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Latest DOL Opinion On Donning and Doffing, Not So Fast - 6th Circuit Says
Posted
1:04 PM
by Michael Fox
Although it may no longer be true, donning and doffing cases at one time were clearly the big ticket FLSA collective action. And for those still fighting those fights who have been concerned about the thumb that the DOL put on the scale with their June 16 Administrator's Interpretation (No. 2010-2), which reversed course from two earlier opinion letters issued this decade (yes, Obama administration vs. Bush administration), you now have some very favorable authority from yeseterday's decision by the 6th Circuit in Franklin v. Kellogg Co. (6th Cir. 8/31/10) [pdf].
Looking to determine the meaning of the phrase "changing clothes" in § 203(o) of the FLSA, the Court surveyed the DOL's view of that portion of the FLSA and found the following:
- 1997 Opinion Letter - "clothes" in section 3(o) does not encompass protective equipment and section 3(o) is an exemption to the FLSA that should be read narrowly;
- 2001 Opinion Letter - reiterated the position taken in the 1997 Letter;
- 2002 Opinion Letter - "changing clothes" in section 3(o) refers to the putting on and taking off the protective safety equipment typically worn in the meatpacking industry;
- 2007 Opinion Letter - reiterated the position of the 2002 Letter;
- June 16, 2010 Administrator's Opinion - section 3(o) exemption does not extend to protective equipment worn by employees, that is required by law, by the employer, or due to the nature of the job.
First, "an agency interpretation of a relevant provision which conflicts with the agency's earlier interpretation is entitled to considerably less deference than a consistently held agency view. [cite omitted] The DOL's position on this issue has changed repeatedly in the last twelve years, indicating that we should not defer to its interpretation. Additionally, we find its interpretation to be inconsistent with the language of the statute.For the fans of burden of proof (the most important vestige of employment at will), the Court addressed the question of whether section 3(o) is an exemption to the FLSA where the employer has the burden or a definition, where the employee has the burden. Although it does so, the Court really did not have to look much further than which section of the FLSA section 3(o) appears, is it § 203, Definitions or § 213, Exemptions?
As it appears in §203 not §213 the Court placed the burden on the employee, siding with the 5th and all other circuits which have decided the question, except for the 9th Circuit.
Up to this point the opinion is very employer friendly, but at this point it diverges for some other holdings:
- in determining whether changing clothes can be a "principal activity" which thus launches the "workday," the Court held that whether or not the time was compensable does not impact the determination;
- here, changing clothes was a "principal activity".
If it does, given the somewhat limited nature of section 3(o) which requires a collective bargaining agreement to be applicable, the most important point could well be the deference given to agency interpretations. While it may always have been the case, it is now more clear than ever, particularly in the field of labor and employment law, regulatory agencies are much more bound to an Administration's viewpoint than stare decisis.
My own view is that is not a very good way to run a railroad, but no one has asked my opinion, nor are likely to give it much weight. It is however a fact of life, and if we are going to deal with it, we might as well know exactly what view the courts are going to give such changing views. My
Labels: administrative, FLSA
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Posted
1:01 PM
by Michael Fox
Turning 21 is a much bigger deal than turning 20 if you are one who is looking forward to consuming adult beverages legally. But if you are a statute, twenty years is a nice point for others to weigh in on your success.
So in the the last two weeks various pundits have weighed in with their views on the Americans with Disabilities Act. (Although remember in terms of effective date, the ADA has just reached voting age. See, Happy 15th13th Birthday to the ADA).
Someone has no doubt collected a number of the articles about the good things the law has done, but I wanted to point out two cautionary notes because I think they make a serious point. They come from the employer side of the docket and are made by other "employer's lawyers" so you are more than welcome to take them with however big of grain of salt that you wish.
Both Jon Hyman at Ohio Employer's Law Blog and John Phillips at The Word on Employment Law raise a valid concern about the breadth of the ADA and its susceptibility to those who would game the system (my word, not theirs). See, Celebrating the ADA, but bemoaning its breadth and ADA's 20th Anniversary: A Contrary View.
To their contributions, I would add two more points. First, as I have pointed out in the past, there is at least some research that says notwithstanding its good intentions, the ADA may actually have hindered the ability of those that we would all consider disabled, to enter the workforce. See, Hurting by Helping? The Law of Unintended Consequences.
The other point is really an expansion on Jon and John's thoughts on the breadth the ADA and the problems that are caused by extending coverage to conditions that are at least further from the core of what have traditionally been considered disabilities.
Think about the law works.
The legality of an employer's conduct in almost all circumstances turns on the fundamental question --is the employee who has complained of discrimination under the ADA, disabled? (I know technically -- whether the person is a qualified individual with a disability). To put it another way, until you know whether someone is disabled, you do not know whether you have to comply with the law or not.
But whether a person is disabled as defined in the original Americans with Disabilities Act was very much a legal question. And not an easy one. Just think of the cases where that was the threshold question and the answer was not available until it went through EEOC, the district court, a court of appeals and in a handful of cases even the supreme court, before that fundamental question was resolved. By then of course many years after the employer had made its own fateful 'guess' as to what the ultimate answer would be.
In other words, in order to comply with the law you have to "know" the answer to what has been the key question over which most ADA lawsuits were fought -- was the person disabled. And in many cases you absolutely could not know for sure, until the lawsuit was decided, which obviously is too late to ensure that you act appropriately
With other types of discrimination it is rare that you have that initial hurdle. You know whether someone is male or female, young or old, black or white, of Hispanic descent etc. In those cases, there is rarely a legal question as to whether the law was applicable.
But are they disabled? As defined under the ADA, not nearly as easy.
And even after all the litigation that occurred after the first 20, oops 18, years, it was not much easier for an employer to make that decision, especially in the middle of the 1,000 other things that were on their plate when they were faced with answering the question.
And even if you had mastered that body of precedent, it has been drastically altered by the recently passed ADAAA, making for more difficulties as we head into the next 20 years.
There is a built in Catch 22 of many ADA cases, particularly those of the type that were mentioned in the two articles -- that in many such cases you don't know whether you have to comply, until you have been tried and found guilty of not complying.
I find it particularly ironic every time I notice a car with a government issued permit pulling into a parking space reserved for those with disabilities.
: 8:47 AM
have a nagging sense that I might be talking too much past tense, hence the call out about the the ADAA, but thanks for making a very practical point on going forward.
Michael Fox
Posted
9:19 AM
by Michael Fox
Sexual comments and jokes, including a Levitra pen that apparently grows in length, followed by a complaint with no follow up and then a termination were what a Sonoma County jury apparently believed was the hand Shannen De La Cruz , a minimum wage card dealer, had been dealt. $2 million harrassment verdict against Petaluma card room
Although it is easy to imagine how the comments contained in the newspaper story could have been made and taken by everyone as funny, it is equally clear that as it came across in the court room, the jury was offended, not amused.
One factor that certainly did not help the company was the testimony of four other women, including one who had settled her own case. Making that testimony probably even more powerful, she was the human resources chief to whom De La Cruz had reported the harassment. The unresolved issue of how much "me too" evidence should be admitted is an on-going danger of these types of cases.
Although with $5 million year in revenues it's hard to think of the casino on the receiving end of the jury verdict as a really small business, it is certainly no colossus. And what would tend to get almost any small business owner's attention is that the jury verdict amounts to 2/3 of the company's net worth.
Now as I repeatedly mention in reports of MDV's, there is a long way between jury verdict and payment and it is highly likely that any amount ultimately paid, if any, will be considerably less. But that a jury knowing the employee's financial net worth, felt it appropriate to give 2/3 of it to one ex-employee, has to be a sobering thought when contemplating placing one's fate in the hands of a jury.
Posted
3:40 PM
by Michael Fox
I am not a fan issuing press announcements following a trial victory. To quote an over used Seinfield line, "not that there's any thing wrong with it ..... ", it's just not my cup of tea.
Similarly, I have never mixed (at least that I can remember) my own personal practice results and my blogging, or at least not in any way that they were identifiable.
Others do, although generally they only give the favorable results.
So I was pleasantly surprised to find the following post, Kent County Jury Finds for School District in O’Neill v. Warwick, on the blog of the Employment Law Group. If you check out the story you can see that in this case their client did not prevail before a Rhode Island state court jury.
I admire anyone who actually tries employment law cases to a jury. And if someone is going to announce their wins, I would suggest that they follow the example of the Employment Law Group and shows us all the results, not just the wins.
If you are clicking through to look at their blog, you might look around as it is also an excellent site for developments in the employment law area, particularly in one of the fastest growing parts, whistleblower cases.
Posted
10:59 AM
by Michael Fox
Unfortunately for companies that operate in more than one state or are intently focused on the Fair Labor Standards Act, the answer is no.
Unlike the kid's game, where the winner is variable, when deciding wage and hour compliance questions, the answer invariably seems to be -- state law tops all.
Judge Easterbrook's short 7 page opinion in Spoerle v. Kraft Foods Global, Inc. (7th Cir. 8/2/10) [pdf] is a good example and (surprisingly) the first appellate decision to address at least one variation of this non-preemption issue. The question was what happens when a CBA which specifically excludes donning and doffing from time worked as permitted under Section 203(o) of the FLSA, runs into a state statute which does not have a similar exclusion? The answer under Section 218(a) according to Judge Easterbrook: state law prevails; employer loses. Here that translates to a $2.2 million dollar judgment on behalf a group of employees against the employer.
This may be the first for this specific issue, but it is not the only time it is a problem. See Union Bargaining Agreements Likely Cannot Waive Overtime Pay Rights, at the Overtime Advisor for a similar issue brewing in Nevada.
If I were rewriting wage and hour law, and I wish someone would ask me to do so, starting with Section 218(a) might not be a bad place to start. Compliance for companies that truly want to comply is hard enough when it is one law, but one law and 50 possible variations is a little too much federalism at times.
If it were truly protecting individuals from abusive treatment that would be one thing. But here, Local 538 of the UFCW, the employees' representative, and the company agreed that donning and doffing time would not be paid. No doubt elsewhere in the CBA that benefit to the company was offset by a benefit to employees, more than likely higher hourly wage rates.
So who really benefits from this $2.2 million decision?
The workers get all that they bargained for, plus a substantial windfall. Lawyers for the company and the plaintiffs (assuming that the judgment is not reversed by the Supreme Court) will have been well compensated. The Company will be out $2.2 + million dollars, which in classic economic terms likely means consumers will now have to pay more for their products.
I am sorry I must have missed something. Why is any of this a good thing?
Posted
9:57 AM
by Michael Fox
At least that is the thought one might take from a jury verdict at the end of May in Maine state court. As reported by Michael Afthim's counsel, Peter Thompson and Associates in their blog, Maine Employment Lawyer, his complaints about the working conditions of the men he supervised led to his termination and subsequent suit under the Main Whistleblowers' Protection Act.
According to his counsel:
CUMBERLAND COUNTY MAINE JURY AWARDS WHISTLEBLOWER $1,015,000 IN DAMAGES.
A year earlier, the Maine Human Rights Commission had passed on filing a lawsuit in the case. See Commission Meeting Minutes of June 29, 2009. Although I am not sure of the significance since I don't know about Maine's process, apparently there had been no written objection filed to the investigator's report. Commission Meeting Minutes of April 13, 2009.
With the current popularity of whistleblowing in legislatures including Congress, and quite frequently with juries, this is a story that may frequently be repeated.
Posted
9:12 AM
by Michael Fox
A hat tip to Employment Law 360 for their story, DOL Releases Guidelines On Breaks For Breastfeeding [pdf] ($) and inclusion of Fact Sheet #73 from the Wage and Hour Division, Break Time for Nursing Mothers under the FLSA.
It's the first official word I have seen on a provision contained in the major healthcare reform bill passed earlier this year, that was scant on details.
I am not sure this answers all the questions, but at least it's a start.
Posted
12:49 PM
by Michael Fox
A hat tip to Today's Workplace, the blog of the Outten & Golden firm, for their link to OSHA's new whistleblower website, Office of the Whistleblower Protection Program.
It is worth its weight in gold, if for no other reason than to find a link to all 18 statutes that OSHA currently is responsible for:
Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. §660
The statutes are up to date through the health care bill, but don't yet include those included in the Financial Reform Act which will not be signed into law until tomorrow. For a preview of those, which I am sure will be joining the list soon, see my earlier post, Financial Reform Passes - Major Whistleblowing Changes as Well.
Surface Transportation Assistance Act (STAA), 49 U.S.C. §31105
Asbestos Hazard Emergency Response Act (AHERA), 15 U.S.C. §2651
International Safe Container Act (ISCA), 46 App U.S.C. §1506
Safe Drinking Water Act (SDWA), 42 U.S.C. §300j-9(i)
Federal Water Pollution Control Act (FWPCA), 33 U.S.C. §1367
Toxic Substances Control Act (TSCA), 15 U.S.C. §2622
Solid Waste Disposal Act (SWDA), 42 U.S.C. §6971
Clean Air Act (CAA), 42 U.S.C. §7622
Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. §9610
Energy Reorganization Act (ERA), 42 U.S.C. §5851
Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), 49 U.S.C. §42121
Corporate and Criminal Fraud Accountability Act, Title VIII of the Sarbanes Oxley Act (SOX), 18 U.S.C. §1514A
Pipeline Safety Improvement Act (PSIA), 49 U.S.C. §60129
Federal Rail Safety Act (FRSA), 49 U.S.C. §20109
National Transit Systems Security Act (NTSSA), 6 U.S.C. §1142
Consumer Product Safety Improvement Act (CPSIA), 15 U.S.C. §2087
Section 1558 of the Affordable Care Act (ACA), P.L. 111-148
And for two final tidbits, before the next OSHA investigation into a whistleblower complaint, you might want to look over the 190 page Whistleblower Investigations Manual and when you get ready to settle check out OSHA's policy for Approval of Settlements with Future Empoyment Waivers. Spoiler alert, it's on a case by case basis and they look at five factors.
Posted
10:54 AM
by Michael Fox
Just recently I was having what is a frequent conversation about what I do for a living, basically -- how interesting it is. And how although I am now 35 years into the practice I am still amazed at the new situations and the complexity of issues that I see, or as in this case read about.
And this one really does not even qualify very high on an unusual scale, except that it does reflect how often employers have to battle human nature.
The facts leading up to a $1,047,000 verdict from a Maine jury for Edward Russell are apparently these: Russell had filled in at least four times as General Manager for Express Jet at the Portland airport when the position was vacant. When he applied for the position on a permanent basis and did not get it, he sued arguing it was because he was gay.
So far, straight enough (no pun intended). The complicating factor is that in 2003-04 there had been a complaint from three female employees who had unsuccessfully applied for an open supervisory position. At the time, all of the Express Jet managers at the facility were gay men. The women complained that the gay general manager would only hire other gay men.
The theory of the case for the plaintiff -- the company did not want another gay man in the position. Toss in a few untoward comments and it all ends up to $1 million dollar plus verdict, which as the article notes will be reduced by some amount due to damage caps. See, Man wins gay discrimination suit, from the Portland Press Herald.
Discrimination is of course an individual act, and if his sexual orientation was the reason for his not being promoted, Russell clearly was entitled to recover.
But before one gets all righteous about how the wrong the company was, it is easy to imagine a circumstance, where an employer could, justifiably or not, be saying to themselves -- you're damned if you do, and you're damned if you don't.
I said my job was interesting, I never said it was easy. Each piece of legislation, valid as it may be, just makes it more so.
Posted
10:41 AM
by Michael Fox
I continue to see a number of articles about the need for anti-bullying legislation, much to my dismay. When there is an article about it in the weekly Sunday supplement that's in my local newspaper, you know the movement is gaining traction. See Workplace Bullying: Do We Need a Law?
At least the article had the good sense to include this quote from Victoria Pynchon, who blogs regularly at Settle It Now Negotiation Blog:
What prompted the chain of thought that led to this post was this article from the Official Wire, California Pizza Kitchen Sued By Former Employee For Harassment And Sabotage Due To Sexual Orientation.
The connection to anti-bullying legislation? Sabotage at work is one of those ills that the statute is designed to protect against. A brochure supporting the Healthy Workplace Bill, includes this definition of bullying:
And what kind of allegations might we see in such "sabotage" cases?
Well according to the harassed pizza employee Kenneth Abramowitz it was a homophobic kitchen manager who:
While I don't want to minimize the problem, and here the verbal abuse might make this a case that would seem actionable, I have griped about slow food service too many times myself to think that it should give rise to a cause of action.
I don't think there is a disagreement that the workplace should be more civil, but adding another layer of legislation is surely not the only way to get there.
He keeps saying and saying and saying .....
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