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

Section 203(o) of the Fair Labor Standards Act provides that time spent changing clothes or washing at the beginning or end of the workday may be excluded from hours worked pursuant to the terms of, or custom or practice under a collective bargaining agreement. Many states impose their own wage and hour requirements, however. In Spoerle v. Kraft Foods Global, Inc., the Seventh Circuit Court of Appeals concluded that Section 203(o) does not preempt state wage and hour law that does not contain an equivalent exception for time spent changing clothes or washing at the beginning or end of the workday.

• Email This
• Print
• Trackbacks
• Share Link

Back in April, we reported that the Division of Wage and Hour Compliance at the New Jersey Department of Labor and Workforce Development was reconsidering its prior enforcement policy rejecting federal “rounding” rules under New Jersey law. On July 6, the Department formally announced its proposal to adopt a new rule which would adopt, verbatim, the federal regulation regarding the use of time clocks and rounding practices. The Department explained that

“[The proposed new rule would] eliminate any possible confusion regarding the Department’s wage and hour enforcement policy relative to the use of time clocks and ‘rounding’ practices.”

Specifically, the proposed rule will bring New Jersey back into conformity with federal law, creating a “straight forward and simple approach” for employers in New Jersey.

A public hearing on the proposed new rule will be held on July 29, 2010, at the office of the New Jersey Department of Labor and Workforce Development in Trenton, New Jersey.

This entry was written by Robert W. Pritchard.

• Email This
• Print
• Trackbacks
• Share Link

On June 16, 2010, Nancy J. Leppink, Deputy Administrator of the U.S. Department of Labor, Wage and Hour Division, issued the second in her inaugural series of Administrator's Interpretations. Unfortunately, this newest interpretation (pdf), like the first, seems to reflect a continued effort by the Wage and Hour Division to reject certain key interpretations of the Fair Labor Standards Act (FLSA) issued during the Bush Administration.

In the latest interpretation, the Administrator examines whether protective equipment worn by union employees can be considered "clothes" for purposes of section 203(o) of the FLSA and whether clothes changing covered by section 3(o) constitutes a principal work activity. Section 203(o) provides that time spent “changing clothes or washing at the beginning or end of each workday” is excluded from compensable time under the FLSA if the time is excluded from compensable time pursuant to “the express terms or by custom or practice” under a collective bargaining agreement. 29 U.S.C. § 203(o).

This is not the first time the Administrator has examined this issue. In fact, since 1997 the Administrator has issued a series of conflicting opinion letters. In 1997, 1998 and 2001 opinion letters the DOL concluded protective equipment was not "clothes." In contrast, in 2002 and again in 2007, the Administrator found that "clothes" included protective equipment. The newest letter reaffirms the narrow interpretation of "clothes" found in the 1997, 1998 and 2001 opinion letters and rejects the interpretation contained in the 2002 and 2007 letters that protective equipment constitutes clothes for purposes of Section 203(o).

• Email This
• Print
• Trackbacks
• Share Link

On May 19, 2010, the U.S. Department of Labor announced the publication of final regulations concerning child labor. Included in the regulations are increased penalties for child labor violations.

The maximum penalty for repeatedly or willfully violating the Fair Labor Standard Act’s minimum wage and maximum hours provisions, relating to wages, increased from $1,000 to $1,100 per violation.

• Email This
• Print
• Trackbacks
• Share Link

For those of you following the Jaimez v. Daiohs USA, Inc. case, on May 12, the California Supreme Court denied defendant Daiohs' requests for review and depublication of the appellate court's decision. For those of you who have not been following the Jaimez case, read on. The decisions of both the California court of appeal and California Supreme Court are as significant as they are discouraging.

• Email This
• Print
• Trackbacks
• Share Link

As we reported last year, the Division of Wage and Hour Compliance at the New Jersey Department of Labor and Workforce Development rejected federal “rounding” rules for enforcement purposes under New Jersey law. Specifically, while the U.S. Department of Labor assesses the impact of rounding “over a period of time” (and allows rounding practices that “average out” over time), the Division announced that it would evaluate the impact of rounding on a week-to-week basis. According to the Division, if an employer rounds, it must be to the benefit of the employee each week in order to comply with New Jersey law.

• Email This
• Print
• Trackbacks
• Share Link

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.

• Email This
• Print
• Trackbacks
• Share Link

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.

• Email This
• Print
• Trackbacks
• Share Link

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.

• Email This
• Print
• Trackbacks
• Share Link

In a putative class action pending in the Northern District of California filed by Catherine Sullivan against Kelly Services, Inc. (Case No. C 08-3893 CW), Judge Claudia Wilken ruled in a summary judgment motion that the time spent interviewing by Kelly Services' employees seeking temporary work assignments with Kelly Services' clients is compensable under California law. However, Judge Wilken also ruled that the time spent preparing for and commuting to the client interviews was not compensable, and that Kelly Services was not required to reimburse the employees for expenses incurred in attending the interviews. Judge Wilken found that under the facts of this case, the employees were "subject to the control" of Kelly Services and that Kelly Services "suffered or permitted" the employees to work in connection with the interviews. She rejected the defense argument that the client interviews were "voluntary," finding that the failure to interview would prevent the employee from being considered for 50% of the job assignments . She also rejected the defense argument that the interviews were not time worked as the employees were not employed in between work assignments, finding this latter argument inconsistent with the position taken by the employer in a prior action between the parties.

• Email This
• Print
• Trackbacks
• Share Link

On January 21, 2009, the City of Phoenix obtained summary judgment in a collective action brought by approximately 600 police officers claiming millions in unpaid work. What were the officers claiming? That the City should have compensated them for time spent putting on and taking off police uniforms and gear. In the matter of Dager et al. v. City of Phoenix, Case No. 2:06-cv-01412-PHX-JWS, the U.S. District Court for the District of Arizona ruled that the City did not have an obligation to pay its police officers for the time spent donning and doffing (i.e., putting on and taking off ) their police uniforms and gear. Specifically, Judge John Sedwick held that under Ninth Circuit precedent and the persuasive guidelines of the U.S. Department of Labor, only those employees actually required to change at work could claim that the time spent donning and doffing was compensable. The evidence in the case showed that the City allowed officers to change at home or at the station, depending on their own preference, and that a significant number of officers, including some of the claimants, regularly changed into their uniforms and/or gear at home. The court also held that, although the City's police department required officers to wear certain specified uniforms and protective gear, the uniform itself was not 'necessary" to the performance of police work (as the term necessary is defined under applicable regulations and case law).

• Email This
• Print
• Trackbacks
• Share Link