Our employment attorneys in Orange County recently learned about a lawsuit that was filed against pop-icon Mariah Carey, by her former executive assistant, Lianna Shakhnazaryan.  In the suit, Ms. Shakhnazaryan claimed that Ms. Carey—along with her one time manager, Stella Bulochnikov—sexually harassed her and wrongfully terminated her employment. The allegations made in the lengthy lawsuit against Ms. Carey included wrongful termination, sexual harassment, and failure to prevent harassment or discrimination in the workplace.  Ms. Shakhnazaryan also claimed that she was owed wages upon her termination, including overtime pay she never received.

According to Ms. Shakhnazaryan, in September 2015 she began working as Ms. Carey’s assistant and claimed she had a verbal agreement that included an annual salary of $328,500.00, although no formal paperwork was drawn up through an employment attorney or other third-party.  The former employee also alleges that she was forced to meet continuous demands of considerable magnitude and frequently faced short deadlines for which proper compensation was not offered.

Ms. Shakhnazaryan also claims that she was subjected to sexual harassment and inappropriate conduct as well, and that Ms. Bulochnikov repeatedly made offensive sexual comments to her, including remarks about Ms. Shakhnazaryan’s physical appearance.  The former assistant alleges that Ms. Carey was fully aware of the inappropriate conduct of her then manager, and that on more than one occasion Ms. Carey witnessed Ms. Bulochnikov’s emotional abuse and sexual harassment of Ms. Shakhnazaryan and did nothing to stop to the behavior. Ms. Shakhnazaryan went as far as to claim that Ms. Carey gave permission to Ms. Bulochnikov to act in this inappropriate and troubling manner toward Ms. Shakhnazaryan. In addition, she has stated that other individuals employed by Ms. Carey also witnessed the alleged sexual harassment and battery, but did nothing to prevent or stop future episodes.  Among the laundry list of complaints in Ms. Shakhnazaryan’s lawsuit is a claim that she was terminated as retaliation for her allegations against Ms. Bulochnikov.

With respect to unpaid compensation, Ms. Shakhnazaryan’s claims include, but are not limited to compensatory damages, such as unpaid overtime, lost wages on future and past earnings, and money for mental pain and anguish. General damages were added to the suit as well, including punitive damages and attorney’s fees. She is also demanding a jury trial as opposed to an out-of-court settlement.

The inflammatory allegations made in her lawsuit came quickly on the heels of Ms. Carey’s own suit, in which Ms. Shakhnazaryan was accused of being “an extortionist, a grifter, and a Peeping Tom.”  Mark Quigley, Ms. Shakhnazaryan’s lawyer, released a statement to Entertainment Tonight firmly denying the claims made in Carey’s lawsuit.

Carey settled a high-profile lawsuit with Ms. Bulochnikov earlier this month. Ms. Bulochnikov filed legal documents last April against Ms. Carey, after being terminated near the end of 2018. She accused the singer of breach of contract and sexual harassment, although those claims were strongly denied by Ms. Carey.  According to court documents acquired by Entertainment Tonight, Ms. Carey and Ms. Bulochnikov settled the matter before the trial date was set.

Our Orange County employment attorneys specialize in cases regarding inappropriate sexual conduct in the workplace, unpaid wages and wrongful termination. If you have experienced any of these offenses, we urge you to contact our employment law attorneys today for a free consultation.

Many employers utilize the practice of having employees “on-call” in order to flex their workforce. This practice, however, often comes at a cost to the affected employees, be it by way of inconvenience, sacrificed opportunities or time spent waiting around to determine if he or she will be required to report into work. On February 4, 2019, in Ward v. Tilly’s, Inc., the California Court of Appeals addressed this common wage an hour practice used by California employers and held that Tilly’s employees who were subjected to on-call scheduling were entitled to compensation under California’s reporting time pay requirements.

Under Tilly’s policy, employees were scheduled for both regular and on-call shifts. Tilly’s then required its employees to call in two (2) hours before the start of their on-call shift to determine if they needed to report to work for their shift. Worse, Tilly’s disciplined employees who failed to call in before their on-call shifts, if they called in late or if they refused to work an on-call shift.

For their part, Tilly’s made various arguments in opposition to the claims, including pointing out that employees were not required to physically report to the workplace for an on-call shift. The Court rejected this argument, ultimately holding Tilly’s telephonic call-in requirements trigger reporting time pay. Notably, the Court pointed out how Tilly’s practice benefits employers by allowing them to keep their labor costs low when business is slow at the expense of their employees “while having workers at the ready when business picks up.” The Court recognized how this practice creates “no incentive for employers to competently anticipate their labor needs and to schedule accordingly.”

The Court also recognized how these types of policies “impose tremendous costs on employees” such as precluding other job opportunities, requiring employees to make contingent child or elder care arrangements, preventing employees from taking classes and stopping employees from making social plans. In short, the Court found such policies “significantly limit employees’ ability to earn income, pursue an education, care for dependent family members, and enjoy recreation time.” The Court also noted that reporting time pay may also be required if an employee is required to remotely log into a computer system.

This ruling in this case may have a significant impact on employer on-call policies in favor of California employees. If you believe your employer’s on-call policy is similar to Tilly’s and may require that you received reporting time pay, you should speak with a California Employment Attorney who is experienced in wage and hour matters.

Our employment attorneys in Orange County have extensive experience in handling wage and hour cases exclusively on behalf of employees. Ares Law Group, P.C. attorneys also offer a unique perspective with their collective of 30 years experiencing in employment law.

The attorneys at Ares Law Group, P.C. who regularly handle sexual harassment cases, are following new allegations against multiple NFL Network analysts. Erin McParland and Jami Cantor, who both worked as make-up artists for the NFL Network, have raised allegations of sexual harassment including sexually suggestive comments, inappropriate touching and sexual advances by NFL Network personalities including Eric Davis, Michael Irvin, and top executive Eric Weinberger.  Ms. McParland describes how, shortly after her hire, she was told that she needed to be careful because she was new, pretty and would likely be targeted.  Ms. McParland was stunned by the conduct she claims she was subjected to by the male personalities at the network.  Ms. McParland explained what gave her the courage to speak up was talking to other female make-up artists and learning they were subjected to the same or similar conduct by the same individuals.  After hearing these similar accounts, Ms. McParland felt empowered and took her complaints to the NFL Network’s Human Resources Department.

While both Ms. McParland and Ms. Cantor have separate individual cases, their allegations will likely be used to corroborate each other’s account.  One piece of evidence which will likely be central to Ms. McParland’s complaint are alleged Instagram direct messages from Davis in which she claims he commented on her flexibility and made suggestive remarks about how good they would be sexually.    Additionally, both Ms. McParland and Ms. Cantor’s attorneys will likely seek evidence related to complaints or concerns raised by other females in the workplace about similar conduct by the alleged sexual harassers.  If they find evidence the NFL Network was aware of inappropriate conduct by the accused harassers and failed to take appropriate action to stop it, it will likely strengthen their claims.

The allegations of sexual harassment by female make-up artists at the NFL Network against various NFL Network analysts reiterates what many experts in the field already know to be true, sexual harassment is often times not isolated incidents.  Rather, it consists of repeated actions indicative of a pattern of behavior.  Many women who are subjected to sexual harassment in the workplace never report the conduct for a variety of reasons including: fear of retaliation, financial need for a job, fear of being ostracized and fear of not being believed.  With the #metoo movement, many women are now feeling empowered to shine a light on inappropriate conduct in the workplace.  In doing this, what many are finding is they are not alone not only in the larger sense of the #metoo movement but often times, in terms of their own work environment.

Accordingly, if you continue to look where you see smoke, you may eventually find a fire.  In today’s day and age fire is often times found through the use of evidence provided through electronic communications and social media.  It remains unclear what will play out with respect to Ms. McParland and Ms. Cantor’s claims but what is clear, is that individuals who feel they have been subjected to sexual harassment, or other types of harassment, in the workplace, are often times not alone and should consult with a sexual harassment attorney to ensure they understand their rights.

Exemptions in California can be very confusing. Trying to determine whether an employee is exempt from overtime or non-exempt and entitled to overtime is difficult, and this is especially true with IT professionals.  While IT professionals are usually salaried employees, salary alone does not mean they are not entitled to overtime.

So what are IT professionals?  IT professionals (i.e. Information technology professionals) can hold a variety of job titles – a few examples include: IT specialists, systems administrators, systems engineers, IT technicians, database administrators, desk and IT support, and network operations engineers or specialists. However, whether an IT professional is exempt or non-exempt does not depend on the title, but comes down to the duties.  Because most IT professionals work long hours, it is especially important to determine whether as an IT professional, you are entitled to overtime pay.

Most IT professionals, if truly exempt, will generally fall under one of two exemptions: (1) the computer professional exemption; and (2) the administrative exemption (although other exemptions may sometimes apply).

The Computer Professional Exemption

Under California Labor Code Section 515.5, employees in the computer software field are exempt and therefore not entitled to overtime ONLY if ALL of the following four requirements are met:

(1)     The employee is primarily engaged in work that is intellectual or creative and that requires the exercise of discretion and independent judgment.

(2)      The employee is primarily engaged in duties that consist of one or more of the following:

• The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications.
• The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications.
• The documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems.

(3)     The employee is highly skilled and is proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, or software engineering. A job title shall not be determinative of the applicability of this exemption.

(4)    The employee’s hourly rate of pay is not less than thirty-six dollars ($36.00) or, if the employee is paid on a salaried basis, the employee earns an annual salary of not less than seventy-five thousand dollars ($75,000) for full-time employment, which is paid at least once a month and in a monthly amount of not less than six thousand two hundred fifty dollars ($6,250). The Division of Labor Statistics and Research shall adjust both the hourly pay rate and the salary level described in this paragraph on October 1 of each year to be effective on January 1 of the following year by an amount equal to the percentage increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers. Effective January 1, 2016 the minimum hourly rate is $41.85 and the minimum annual salary is $87,185.14 for full-time employment, and paid not less than $7,265.43 per month.

So in short, what does this all mean?

While there is no bright line rule, this means generally that to be considered exempt under the Computer Professional Exemption, employees must be:

• Exercising independent discretion and judgment – this generally means that the employee makes decisions over significant matters and is free of direct supervision;
• Highly skilled and proficient – this generally excludes trainees, entry level positions, and those learning to become proficient or those not at a skill level that does not require supervision;
• Primarily engaged in intellectual or creative work and one or more of the duties listed above – generally, “primarily engaged” means more than one-half of the employee’s work time.
• Earning no less than $41.85 per hour or $87,185.14 per year/$7,265.43 per month (as of January 1, 2016).

The Administrative Exemption

Under the Industrial Welfare Commission (IWC) Wage Orders, an employee falls under the Administrative Exemption ONLY if ALL of the following requirements are met:

• you must perform “office or non-manual work directly related to management policies or general business operations;”
• you must “customarily and regularly exercises discretion and independent judgment;”
• you must regularly and directly assist the owner of the business, or another exempt administrator OR do specialized or technical tasks that require special training or education and only under general supervision OR do special assignments and tasks only under general supervision;
• you must be engaged in these administrative duties more than 50% of your work time; and
• you must also earn a monthly salary equivalent to no less than two times the state minimum wage for full-time employment ($41,600 per year or $3,466.67 a month).

With the Administrative Exemptions and IT professionals, many times the question of exemption really comes down to whether the IT professional is performing tasks and functions that involve matters of substantial importance to running the business OR is simply engaged in the core day-to-day business.

If you are an IT professional and want to know whether you are properly classified, please consult with one of our attorneys.