February 2012 Quick Clips

Donning/Doffing Is Still Work in the Fourth Circuit, February 27, 2012

Back in June, I wrote about Mountaire Farms, Inc. v. Perez, 650 F.3d 350 (4th Cir. 2011). In that case, the Fourth Circuit affirmed a district court ruling that held that time spent by chicken processing plant workers donning and doffing their protective gear was “work,” and therefore compensable, under the Fair Labor Standards Act. The employees in Mountaire sought wages for the time that they spent putting on and taking off gloves, smocks, glasses, boots, and ear plugs. The Fourth Circuit held that the time was compensable because it was an “integral and indispensable” part of the of the “poultry processing industry”. The employer filed a petition to the Supreme Court, asking it to review the case. The employer hoped that the different standards that have developed among the various federal circuits would be sufficient reason for the Supreme Court to address the issue. Alas, on February 27, the Supreme Court denied the employer’s petition without comment. For the time being, the Fourth Circuit’s determination stands. The effect is that employers in the Fourth Circuit should be sure to compensate employees for any time spent performing pre- or post-work tasks that are an“integral and indispensable” part of their work. To error on the side of caution may prevent a similar suit in the future.

Come and Go as You Please, February 22, 2012

by Peter S. Saucier

Language in a collective bargaining agreement between the IBEW and FMS Corporation reads, "The Union shall have access to the plant, when necessary, by signing into the visitor log." When a union business agent wandered around the plant unescorted, the Company said that it expected notice of a visit and a chance to arrange a place for the union to meet. Instead, the Union claimed that it had the run of the plant, so long as the book was signed, and employee work was not interrupted. The ONLY restriction was signing the book. Arbitrator Jeffrey W. Jacobs agreed with IBEW that it was in full control. He wrote, [T]he phrase 'when necessary' applies ro when the Union deems it neccessary to gain access to the plant to conduct whatever business the Union deems necessary." Arbitrator Jacobs left no doubt that ministerial signing of a book affords carte blanche access: [The] employer is ordered to cease and desist from denying access to the plant as long as the other stated requirement of signing into the visitor log have [sic] been satisfied."

How Drunk is Drunk? February 22, 2012

by Peter S. Saucier

In the mid-morning of his workday as an electrican-mechanic who worked on heavy machinery at a corrugated box manufacturing plant, was randomly tested and found to have blood alcohol level of .037%. Fifteen minutes later, he was retested at .035%. The employer took no disciplinary action but sent the electrician-mechanic, who also happened to be the president of the union, home for the day. The company also required that he test clean the next morning before working.

The union took the non-discipline to arbitration, arguing that the employer had no right to send the union president home or make him test clean before coming to work. The employer explained that under DOT rules, a truck driver with an alcohol level above .02% could not drive for 24 hours. Therefore, sending the union president home from a heavy machinery job seemed like a minimum safety move. Moreover, checking the blood alcohol level of such an employee before he returned to work seemed prudent and necessary.

Not so, said arbitrator Mitchell B. Goldberg. The ruling is so astounding that quoting from the published opinion may be the only way a reader will believe that I am not making this up:

In this case, the Grievant's test level was reduced by .002 in the 15-minute test intervals. This evidence suggests that his level would have reduced to less than .02% in a couple of hours. If that were the case, he could have salvaged some of his pay by working some part of his remaining shift. Accordingly, the Company's policy, in order to consider it to be non-disciplinary, should only be instituted to relieve an employee from safety sensitive work until his level is reduced below .02%. . . . The evidence in this case suggests that the Grievant could have salvaged approximately one half of his work shift and pay for that portion of his work. . . . Moreover, there is no contractual basis for requiring the Grievant to be tested after a 24-hour removal or before he returns to work the next workday. Automatic testing of this nature is not based upon reasonable suspicion. . . . I believe the Company's policy, to pass the reasonableness test, should provide the employees who test under .04% with at least one opportunity at their option, to be retested sometime during the remaining portion of their shift. If the test results were under .02%, this would permit them to salvage part of their work shift and wages.

Effectively, Arbitrator Goldberg ruled that the employer must toss the electrician- mechanic in the company's handy drunk tank for a few hours, then throw him back on the floor when he might be sober. Oh, and having a blood alcohol level of .037% at 8:30 a.m. is not reasonable suspicion that he drinks and works. The hits just keep on coming.

Payroll Tax And Benefits Deal Expected To Pass Congress, February 17, 2012

by Michael R. Severino

Lawmakers are expected to vote today on a deal reached by senior members of both parties to extend the payroll tax cut and jobless benefits. The agreement will likely pass both chambers and President Obama is expected to sign the bill into law. The proposal would leave in place the payroll tax cut through the end of 2012, and would also extend jobless benefits. However, the bill would cut the maximum time a person could receive jobless benefits to between 63 and 73 weeks depending on the state, and would also permit states to drug test benefit applicants if the applicant was previously terminated for failing or refusing a drug test. Finally, the bill would adjust Medicare reimbursement rates for doctors. The jobless benefits extension and Medicare fix will be paid for through other measures.

Lactation Discrimination? Texas Judge Says No, February 15, 2012

by Michael R. Severino

A federal judge in Texas recently ruled that a new mother does not have the right to pump breast milk at work. (EEOC v. Houston Funding II, Ltd.; no. H-11-2422; S. D. Texas). The facts in Houston Funding are straightforward. The plaintiff gave birth to a baby girl in December 2008, after which she took maternity leave. While the plaintiff claimed that she had been in contact with her employer throughout her leave, her employer claimed that she had abandoned her position. After the plaintiff failed to return to work in February 2009, her employer terminated her (apparently without notifying the plaintiff). After the termination, the plaintiff contacted a vice-president of the company, informed him that she was ready to return to work, and asked if she could use a back room to pump milk. The vice-president informed her that the company assumed that she had quit and had filled her spot.

The EEOC alleged that the company fired the plaintiff because she wanted to pump breast milk at the office. The trial judge disagreed. While acknowledging that discrimination due to childbirth, pregnancy or a related medical condition was illegal, the judge ruled that any pregnancy related condition necessarily ended once the plaintiff gave birth. Thus, “the law does not punish lactation discrimination.” Employers should expect that this is not the last word on the subject.

California Appeals Court Reverses Class Action, February 15, 2012

by Michael R. Severino

Discrimination and wage class actions that rely on statistics are getting harder and harder to maintain. In the wake of the well-publicized Wal Mart Stores, Inc. v. Dukes case, decided by the Supreme Court last year, the California Court of Appeals recently overturned a $15 million judgment entered on behalf of a class of business banking officers at U.S. Bank. Duran v. U.S. Bank Nat’l Assoc. (Calif. Court of Appeals, First District, Division One, Nos. A125557, A126827; February 6, 2012). The appeals court found numerous problems with the trial court’s management of the class action and the plaintiffs’ use of statistical sampling to prove liability and damages.

The Duran class consisted of 260 banking officers, who alleged violations of California’s wage and hour laws. In its defense, USB argued that the class members were exempt employees and sought to dispute liability – a fact specific inquiry – for each class member. Problems arose when the trial court allowed the plaintiffs to prove liability by merely sampling some 21 bank officers and then extrapolating those findings onto the entire class. Furthermore, USB was prevented from offering any exculpatory evidence concerning any member other than the 21 member sample population. The appeals court agreed with USB, ruling that “trial by formula” deprived USB of its due process rights to contest its liability to each member. Clearly, support for using statistics in large class actions is waning.

Federal Court Finds that Parties Cannot Agree to Choose Georgia Law in California, February 10, 2012

by Frank L. Kollman

How many times have you signed a contract that says the law of another state controls the agreement? The idea is to apply the law of a state more favorable to the person drafting the contract. It’s a lawyer’s trick that sometimes works.

It did not work in the case of Ruiz v. Affinity Logistics Corp., No. 10-55581 (9th Cir., February 8, 2012). The company in this case tried to get around California labor and employment law with its drivers by having them sign “independent contractor” agreements that applied Georgia law. The Court found that the parties could not agree to circumvent the public policy of California, so Georgia law would not apply.

Although this federal court is considered one of the most liberal in the country, it is likely other courts would have reached this result. As we have reported before, governments are scrutinizing independent contractor arrangements more critically these days. This is another example.

House Committee on Oversight and Government Reform Holds Hearings on Union Contributions to Political Causes, February 9, 2012

by Frank L. Kollman

In the public sector, unions contribute money to the politicians who set wages and benefits for government workers. Conflict of interest, anyone? In the private sector, unions contribute money to causes designed to increase their power and ability to get new members and gain advantages in their dealings with employers. Just look at the recent interim, and probably unconstitutional, appointment of pro-union members to the National Labor Relations Board. Unions were a significant resource during the President’s election campaign in 2008.

Yesterday, the House Committee on Oversight and Government Reform began hearings on union contributions to political candidates and causes. The focus is on whether employees should have their dues used in that manner when they have little opportunity to disagree with their union’s political expenditures. Not surprisingly, Democrat house members are appalled.

Oops – Teamster Found Liable to Members for Lost Wage Increases, February 7, 2012

by Frank L. Kollman

A federal court in Chicago has found a Teamsters Union local liable for wage increases its members “would have received” had the local requested bargaining. Under the collective bargaining agreement, either the union or the employer could have requested a wage reopener by giving written notice to the other. The union, who did not track the date for doing so, gave late notice. The employer, within its right, said “no.” Members sued the union claiming that the local had not represented it fairly under federal labor law.

The court agreed with the members, finding that the local’s action was not mere negligence. The court found that the union’s action was arbitrary because there was a systematic failure of its contract deadline tracking procedures. Therefore, the union had to pay its members for missing the deadline. Begeske v. Teamsters Local 673, No. 09 CV 4009, (N.D. Ill., January 31, 2012).

Now, the court has to compute damages. The members maintain they would have received between 2.8 and 3.2 percent annually, and they are entitled to that plus compounded interest until retirement. Moreover, the court left open the possibility that it would award damages for emotional distress. Local 673, we are sure, is accepting donations.

Woman Offended by Gross Female Employee Can Sue for Harassment, February 6, 2012

by Frank L. Kollman

A federal court in Kentucky will permit a female employee to proceed with her hostile environment sexual harassment claim based on gross, sexual conduct by another female coworker. Bradford v. Dep't of Community Based Services, No. 09-206 (E.D. Ky., February 2, 2012). In the overwhelming majority of hostile environment cases, male employees are accused by female employees of engaging in the offensive behavior. The court in Bradford merely confirms that same-sex harassment is just as actionable as conduct between male and female employees.

The court was especially troubled by the employer’s failure to respond to repeated complaints of unprofessional, sexual behavior, which included indecent exposure, lewd motions, and vulgar talk. If an employee complains that a coworker is engaging in unwelcome or offensive comments, based on sex, an employer must conduct an investigation and, if appropriate, take corrective action. Inaction essentially amounts to approval of the offensive conduct.

Court Finds Pre-School Required to Accommodate Parent’s Latex Allergy, February 3, 2012

by Clifford B. Geiger

Lisa Meade was diagnosed with a latex allergy in 1998. In 1999, she learned that the staff at her two year-old son’s preschool wore powdered latex gloves when changing the children’s diapers. Meade spoke with the School Administrator about her allergy, and her concerns about the use of powdered latex gloves, which included potential airborne exposure, and secondary exposure, as latex particles may attach to the powder disbursed when the gloves are used. She brought in boxes of non-latex vinyl gloves for the teachers to use on her son, and she asked the school to switch to non-powdered latex gloves for use throughout the school.

The school tried to accommodate Meade. The staff was directed not to use latex gloves while changing Meade’s son. Meade also was allowed to pick up her son at the school’s front desk so that she did not have to travel further into the building and risk exposure to latex.

Meade was not satisfied. She wrote to the School Administrator, who then asked Ms. Meade to withdraw her son from the school.

Meade filed a complaint with the Howard County Office of Human Rights, claiming that the school refused to make reasonable accommodations for her latex allergy and thereby violated the Howard County Code, which prohibits discrimination in the provision of public accommodations.

Meade testified at trial that the school’s use of powdered latex gloves prevented her from being more active in her son’s education. Meade testified that she could not spend time in the classroom, speak with teachers, see class projects, go to the school library, or observe classes, because she did not want to expose herself to airborne latex. The court concluded that Meade’s latex allergy was an impairment that substantially limited her major life activities of “socialization” and “parenting,” and there was sufficient evidence that the school discriminated against her because of her “handicap” by refusing to switch to non-powdered latex gloves.

There was a dissenting opinion filed by Judge Sally Adkins (and joined in by Judge Lynne Battaglia), who criticized the majority for failing to provide any meaningful legal standard. In essence, Judge Adkins wrote, the majority ignored whether any limitations on Meade’s parenting activities were substantial. Judge Adkins noted the majority’s decision would be far reaching, “because a large segment of the population has some health condition that impairs their ability to function fully in all the activities that they may deem highly desirable. And yet, surely not all of these people should be encouraged to file disability discrimination claims.”

The case is Meade v. Shangri-La Partnership and a Business t/a & d/b/a Children’s Manor Montessori School. You can read all of the court’s opinions here

Internal Complaint Sufficient to Trigger FLSA’s Anti-Retaliation Measure, February 1, 2012

by Clifford B. Geiger

Section 215(a)(3) of the Fair Labor Standards Act (FLSA) makes it unlawful for a covered employer to "discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding." In Minor v. Bostwick Laboratories, Inc., (4th Cir., No. 10-1258, 1/27/12), the U.S. Court of Appeals for the Fourth Circuit addressed whether an employee’s complaint to company management—as opposed to a complaint filed with a court or government agency— may trigger the protection of the FLSA’s anti-retaliation provision.

Kathy Minor was employed Bostwick Laboratories, Inc. ("Bostwick") as a medical technologist. Minor and several other employees met with Bostwick’s chief operating officer to discuss timekeeping issues. During the meeting Minor alleged that her supervisor had willfully violated the FLSA by altering timesheets to remove overtime hours that employees had actually worked and recorded. Minor was told that her allegations would be investigated. Four days later she was fired.

Minor sued, alleging that her discharge violated the FLSA. The district court dismissed Minor’s claim, finding that her internal complaint did not trigger protection of the FLSA’s antiretaliation provision. On appeal, the Fourth Circuit focused on whether Minor had “filed any complaint” within the meaning of Section 215(a)(3). In Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011), the Supreme Court held that oral complaints could meet Section 215(a)(3)’s “filed any complaint” requirement, but it did not address whether intracompany complaints could be protected.

The Fourth Circuit found the phrase “filed any complaint” ambiguous. The Court decided that, in light of the FLSA’s remedial purpose, intracompany complaints may constitute “fil[ing] any complaint” under Section 215(a)(3) of the FLSA. The Court went on to say that not every instance of an employee letting off steam would be protected activity. Some degree of formality is required. The employer must have fair notice that a grievance has been lodged, and it should understand the matter is to be addressed as part of its business concerns. According to the Fourth Circuit, Minor’s complaint met this standard, and her allegations were sufficient to survive a motion to dismiss.

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