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

With major support coming from the California Rural Legal Assistance Foundation, A.B. 240 was introduced as a solution to the perception of unequal remedies. The bill’s proponents argued that the current system discouraged employees from bringing their claims in the simpler and less-costly DLSE process, as that agency could not award liquidated damages for the subject claims as a court could. The bill’s supporters also included various labor organizations, while an array of business entities opposed the measure. The bill was based on a nearly identical measure passed by the Legislature in 2007, but vetoed by then-Governor Arnold Schwarzenegger.

Effective January 1, 2012, the difference in remedies between filing such a claim in court or before the Labor Commissioner will be eliminated, as A.B. 240 amends California Labor Code sections 98 and 1194.2. The amended statutes will allow the Labor Commissioner to award liquidated damages to a successful employee. The Labor Commissioner will also have the discretion, as the court now does, to award reduced or no liquidated damages if the employer proves that it acted in good faith and that it had reasonable grounds for believing that its act or omission was not a violation of any provision of the Labor Code relating to the minimum wage, or an order of the commission.

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While it may sound simple to determine what it means to “change clothes,” the issue is not so simple, particularly when the clothing also protects the employee. Is an apron “clothing”? Is a hardhat? What about mesh gloves? Or arm guards? Steel-toed shoes? Where to draw the line? The Wage and Hour Division of the Department of Labor has shifted its opinion three times. First, in 1997 it took the position that protective safety equipment worn over apparel was not “clothing.” Then, in 2002 it took a 180 degree turn, declaring that “changing clothes” applies to “the putting on and taking off of the protective safety equipment typically worn in the meat packing industry. . . .” In 2010 the Division completed the circle by concluding that changing clothes “does not extend to protective equipment worn by employees that is required by law, by the employer, or due to the nature of the job.”

In Salazar, unionized employees of a turkey processing plant in Colorado wore aprons, plastic sleeves, gloves, hard hats, earplugs, and some even wore mesh gloves, knife holders and arm guards. They sought compensation for their time “donning” or “doffing” these items each day. In affirming summary judgment for the employer, the Tenth Circuit declined to defer to the Wage & Hour Division’s most recent interpretation of the law, or any of its interpretations, because it had reversed course three times. Moreover, the court declared the agency’s current position is “not . . . particularly well-reasoned.”

Instead, the court took a common sense approach, finding that the ordinary meaning of “clothes” encompassed all of the items worn by these plant workers, and rejecting any distinction based on whether the items are “ordinary,” “street clothes,” or worn for safety or protective purposes, as not “particularly coherent or workable.” The court also discarded the approach taken by the Ninth Circuit—the one federal circuit court that has ruled to the contrary—that “generic” protective clothing, such as boots, frocks and hard hats, should be distinguished from “unique” protective clothing, such as mesh gloves or knife holders. The “unique” equipment worn by these turkey plant workers was not viewed as sufficiently cumbersome, heavy or complicated to fall outside of the definition of “clothes.”

With this latest ruling, we now have six federal appellate circuit courts finding that donning and doffing protective equipment is not compensable work time under these circumstances, and one going the other way. But the battle over what constitutes compensable time changing “clothes” no doubt will continue to rage, at least until more cases clearly delineate when employees must be paid for putting on or taking off their protective equipment.

Photo credit: Matt Collingwood

The DOL intends to explore updates to this application to make it or similar versions compatible with other smartphone platforms, such as the Android and BlackBerry.

The DOL also has made available a printable work hours calendar for workers who do not own smartphones. This downloadable calendar allows workers to track their rate of pay, start and stop times, and arrival and departure times, and includes information about workers’ wage and hour rights and how to file a wage violation complaint. The new app poses several concerns for employers. First, the app has the potential to create confusion where, for instance, an employer has a permissible time entry rounding system in place. Because the app does not provide for rounding, in such instances, there may be discrepancies between the amount of time recorded by an employee (and the amount of wages calculated by the app to be due) and the employer's time records. Second, the app could potentially be abused by workers who “clock in” on the app before their actual start time, clock out after their actual stop time, or fail to accurately record non-compensable breaks. Employers should be mindful of these potential problems if an employee attempts to present data from the app as “evidence” of improper wage payment. In fact, the app itself includes a disclaimer of which employers and employees should be aware:

Disclaimer: This App is designed as a reference tool. It does not include every possible situation encountered in the workplace. Some situations not addressed in this App may yield a different result in the calculation of total pay. These include, but are not limited to, situations where, for example, the employee is not covered by the Fair Labor Standards Act or is exempt from the minimum wage and/or overtime pay requirements of the FLSA. Further, the conclusions reached by this App rely on the accuracy of the data provided by the user. Therefore, DOL make no express or implied guarantees as to the accuracy of this information.

Notwithstanding the potential issues raised by the app, employees should not be prohibited from using it at work, as its use may constitute protected activity under the Fair Labor Standards Act and similar state wage laws. However, employers may permissibly enforce existing information technology policies regarding the installation of the app on company-provided electronic devices.

Photo credit: Alex Slobodkin

The court’s reliance on Amex was surprising considering the Supreme Court’s recent order vacating and remanding the judgment in that case to the Second Circuit for reconsideration in light of Stolt-Nielsen S.A. v. Animal Feeds Int’l Corp, 130 S. Ct. 1758 (2010) (“Stolt-Nielsen”). In Stolt-Nielsen, the Supreme Court held that class arbitration is not permitted unless the parties agree to it. The district court determined, however, that Amex remained persuasive authority and analyzed Sutherland’s case using the factors articulated there.

Based on this analysis, the district court determined that the arbitration agreement at issue was unenforceable. Specifically, the court found that Sutherland’s maximum potential recovery of approximately $1,867.02, was “too meager to justify” her expenses, which were likely to exceed $200,000. The court reasoned that under these circumstances, Sutherland was unlikely to find an attorney willing to represent her. By contrast, if Sutherland was permitted to aggregate her claim with similarly situated individuals, “she would have no difficulty in obtaining legal representation.” Finally, the court asserted that enforcement of the class waiver provision would grant E&Y effective immunity from labor laws. Therefore, the court denied defendant’s motion to dismiss and compel arbitration and permitted plaintiff’s class action to proceed.

This entry was written by Sarah Green.

Photo credit: Cristian Baitg

In Spoerle, the employees were required to wear safety gear, such as steel-toed boots and hard hats, as well as a smock and hair nets. Each worker spent a few minutes at the beginning and end of the day donning and doffing these items. The employer and the employees’ union had agreed that this time was not compensable. The Court of Appeals rejected the plaintiff’s argument that protective gear was not “clothing” under Section 203(o). The Court of Appeals held, however, that because Wisconsin’s own wage-and-hour legislation lacked any equivalent to Section 203(o), the donning and doffing time counted as work time (and overtime) under state law.

The Court of Appeals relied upon the “saving clause” of the FLSA, which provides that no provision of the Act “shall excuse noncompliance” with any state law that establishes a higher minimum wage or a lower overtime threshold. Nothing in Section 203(o) limited the ability of states to impose broader requirements.

The Court of Appeals also rejected the argument that state law interfered in the parties’ collective bargaining. According to the court, the state statute did not require an interpretation of the collective bargaining agreement. Rather, the statute required that the agreement be ignored to the extent it attempted to avoid the obligations imposed by state wage and hour law. Management and labor acting jointly through a CBA could not override state substantive law.

This entry was written by Andrew Voss.