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Monday, November 13, 2017

IT'S A GAS, GAS, GAS: Carbon Monoxide Leak At Per Wickstrom's “A Forever Recovery” Isn't The Only Thing Stinking Up The Place! Former Employees File Fair Labor Standards Act Complaint In U.S. District Court; Seeking Class Action Certification

FORMER A FOREVER RECOVERY EMPLOYEES FILE FAIR LABOR STANDARDS ACT SUIT IN U.S. DISTRICT COURT, SEEK CLASS ACTION STATUS FOR 100+ PLAINTIFFS! 

As first reported November 8, 2017 by Trace Christenson in the Battle Creek Enquirer, twenty-six people were treated that day at Bronson Battle Creek hospital after Battle Creek firefighters found high levels of carbon monoxide at Per Wickstom's A Forever Recovery facility at 163 North Avenue.

Christenson reported Battle Creek firefighters responded at 7:23 a.m. for a report of a patient with a seizure. 

When firefighters arrived, monitors they carried showed CO readings of 250 to 300 parts per million, well above acceptable levels of 30 to 40 ppm. 

Residents and staff were evacuated to a nearby building and after several people reported experiencing headaches 16 were taken by staff and Lifecare Ambulance to the hospital. Another 10 came to the hospital through the day. Firefighters and staff had immediately begun opening doors and windows and using fans to clear the air and it was lowered to the acceptable range. 

Twenty-four of the people were treated and later released and two were still at the hospital about 5 p.m. but reported in good condition, the hospital said. 

Semco Energy and the facilities boiler contractor determined the problem was caused by a faulty furnace.

Wickstom's A Forever Recovery received its own residential detox license from the State of Michigan on March 27, 2014 after closing its previous Tranquility Detox-related license. 

On May 19, 2012, a 22-year-old woman from North Carolina named Amber Bullins died at Tranquility Detox.

Bullins was originally scheduled to go to a related Wickstrom facility, Best Drug Rehabilitation in Manistee, Michigan, on Thursday, May 17, 2012, but was sent to Tranquility Detox in Battle Creek for “detox”. 

Two days later she was dead. According to her toxicology report, Bullins died of a “mixed drug intoxication.” 

Her blood tested positive for a cocktail of drugs including Xanax.  Although the Battle Creek Police Department purportedly launched an investigation into the death, and a wider probe of Per Wickstrom's other rehab businesses (A Forever Recovery and Best Drub Rehabilitation), it was apparently shelved.

But (allegedly) gassing 26 people like Saddam Hussein did to the Iraqi Kurds isn't Per Wickstrom's only headache — a Fair Labor Standards Act lawsuit filed in Western Michigan's U. S. District Court on September 26, 2017 by two former A Forever Recovery employees is certain to create agita in Wickstromland. (The complaints were formally served in late October; each executed summons was filed in U. S. District Court on November 7, 2017.)

The complaint, filed by Wyoming, Michigan attorney Robert A. Alvarez on behalf of plaintiffs Melinda Easterday and Shandal Klingsmith, alleges that during their employment, A Forever Recover (AFR) failed to compensate them for all hours worked. 

AFR deducted either one hour or thirty minutes (depending on length of scheduled shift) from their pay each day for a lunch break, although they were required to work during their scheduled break time. (In addition to A Forever Recovery, Inc., Per Wickstrom and his sister, Pamela Anderson, were also named as defendants.)

Easterday and Klingsmith allege AFR actively misled them about their rights to receive payment for all hours worked and payment at a rate of time-and-one-half the regular rate of pay for their hours of overtime worked. 

Easterday was paid $9.50 an hour from August 16, 2015 until March 24, 2016, and was paid $10.00 an hour from March 24, 2016 until she left the company on June 14, 2016. 

Easterday worked as a security guard, and her job duties included assisting patients, ensuring patients were where they were supposed to be, performing room checks every hour, performing perimeter checks, monitoring cameras, and “monitoring hot tubs in case of a medical emergency.” 

Although she was scheduled for 40 hours a week, Easterday’s hours varied from week to week. Easterday was required to punch in and out each day. 

Easterday alleged was not afforded an adequate lunch break, instead:

a. She was still required to help patients when asked; 

b. She was told that patients come first as they were the main priority; 

c. Lunch breaks were not scheduled; 

d. Easterday was not informed of the possibility of taking a scheduled break; 

e. Employees were not allowed to eat in the same area as patients; 

f. There was no break room in the entire building; and 

g. If another guard was doing rounds, she was required to be outside to monitor the hot tubs and smoke shack. 

Easterday was not paid for the one hour “break” during which she was actually required to work, and the hour was automatically deducted from her time card.

Shandal Klingsmith worked for AFR from November 2015 through March 2016, and was paid $8.50 an hour starting November 2015. 

Klingsmith received periodic raises, and was paid $10.50 an hour when she ended her employment in March 2016. 

Klingsmith worked variously as a receptionist, data entry clerk, withdraw specialist, and withdraw supervisor. 

Klingsmith’s job duties included assisting patients, ensuring patients were where they were supposed to be, preparing vitamins, observing patient mealtimes, monitoring hot tubs, and administering “body relax techniques.” 

Like Easterday, Klingsmith’s hours varied from week to week, and Klingsmith was scheduled for 40 hours a week, not including the hour which was automatically deducted for lunch for each day she worked. 

Klingsmith was required to punch in and out each day, and alleges she was not afforded an adequate lunch break:

a. She was still required to help patients when asked; 

b. Lunch breaks were not scheduled; 

c. Klingsmith was not informed of the possibility of taking a scheduled break; 

d. If she did attempt to take a lunch, she would be routinely interrupted and unable to finish her lunch break or take one at all; 

e. There was no break room in the entire building; 

f. Employees were not allowed to eat in the same area as patients; 

g. Employees were not allowed to eat in the withdraw offices; and 

h. Short staffing required Klingsmith to observe patients at all time.

The federal Fair Labor Standards Act (FLSA) requires payment of the federal minimum wage and also requires overtime pay at 1.5 times an employee's “regular hourly rate” for work by “non-exempt” employees in excess of 40 hours per week. 

If employees establish that they were not paid as required by the FLSA, they can recover unpaid wages going back two years. If the employer's violation is “willful,” the back-pay period is 3 years and the recovery is doubled as “liquidated damages.” 

For many years, the FLSA was enforced by the Wage and Hour Division (WHD) of the U.S. Department of Labor. Once it received a complaint from an employee or former employee, the WHD would conduct a “wall-to-wall audit” of the employer, and cite any FLSA violations. Most cases settled because the WHD will typically waive the “willful” violation penalties, and settle for two years of back wages. 

In recent years, though, FLSA cases have become very attractive to plaintiffs' employment lawyers. They began filing lawsuits after realizing that many employers are in violation of the FLSA. These can be expensive class actions. The FLSA allows a successful plaintiff to recover not only back pay and “liquidated damages,” but also actual attorney fees. 

Easterday and Klingsmith filed the action on their own behalf and on behalf of all other current or former employees who 1) worked or are working for AFR at any time in the three years prior to the filing of this action, and 2) were or are subject to the violations of the FLSA. 

Although the precise numbers of class individuals are known only to AFR, the group is believed to include well over 100 people.
 
In addition to other relief, the plaintiffs are seeking an order compelling AFR “to disclose in computer format, or in print if no computer readable format is available, the names and addresses of all those individuals who are similarly situated, and permitting Plaintiffs to send notice of this action to all those similarly situated individuals including the publishing of notice in a manner that is reasonably calculated to apprise the potential Class Members of their rights under this litigation.”

More information as it becomes available.

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