In a recent opinion, a federal trial court in Illinois clarified that an employee can voluntarily waive the right to bring (or participate in) a class or collective action. Brown v. Sears Holding Mgmt Corp., 09-C-2203 (N.D. Ill. Aug. 17, 2009). The court also recognized that employees can waive legal rights arising under common law for non-payment of wages (an issue that was not disputed in the case).
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It’s not often that employers get the chance to “peek behind the curtain” into the U.S. Department of Labor’s internal techniques and strategies for conducting wage and hour investigations under the Fair Labor Standards Act (FLSA). The Department usually keeps its investigation methods confidential, and takes the position that such information is protected from disclosure under the Freedom of Information Act and the investigation privilege.
Recently, employers got a rare chance to look inside the Department’s policies and procedures in an FLSA overtime case brought by the Department against the Washington State Department of Corrections (DOC). In Solis v. State of Washington, Case No. 08-5362RJB (W.D. Wash.), the Department brought suit against the DOC for failing to keep proper records and failing to pay overtime wages to 872 state corrections officers. In response to the Department’s claims, the DOC asked the Department to produce its investigation files and records. Surprisingly, as part of its response to the DOC’s discovery requests, the Department produced a copy of its internal “Introduction to Full Investigation and Litigation (FIL) Training.” The Department uses the FIL Training guide to teach wage and hour investigators how to conduct effective investigations. As explained in the guide:
Continue Reading...Our goal is to improve our ability to complete quality, full investigations that will convince employers that they have no choice but to change their violative behavior, or failing that, to provide a winning litigation case to the SOL [Solicitor of Labor].
The Equal Employment Opportunity Commission (EEOC) has revised a portion of its Compliance Manual addressing the timeliness of filing pay discrimination claims in light of the Lilly Ledbetter Fair Pay Act, which was enacted on January 29 of this year. This law overturned the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007), which required plaintiffs to file a charge of compensation discrimination within 180 days (300 in jurisdictions that have a local or state law prohibiting the same form of pay discrimination) of the discriminatory act or decision. Continue reading on Littler's Washington D.C. Employment Law Update.
Kellogg Company (Kellogg) was granted summary judgment and dismissal of claims raised by a manufacturing employee in its Rossville, Tennessee manufacturing plant. In Franklin v. Kellogg Company, C.A. No. 08-2268 (W.D.Tenn.), the district court held that time spent by manufacturing employees changing into and out of company-issued gear was noncompensable under Section 3(o) of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. This is because Section 3(o) excludes time spent by employees donning and doffing “clothes” from compensable hours worked where such time is either explicitly addressed in a collective bargaining agreement, or by custom or practice established under a collective bargaining agreement.
Plaintiff Alice Franklin claimed that she was entitled to compensation for time spent changing into and out of company uniforms and other gear both prior to and after her work shifts. She sought to represent Kellogg employees on a nationwide basis. Ms. Franklin’s motion to certify a collective action under the FLSA, however, was rendered moot by the court’s finding in favor of Kellogg. As an initial matter, the court found that the company uniform and standard equipment used by the plaintiff constituted “clothes” under Section 3(o). The uniforms in question consisted of pants, snap front shirts and slip-resistant shoes and the standard equipment included hair nets, beard nets, safety glasses, ear plugs and bump caps. The court relied on its prior decision in Sisk v. Sara Lee Corp., 590 F. Supp. 2d 1001 (W.D.Tenn. 2008), holding that protective gear worn by meat processing employees fell under the definition of clothes under Section 3(o). It found that plaintiffs failed to present any compelling reason to reconsider that holding.
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On July 23, 2009, the Eleventh Circuit Court of Appeals affirmed a district court’s grant of summary judgment in favor of American Coach Lines of Miami, Inc. (ACLM). The court held that the plaintiffs, current and former bus drivers of ACLM, qualified for the motor carrier exemption to the federal Fair Labor Standard Act (FLSA) and were therefore not entitled to overtime compensation. Walters, et al. v. American Coach Lines of Miami, Inc., No. 08-15636, 2009 WL 2182419 (11th Cir. July 23, 2009). ACLM’s business operations included, among other things, shuttling cruise ship passengers via bus between the Miami and Fort Lauderdale airports and local hotels and cruise ship ports under contract with cruise lines.
In reaching its conclusion, the court first determined that ACLM was subject to the Secretary of Transportation’s jurisdiction under the Motor Carrier Act (MCA) because ACLM was licensed by the Department of Transportation (DOT), held all of the required authorizations from the Federal Motor Carrier Safety Administration, and had been audited in the past by the DOT. Additionally, ACLM provided bus services that crossed state lines, derived approximately four percent (4%) of its revenue from interstate trips, and held itself out as an interstate motor carrier. Notably, the court rejected the plaintiffs’ de minimis argument – i.e. that ACLM did not fall under the Secretary of Transportation’s jurisdiction because it did not engage in a sufficient number of interstate trips – noting that analysis of the de minimis question requires consideration of both the number of interstate trips made and the percentage of revenue generated by those trips, and suggesting that the de minimis requirement may be altogether inapplicable in situations where a company holds the appropriate federal licensing and there is undisputed proof of some travel across state lines.
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