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

In a case of great significance to public employers, the Ninth Circuit issued a decision holding that the time spent putting on and taking off required uniforms and gear does not constitute compensable work for police officers. In Bamonte v. City of Mesa (9th Cir. 08-16206) the claimants were current and former police officers of the City of Mesa who contended that they ought to be paid for the time it took them to put on and take off their uniforms and gear at the beginning and end of their shift, a process referred to as donning and doffing. The City argued that although it required every patrol officer to wear a proper uniform, the City imposed no restriction on where each officer put on or took off that uniform and gear. Therefore, because officers were not required to don and doff exclusively at work, the City had no legal obligation to pay for the time devoted to donning and doffing. The trial court agreed and granted summary judgment to the City. On March 25, a panel of the Ninth Circuit affirmed the lower court's decision in a 2-1 opinion. Officers in many other law enforcement agencies throughout the West filed similar lawsuits, but the Bamonte case is the first to be the subject of a substantive decision by the Ninth Circuit.

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In a development that may have significant implications for mortgage lenders and other financial services employers, the Department of Labor has issued a new Administrator's Interpretation finding that mortgage loan officers do not qualify as exempt administrative employees under the FLSA, reversing its prior position and withdrawing previous opinion letters concluding to the contrary. To continue reading about this development, see Littler's ASAP Department of Labor Reverses Course: Mortgage Loan Officers Do Not Meet the Administrative Exemption's Requirements by Robert W. Pritchard, R. Brian Dixon and Andrew J. Voss.

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In Schmidt v. Eagle Waste & Recycling Inc., the Seventh Circuit Court of Appeals affirmed the district court’s grant of summary judgment to a Wisconsin waste removal company and agreed that the defendant properly classified its former “account representative” as exempt under the Fair Labor Standards Act (FLSA). The plaintiff had been hired as a “sales representative,” but had adopted the title “account representative,” with the defendant’s permission. Several months after the plaintiff’s employment ended, she sued the defendant under the FLSA for failing to pay her for overtime. The district court granted the defendant’s motion for summary judgment, concluding that the plaintiff’s sales and marketing duties rendered her exempt under both the outside sales and “combination” exemptions to the FLSA. On appeal, the Seventh Circuit agreed.

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In its first Administrator Interpretation Letter, the Wage and Hour Division of the U.S. Department of Labor (DOL) announced today that mortgage loan officers do not qualify as bona fide administrative employees under section 13(a)(1) of the Fair Labor Standards Act (FLSA). In reversing its prior stance on the issue, the DOL withdrew two opinion letters issued on September 8, 2006 and February 16, 2001, in which it previously had found that loan officers were exempt administrative employees.

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The U.S. Supreme Court has agreed to review the Seventh Circuit’s decision in Kasten v. Saint-Gobain Performance Plastics (7th Cir. 2009), in which that court held that an oral complaint of a violation of the Fair Labor Standards Act (FLSA) is not considered protected conduct under the Act’s anti-retaliation provision. Continue reading about this development at Littler's D.C. Employment Law Update blog.

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The U.S. Court of Appeals for the Ninth Circuit applied the First Amendment’s “ministerial exception” to the claim of a Catholic seminarian, affirming the district court’s Rule 12(c) dismissal of the plaintiff’s claim for overtime pay under the Washington Minimum Wage Act (WMWA). In Rosas v. Corp. of the Catholic Archbishop of Seattle, the Ninth Circuit adopted a new test for determining whether a person is a “minister” for purposes of the ministerial exception.

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The Washington State Department of Labor & Industries (“L&I”) has approved a number of housekeeping revisions to the Washington state wage and hour regulations contained in Chapter 296-126 of the Washington Administrative Code (WAC). The revisions take effect on March 15, 2010.

As explained by L&I, the purpose of the revisions is to “repeal and delete outdated requirements; remove duplicative provisions; establish rules consistent with current statutory requirements; specify the information for certain requirements; create cross references and update definitions and terms for consistency and clarity.”
 

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In Bergman v. Monarch Construction Company, the Ohio Supreme Court considered whether, in an employee-initiated enforcement action, the penalties set forth in Ohio Revised Code section 4115.10(A) are mandatory and must be imposed against a party found to have violated the prevailing wage law. In a 5-2 majority opinion, the supreme court rejected the reasoning adopted by the trial court and the Twelfth District Court of Appeals, both of which had interpreted the language in section 4115.10(A) as giving the trial court discretion to enforce the prevailing wage penalties. The supreme court observed that in section 4115.10(A), the phrase “may recover” refers to the choice the underpaid employee can make to enforce his or her right to recover the underpayment, not the court’s choice to enforce the penalties. Therefore, if the employee chooses to enforce his or her statutory right to recover unpaid wages, and successfully proves his or her case, a 100% penalty must be assessed against the employer for violating the prevailing wage law. For further analysis, see Littler’s ASAP Ohio Supreme Court’s Ruling on Penalties Ups the Ante for Contractors Subject to Ohio’s Prevailing Wage Law by Heidi Alten and Neil Grindstaff.

This entry was written by Neil Grindstaff.

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In its ongoing enforcement efforts of California's public works laws, the State Labor Commissioner's Office issued a press release on March 10, 2010, announcing that two Southern California contractors would be prohibited from bidding on or receiving any public works projects for three years beginning April 19, 2010. California Labor Commissioner Angela Bradstreet explained that the Orders of Debarment were necessary due to the contractors’ “deliberate and willful attempts to skirt the law,” which “will not be tolerated as they take unfair advantage of employees as well as tax payers who fund these public works projects.”

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The Ninth Circuit recently re-issued an opinion that illustrates the many work-time issues raised when employees commute between home and service sites in company vehicles. Rutti v. Lojack Corporation (9th Cir., No. 07-56599, Mar. 2, 2010). The court affirmed its initial, important finding that an employer can make commuting in a company vehicle a condition of employment without affecting the compensability of the commute time under the federal Employment Commuter Flexibility Act (ECFA). The court of appeals affirmed its initial finding that small amounts of time spent in the morning working out the route for the day were not compensable work time either because the time was incidental to the commute and, therefore by definition not work time, or was so de minimis as to not be considered to be work time.

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The County of Miami-Dade in Florida recently enacted a "Wage Theft " ordinance which makes it a crime for an employer to "fail to pay any portion of wages due to an employee, according to the wage rate applicable to that employee, within a reasonable time from the date on which that employee performed the work for which those wages were compensation."

The law defines the term "reasonable time" to mean within 14 days, unless the employer and employee agree in a writing signed by the employee to extend the deadline for payment up to 30 days from the original date . Under the new law, employees owed $60 or more in wages may file a complaint with the county. The county will then serve the employer with notice of the claim and a hearing officer will determine the amount of past wages owed and assess liquidated damages equivalent to double the amount of past wages owed. The new law became effective on February 28, 2010.

This entry was written by Paula Steele.

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The New York State Department of Labor ("NY DOL") is in the process of combining separate restaurant and hotel industry minimum wage orders into a single wage order which will be called the Hospitality Industry Wage Order. Although the NY DOL has not yet issued regulations for this consolidated wage order, a Labor Commissioner Order dated November 5, 2009 foretells the major changes in store for non-exempt employees in the hospitality industry. For more information on the changes, see Littler’s ASAP Here’s A Tip: New York is Overhauling the Restaurant and Hotel Industry Wage Orders by Gerald T. Hathaway and Lisa M. Brauner.

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