WIRTW #142 (“It’s the bitches that’ll get yas” edition)

Earlier this month, the Second Circuit, in Pucino v. Verizon Communications, held that repeated use of the word “bitch” could create a hostile work environment. I decided Dan Schwartz’s (of the Connecticut Employment Law Blog) blog post was worthy of the following tweet:

Misinterpreting my tweet, @CarlosDuranLive responded with the following:

Yikes. I share this little back-and-forth for two reasons: 1) words can often be misunderstood or taken out of context, and 2) your duty as an employer is to take seriously and investigate every complaint by every employee about words, no matter how silly the interpretation of events might be.

Here’s the rest of what I read this week:

Discrimination

• HR’s uneven response to graffiti and swastikas: “Close” counts in horseshoes … not harassment – from Mindy Chapman’s Case in Point

• Is It Okay for Women to Breastfeed at Work? – from Margaret Heffernan at bnet

• Can Employers Prohibit Employees From Expressing Their Religious Views in the Workplace? – from New York Labor and Employment Law Report

• How Sex Hurts the Workplace – from Manpower Employment Blawg

• Hypnosis and Sex Harassment – from The Word on Employment Law with John Phillips

• Harassment by Hypnosis – from Philip Miles’s Lawffice Space

• Posner - “Nebulous suspicions voiced by a busybody” not protected under Title VII – from GT LE Blog

• Diabetic Distinctions: THE ADA AND THE ADAAA – from Employment Essentials

• No good deed goes unpunished – from Work Matters

• “The Company You Keep”: Association Discrimination under the ADA – from George Lenard’s George's Employment Blawg

• 5 Women Sue Toy Company Claiming Sexual Harassment – from Christopher McKinney at the HR Lawyer’s Blog

• “Same Actor” Defense – from The Labor and Employment Law Blog

Wage & Hour

• DOL’s Trojan horse: “We’re from the DOL and We Can Help” – from Dean LeDoux at The HR Specialist

• Latest DOL Opinion On Donning and Doffing, Not So Fast - 6th Circuit Says – from Michael Fox’s Jottings by an Employer’s Lawyer

• Eleventh Circuit Rules for Employees on FLSA Enterprise Coverage – from Florida Employment Law Blog

• “The onslaught of wage and hour litigation continues unabated” – how will you protect yourself? – from CPEhr

• Health Care Industry: DOL Intensified Focus Mandates More Awareness – from Wage & Hour - Development & Highlights

• A looming issue under the FLSA: overtime and technology – from Sindy Warren at the Warren & Hays Employment Law Blog

• Walt Disney World Owes Cast Members Almost $450K Says U.S. Labor Department – from StitchKingdom.com

FMLA

• FMLA FAQ - Is a cold or the flu a serious health condition? – from FMLA Insights

• When Can an Employer Ask for a Second Opinion for FMLA Leave? – from Southwest Florida HR Law & Solutions

• FMLA condition or insubordination? – from Stephen Meyer’s HR Cafe

• Preventive Fitness for Duty Exams – from San Antonio Employment Law Blog

Litigation

• What Was the Most Memorable Deposition You Have Been a Part Of? – from ABA Journal Daily News

• Do You Have a Discovery Plan? – from Katherine Gallo’s Resolving Discovery Disputes

• Sixth Circuit Applies Arbitrability Presumption to Question of Who May Arbitrate – from Sixth Circuit Appellate Blog

• Litigators Losing Love of Arbitration Argue for Trials – from Law.com

Trade Secrets / Non-Competes

• Caution Required: Severability Clauses in Non-Compete Agreements – from Trade Secrets & Non-Compete Blog

• Controlling The Message - The First Step – from Trade Secret / Noncompete Blog

• India and Trade Secrets: Former Board Member of Bombay Company Enjoined as to Some Information, But Not All, He Learned – from Trade Secrets Blog

• Computer Misuse Statutes Playing Bigger Role In Non-Compete and Trade Secret Cases – from Delaware Non-Compete Law Blog

Labor

• The Obama NLRB Starts Flexing Its Muscles – from Jeff Hirsch at the Workplace Prof Blog

• NLRB to Reconsider Cases Involving Voluntary Recognition Agreements, Successor Employers – from Washington D.C. Employment Law Update

• NLRB to Revisit Key Bush-Era Union Recognition Precedents – from Washington Labor & Employment Wire

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

6th Circuit re-defines walking time as working time under the FLSA

In June, the DOL’s Wage & Hour Division issued an Administrator’s Interpretation finding that that the time spent by employees donning and doffing (that is, putting on and taking off) protective equipment required by law is compensable and must be paid. It also means that an employee’s work day begins with the donning of required protective equipment and ends with its doffing, and all of the time in-between is payable work-time. On Tuesday, the 6th Circuit, addressed the same issue in an opinion that is binding on all Ohio employers.

In Franklin v. Kellogg Company [pdf], the Court concluded that the time spent walking between the locker room and the time clock after donning and before doffing protective gear is compensable working time.

The Court started with restating some general principles. Federal wage and hour laws define the “workday” as “the period between the commencement and completion on the same workday of an employee’s principal activity or activities.” Generally, time spent walking to and from a time clock is not compensable. During a “continuous workday,” however, the FLSA covers “any walking time that occurs after the beginning of the employee’s first principal activity and before the end of the employee’s last principal activity … must be compensated.” Principal activities are those that are an integral and indispensable part of the activities which the employee is employed to perform.

Kellogg required all hourly employees to wear company-provided uniforms (pants, snap-front shirts bearing the Kellogg logo and employee’s name, and slip-resistant shoes, and safety equipment (hair and beard nets, safety glasses, ear plugs, and bump caps). Kellogg mandated that employees change into their uniform and safety equipment upon arriving at the plant, and to change back into their regular clothes before leaving the plant, so that the uniform and safety equipment could be washed and cleaned. Kellogg claimed that changing into and out of the uniform and safety equipment is not “integral and indispensable” (and is therefore not compensable) under the FLSA.

The 6th Circuit disagreed, applying a broad interpretation of what is necessary for an employee to perform his or her job. The court evaluated these three factors—(1) whether the activity is required by the employer; (2) whether the activity is necessary for the employee to perform his or her duties; and (3) whether the activity primarily benefits the employer—and concluded:

[D]onning and doffing the uniform and equipment is both integral and indispensable. First, the activity is required by Kellogg. Second, wearing the uniform and equipment primarily benefits Kellogg. Certainly, the employees receive protection from physical harm by wearing the equipment. However, the benefit is primarily for Kellogg, because the uniform and equipment ensures sanitary working conditions and untainted products. Because Franklin would be able to physically complete her job without donning the uniform and equipment, … it is difficult to say that donning the items are necessary for her to perform her duties. Nonetheless, … we conclude that donning and doffing the uniform and standard equipment at issue here is a principal activity. Accordingly, under the continuous workday rule, Franklin may be entitled to payment for her post-donning and pre-doffing walking time.

This opinion has significant implications for any Ohio, Michigan, Kentucky, or Tennessee employer that requires its employees to change into protective gear or mandatory uniforms. After Kellogg, it is clear that the 6th Circuit is going to apply a very broad definition of “integral and indispensable,” even where uniforms or safety gear are not necessary for an employee to perform the job. As long as the donning and doffing is mandatory and provides some benefit to the employer (here, a sanitary workplace), it is compensable working time.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

You are what you wear—at least according to the 6th Circuit and “donning and doffing”

Section 203(o) of the Fair Labor Standards Act allows an employer to refuse to pay employees for time spent changing clothes if it has been excluded by custom or practice under a bona fide collective bargaining agreement:

Hours Worked.—In determining for the purposes of sections 206 and 207 of this title the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.

Yesterday, in Franklin v. Kellogg Company [pdf], the 6th Circuit was presented with the question of whether the donning and doffing of safety equipment constitutes “changing clothes” under section 203(o). At issue was Kellogg’s long-standing policy, adopted by its union contract, of not paying employees for time spent putting on and taking off company-provided uniforms (pants, snap-front shirts bearing the
Kellogg logo and employee’s name, and slip-resistant shoes) and standard safety equipment (hair and beard nets, safety glasses, ear plugs, and bump caps).

After noting that the Department of Labor has changed its mind at least three times on whether safety equipment qualifies as “clothes” under 203(o), the 6th Circuit applied a common sense, dictionary definition to settle the dispute:

A leading dictionary defines “clothes” as “clothing,” which itself is defined as “covering for the human body or garments in general: all the garments and accessories worn by a person at one time.” … Thus, the plain meaning of the word “clothes” is quite expansive. However, because the statute indicates that § 203(o) applies to changing into clothes worn during the workday, Congress was referring to clothes worn for the workday and not simply “ordinary” clothes. … Accordingly, there is no reason to limit the definition of clothes to uniforms, which are made up of pants and shirts…. Instead, “clothes” within the meaning of § 203(o) refers to any “covering for the human body or garments in general,” particularly those worn for work….

Given the context of the workday, § 203(o) clearly applies to the uniform at issue in the case at hand. The remaining items—hair and beard nets, goggles, ear plugs, nonslip shoes, and a bump cap—are also properly construed as clothes within the meaning of § 203(o). Each of these items provides covering for the body. Although they also provide protection to the body, we see no reason to distinguish between protective and non-protective clothes. It is arguable that even the uniform, which is clearly clothing, provides protection to the body. We recognize that there may be some heavier protective equipment than what is at issue here that is not clothing within the meaning of § 203(o). However, the items at issue here are simply “standard safety equipment.”

In other words, because the safety equipment serves as a covering for the body, it qualifies as “clothes” under section 203(o).

Unless you are a unionized employer with a contract that codifies a custom or practice of nonpayment for time spent changing clothes, this opinion is of little practical import. It serves, however, as a good example of a court cutting to the chaff and applying its common sense to arrive at a practical result.

Tomorrow, I’ll be back with an analysis of the second part of this opinion (which will be of greater interest to many more employers)—whether Kellogg’s employees are entitled to be paid for time spent walking between the locker room and the time clock.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Challenging non-competition agreements

While my practice is heavily slanted towards the representation of management in employment disputes, from time to time I represent employees. Usually, it’s in an advisory role with non-compete agreements, when someone leaves one position for another.

Employees faced with a non-compete when leaving a job to work for a competitor or quasi-competitor have three choices:

1. Approach the old employer—either as part of severance negotiations or otherwise—and attempt to negotiate or buy your way out of the non-compete.
2. Work for the competitor and wait to get sued.
3. Preemptively sue your old employer seeking a declaration that the non-compete is invalid.

In all likelihood, if you ignore option number 1, or negotiations fail, you, and maybe your new employer, will get sued. The latter option, though, has some great upside for employees with specious non-competes. It lets you control the timing and venue of the lawsuit. It also lets you play offense instead of defense in trying to void or modify an overly broad agreement. For a good example of where this strategy worked well, see Jacono v. Invacare Corp. The downside, of course, is the expense. Something to consider if you are faced with a new job and a non-compete of dubious enforceability.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Not another post on wage and hour class actions?

I know what you’re thinking—not another post on wage and hour compliance. Workplace compliance specialist ELT published the results of a recent survey that caught my eye:

The money on the table for wage and hour class action settlements is huge, averaging $23.5M at the federal level and $24.4M at the state level. With the majority of employers already out of compliance with wage and hour laws, these are the kind of open and shut cases plaintiff’s law firms love to take on. Although these lawsuits are often positioned as valiant efforts toward worker protection, most of the money ends up in the hands of the attorneys while many class participants see as little as a few hundred dollars.

Average settlements over $20 million for “open and shut” cases should certainly get your attention. Yet, as long as businesses continue to ignore wage and hour compliance, I’ll continue to write posts about it.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #141 (the creepy-crawly edition)

It all started with a short press release from the National Pest Management Association, which announced the results of the 2010 Comprehensive Global Bed Bug Study. Now the press is all over this bed bug story (The Bed Bug Hub: One-Stop Shop for Bed Bug Information for a collection of links), and people everywhere are itching. Once limited to hotels, the little buggers are even showing up in downtown offices, which poses its own unique set of problems for employers (More offices see bedbug infestations). I’m phantom-scratching myself as I write this. Yick!

Anyhow, here’s the rest of what I read this week:

Social Media & Technology

• Twitter Law (cont.): Doctor Drives Off Cliff While Sending Twitter Message – from Bruce Carton at Law.com - Inside Opinions: Legal Blogs

• Fired: Wore Wrong Hat, Tweeted Wrong Tweet, Misused Facebook – from The Word on Employment Law with John Phillips

• Germany to Outlaw Facebook Stalking Employees – from Frank Roche’s KnowHR Blog

• The Tsunami of Smartphones in Computer Forensics – from Sharon Nelson’s Ride The Lightning

• Fired Employee Makes Unauthorized Changes to Company Website and How to Prevent this From Happening to Your Company – from Defending The Digital Workplace

• Social Media Screening (Potential Hires): Part 1 – from Rob Radcliff’s Smooth Transitions

Wage & Hour

• US Chamber of Commerce Apologizes, But Don’t Be Fooled – from Michael Whitney’s Work in Progress by

• A Wrong and Wrong-Headed Look at the Wage Gap – from David Chavern at the ChamberPost

• Just In Case You Didn’t the Feds Were Controlling Enough In HR – from Michael Haberman’s HR Observations

• Hospitals and Nursing Homes Are Focus of the Department of Labor over Wage Violations – from Wage & Hour Defense Blog

• Nursing Mothers Get a Timeout – from Matthew Gibson’s Wills & Wealth

• Insufficient notice of need for FMLA leave proves fatal for insubordinate employee – from Sindy Warren at the Warren & Hays Employment Law Blog

• Email Time is Probably Compensable Time – from Tom Crane San Antonio Employment Law Blog

• FMLA FAQ - What To Expect When The DOL Comes Knocking – from FMLA Insights

Discrimination

• Statistical Analysis of the Twombly Era – from Philip Miles’s Lawffice Space (guest post by Stephanie Thomas)

• The ADA at 20 - how changes impact your business – from Employment Law Bits

• Religious Discrimination Claims on High – from Employment Essentials

• Tasting Breast Milk And Other Alleged Misdeeds in the Library of Congress – from Adria Martinelli at the Delaware Employment Law Blog

• 3rd Circuit Affirms Workplace Head Scarf Ban – from Fitzpatrick on Employment Law

Litigation

• Lawsuit demands $38 quadrillion – from Walter Olson’s Overlawyered

• $38 Quadrillion Demand is World’s Second Largest – from Lowering the Bar

• Mediator needed to change ‘Ground Zero Mosque’ dialogue – from Lee Jay Berman’s Eye on Conflict

• Civility and Litigation – from Evan Schaeffer’s Trial Practice Tips Weblog

Employee Relations

• What Are Dress & Grooming Policies Doing to Your Talent Pool? – from Lance Haun at TLNT

• How to Tell When Your Boss Is Lying: Cool New Study – from Bob Sutton

• How Not to Obtain a Good Reference From a Former Employer – from employeescreenIQ Blog

Trade Secrets and Competition

• Top Ten Mistakes Made by Departing Employees and Top Ten Things to Do When an Employee Resigns to Join a Competitor – from Trade Secrets & Non-Compete Blog

• Eleventh Circuit Finds 43-City Non-Compete Enforceable Under Georgia Law – from Trading Secrets

• Hooters and the Heavy Consequences of Having Boobs – from Elie Mysta at Abovethelaw.com

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Wal-Mart seeks Supreme Court review of billion-dollar class action

Yesterday, the nation’s largest private employer asked the Supreme Court to review the class certification of the nation’s largest employment discrimination lawsuit. The case—Dukes v. Wal-Mart—is remarkable for several reasons:

1. It has been pending for nine years, and yet the parties are still dealing with the preliminary procedural issue of whether this case will proceed as a class action.
2. The plaintiffs seek a nationwide class, to include every woman employed by Wal-Mart for the past decade, in any of Wal-Mart’s 3,400 separately managed stores, across 41 regions and 400 districts, in any of 53 departments and 170 different job classifications. In other words, there is not much similar about these women other then the fact that they all worked for Wal-Mart.
3. The potential class is more than 1.5 million women.
4. The potential damages are billions.

Steven Greenhouse, at the New York Times, frames the dispute on the class certification issue:

Mr. Boutrous [one of Wal-Mart’s lawyers] said that even if the seven lead plaintiffs had suffered discrimination, that did not mean there was across-the-board bias at thousands of stores nationwide. He said the women’s claims should be tried individually, or if a manager discriminated against a store’s 200 women employees, then perhaps as a 200-member class action for those women.

Joseph Sellers, a lawyer for the plaintiffs, said the case should be a class action because Wal-Mart had and still has a common set of personnel policies at all of its stores. “We regard them as cookie-cutter operations that are similar to each other,” he said.

Wal-Mart—which strongly disputes liability and describes itself as “a leader in fostering the advancement and success of women in the workplace”—has asked the Supreme Court to review the propriety of a class action seeking money damages under the class action provision for injunctive or declaratory relief. The New York Times has available for download a PDF of Wal-Mart’s brief.

There is a lot at stake for businesses in the Supreme Court’s decision of whether to accept review of this class certification. A refusal by the Supreme Court to hear this case, or, worse yet, an affirming of the class by the Court, would greatly increase the risk for employers defending employment decisions (and resulting class actions) that involve disparate groups of employees, reporting to different managers, and working in different facilities. It would result in larger classes with a higher potential for recovery, neither of which is good for companies. It’s safe to say that the class action epidemic in this country would get a whole lot worse.

I am certain I will be one of many blogger commenting today on this case. For a snapshot of what some others have already said, take a look at the following:

• Dukes v. Wal-Mart certiorari petition – from Ted Frank at PointOfLaw Forum
• Dukes v. Wal-Mart Cert. Petition – from Workplace Prof Blog
• Wal-Mart appeals in job bias case – from SCOTUSblog

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.