tens of millions of dollars in rebates to its largest corporate customers.

The case is Anthony Williams et al. v. Duke Energy Corp. et al., case number 1:08-cv-00046, in the U.S. District Court for the Southern District of Ohio. 

Ok! That’s a wrap folks…See you at the Bar!

Week Adjourned: 5.20.11

Top Class Actions

AXA axing pay? Pay—overtime, regular time, anytime in fact that requires payment is a recurring theme in class action lawsuits. This week, thousands of commissioned US employees at global financial giant AXA filed a potential class action against the company alleging they worked as many as 60 hours a week, but weren’t paid minimum wage or overtime.  

Because this is apparently a long-running problem—the suit alleged the violations go back as far as 2005 —the potential class could consist of more than 1,000 current and former employees: from the company’s financial product marketers and financial product marketer trainees to cold callers, according to the suit.

Employees of the company were paid a $24,000 base salary plus a percentage share of any commissions earned by licensed brokers, if they were successful in obtaining new accounts for the brokers, according to court papers. So, maybe we’ll pay you—but you can put in the hours anyway? Am I reading this correctly? Failure to pay overtime violates the U.S. Fair Labor Standards Act, (FLSA) which covers employees paid commissions.

One employee, Bennet Marcus, of New York City, worked from 8 a.m. to 8 p.m. five days a week and was unpaid during his training, according to the suit. He worked for AXA from October 2010 through February 2011 as a trainee and cold caller. Where’s Charles Dickens when we need him?

FYI—AXA is one of the world’s largest insurance companies with 2010 revenues of 91 billion Euros—$129 billion. In case you’re having trouble calling the company to mind—their popular TV commercials feature a 900-pound gorilla–that’s him above. No small irony there.

The suit, which requests a jury trial, seeks unspecified back wages and overtime, damages, interest, attorney fees and costs. In addition to the claims under federal law, the plaintiffs also are seeking damages for underpayment of wages under New York State law for AXA’s workers in New York. 

Top Settlements

From unpaid overtime to retirement…it’s all about employees. This week a federal judge approved a $30 million settlement ending a 5-year old ERISA class-action filed against Duke Energy.

The lawsuit, brought by 20,000 class members who worked for Duke Energy Corp, alleged the company broke federal law when it changed its retirement plan. Now why would they want to do that?

According to the Greenville News, Duke workers said the Charlotte, N.C., company violated the Employment Retirement Income Security Act of 1974 in how it administered and calculated benefits under its retirement cash balance plan. A penny saved is a penny earned—not a penny pinched. 

UMB made the most of his weekend? UMB Financial Corp, has agreed to pony up $7.8 million in settlement monies, potentially ending the class action lawsuit brought against it in April 2010. The suit alleged that UMB Bank, a subsidiary of UMB Financial Corp, unfairly charged overdraft fees by treating pending deposits differently than pending withdrawals, thereby rearranging withdrawals to maximize overdraft fees. 

By way of example, David Johnson who filed the suit, claims that UMB charged him 17 overdraft fees, each in the amount of $36, over a single weekend. This included a $36 overdraft fee on a eighty-five cent purchase. UMB then charged Johnson additional overdraft fees and negative balance fees after these 17 fees depleted the hundreds of dollars of available funds in his account.

Nice! That’s certainly putting your customers’ needs first.

The settlement, subject to approval by Jackson County Circuit Court, includes no admission of wrongdoing. Of course it doesn’t. But money talks. 

That’s enough good news for one week. See you at the bar.