Wage & Hour Counsel : Wage & Hour Lawyer & Attorney : Littler Mendelson Law Firm : Employment Law, Labor Relations

In Allen v. McWane, the Fifth Circuit considered whether an employer is required to pay for pre- and post-shift donning and doffing of protective gear under Section 203(o) of the Fair Labor Standards Act (FLSA) where the company and the union never discussed the issue, and where the employees (and union representatives) attested that they were not even aware that changing time could potentially be compensated under the FLSA. Section 203(o) of the FLSA provides that an employer does not have to pay its employees for time “changing clothes or washing at the beginning or end of each workday ... by custom or practice under a bona fide collective bargaining agreement.” 29 U.S.C. § 203(o).

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In Sepulveda v. Allen Family Foods, Inc., the Fourth Circuit held that the company does not have to pay its employees for time spent donning and doffing because it was the subject of collective bargaining between the union—the United Food and Commercial Workers Local 27—and the company. Specifically, the issue in this case was whether time spent donning and doffing protective gear at a unionized poultry processing plant constituted “changing clothes” within the meaning of Section 203(o) of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. This section provides that that an employer does not have to pay its employees for time “changing clothes or washing at the beginning or end of each workday ... by the express terms of or by custom or practice under a bona fide collective bargaining agreement.” 29 U.S.C. § 203(o).

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In Collins v. Heritage Wine Cellars Ltd. (7th Cir., No. 09-1181, Dec. 21, 2009), the Seventh Circuit Court of Appeals analyzed the extent to which drivers who delivered wine exclusively within the State of Illinois were engaged in interstate commerce and, therefore, not entitled to overtime under the Motor Carrier Act exemption to the Fair Labor Standards Act. Specifically, this exemption from overtime applies to employees of a motor carrier if “property ... [is] transported by [the] motor carrier between a place in a State and a place in another State,” provided the employees “engage in activities of a character directly affecting the safety of operation of motor vehicles in the transportation on the public highways of passengers or property in interstate or foreign commerce within the meaning of the Motor Carrier Act.” As the court noted, “[t]he shipment itself must be in some sense interstate commerce (transportation between a place in a state and a place in another state).”

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Several new wage and hour bills made it through various state legislatures during the second half of the year. Below is a wrap up of some new developments (including regulatory updates) from July 1st through December 31st. Click here to read our post on changes to state minimum wages.

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The federal minimum wage remains unchanged at $7.25/hr. However, various states will either increase or decrease their state minimum wages come January 1, 2010, whereas other states have elected not to change their current rate.

States that are increasing their minimum wage

Alaska
$7.75/hr. Effective January 1, 2010 the minimum wage must be at least fifty cents more than the federal minimum wage. Alaska Statutes, §23.10.065.

Connecticut
$8.25/hr. Effective January 1, 2010, the Connecticut minimum wage will increase from $8.00/hr to $8.25/hr. General Statutes of Connecticut, §31-58.

Kansas
$7.25. Effective January 1, 2010, Kansas’s minimum wage increases from $2.65/hr to $7.25/hr. Kansas General Statutes § 44-1203.

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The federal Department of Labor (DOL) recently announced its intent to revise the regulations governing the recordkeeping requirements imposed on employers by the Fair Labor Standards Act. Specifically, the DOL’s Wage and Hour Division intends to propose revised regulations that would require employers to disclose how many hours were worked in a pay period, how pay has been computed, what deductions are being made, and whether proper time and one-half overtime pay has been included for overtime hours worked for each pay period.

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In Barbosa v. IMPCO Technologies, Inc., the California Court of Appeals for the Fourth District held that terminating an employee for exercising his statutory right to overtime wages out of a reasonable, good faith belief of entitlement to it, (notwithstanding the subsequent discovery that he was wrong), was contrary to California public policy.

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In Christopher v. SmithKline Beecham,¹ 2009 U.S. Dist. LEXIS 108992 (D. Ariz. Nov. 20, 2009), a federal district court in Arizona held that pharmaceutical sales representatives (PSRs) were “outside salespeople” and therefore exempt from the overtime provisions of the Fair Labor Standards Act (FLSA).

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Employers beware! This is the message emanating loud and clear from the Obama Administration's Department of Labor. Secretary of Labor Hilda Solis recently announced that the Department is dramatically increasing its enforcement of federal employment laws with an additional 250 new wage and hour investigators. This influx of new investigators boosts the departmental investigative staff by a full one third.

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