Wage & Hour - Development & Highlights : New Jersey Labor and Employment Lawyer & Attorney : Fox Rothschild LLP Law Firm : Serving Essex County, Sussex County, Roseland, New Jersey

In the November 30, 2010 issue of Employment Law 360, Alfred Robinson posits three continuing trends in FLSA litigation: 1) donning and doffing cases; 2) exemption misclassification cases; and, 3) off-the-clock work cases.  I concur, with the addition of a group of cases that I will call “blackberry cases” or “checking e-mail” cases.

The issue of donning and doffing concerns clothing and protective gear.  It raises the more global issue, however, which is when are preliminary and postliminary activities sufficiently related to and integral to the main job that the time spent doing them becomes (somehow) compensable.
Mr. Robinson identifies three factors that go into the calculus of whether the time is compensable, but two of them—compulsion by the employer and benefit (if any) to the employer are within the employer’s control.  The third is whether the activity is connected. I go a step further—if the activity is somehow mandated by an outside government agency or other governing body, then the activity will likely be deemed compensable.

The next category are misclassification cases.  He points to the fact that the US DOL has stopped issuing Opinion Letters and now will only be issuing so-called Interpretations.  Interestingly, the first of these involved whether Mortgage Loan Officers fit within the administrative exemption.  I predict that more class actions will target classes of employees deemed administrative.  Of the three white collar exemptions, the toughest one to defend is the administrative exemption.

The last category are “off-the-clock” cases, which means employees allegedly working through lunch and not being paid, especially where the employer has an automatic deduction policy. These cases also include instances where employees claim they started/reported early or stayed late and were never paid.  Again, with the use of smart clocks, which may automatically punch people in and out at their assigned shift times, the employer may have a tough time proving that employees did not report early, did not start work early, but were prevented from punching in to reflect that work was performed because the smart clock would not allow it.  These are dangerous cases.

The blackberry and email cases are going to become a real nightmare, I believe.  Everybody does it, even when they are off work at night and on the weekends.  The pressures of business, of employment in these complicated times and the unceasing desire to show our employers that we dedicated and diligent contribute to this perpetual “need” to check e-mail.  If employers do not have policies addressing such usage, i.e. prohibiting it, I believe a rash of class actions involving claims by dozens/hundreds of workers that their checking of e-mail pre/post work is compensable time is headed for the employer world like a rocketing comment.  That is the specter before us and I fear it will raise its head in the coming year(s).
 

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A federal judge has conditionally certified a class action which was instituted by a group of production line workers in a turkey processing plant.  They claim they are owed compensation for donning and duffing activities as well as other activities that they claim were “working time.”  They claim compensation for changing into protective gear (the donning and doffing component) washing their tools and time spent in travel to and waiting at their production lines.  The case is entitled McLaurin v. Prestage Foods Inc and was filed in the District of North Carolina.

The plaintiffs claim that the Company paid them only for time that the production lines were supposed to be operating.  The plaintiffs estimate 300-1000 members in the class and wanted individuals who worked “on or near” the processing line to be part of the class.  The Company is contending that the class definition proposed was too broad because employees working “near” the line were paid differently than those who actually worked on the line.

Naturally, the plaintiffs wanted the broader definition to apply, contending that the true parameters could be worked out “later.”  The defendants also contended that there were factual differences in the kinds of protective gear worn by the workers, which hearkens to the individual scrutiny defense, but the judge rejected this contention.  The court held that if there was a common policy or practice that applied to all of the workers, the fact that there might be individual differences from worker to worker would not detract from the validity of the class.

There will be probably considerably more discover in this matter.  The case will likely be settled sometime in the future, as these working time cases are different than and harder to win than an exemption misclassification issues.  In the exemption case, if the employer has strategized correctly and preemptively and is proved correct on the exemption question, the entire class evaporates in a flash.  With working time cases, where there lies any modicum of employer compulsion or compulsion by an outside government agency that operates through the employer (e.g. FDA, Health Department) then there likely will be recovery by the plaintiffs and attorneys fees for their counsel.
 

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A federal judge has dismissed a possible class/collective action concerning an alleged failure by Butterball, the giant poultry company, to pay workers for donning and doffing time.  I have written many times on this subject, but this case is different because the court found that the employees’ union had agreed to the policy of not compensating workers for this time. The case is entitled Salazar et al. v. Butterball, LLC and was filed in federal court in the U.S. District Court for the District of Colorado.

The workers are unionized and represented by the United Food and Commercial Workers, Local 7. The court ruled that, during negotiations, the union had waived or given away the right to be compensated for this time.  The employees in this lawsuit maintained that, notwithstanding this provision, it was illegal to force the workers to negotiate for something that they were already legally entitled to, i.e. compensation for donning and doffing time.

Significantly, the court noted that the union had filed a grievance over the nonpayment of donning and doffing time, but never channeled the grievance to arbitration.  Thus, the company also had the argument that the Union had abandoned the grievance and had “doubly” waived its right to press for compensation, i.e. through collective bargaining and the dropping of the grievance and failure to pursue it to arbitration.

The Company argued that since payment for donning and duffing time concerned wages, it was a so-called mandatory subject of bargaining; the union had never pursued the matter at the bargaining table and therefore the Company contended that these unionized workers could now not come after it through the back door.

The plaintiffs argued that if the federal judge adopted the magistrate judge’s findings, that would, “contrary to law, create a requirement that a union must use its right under federal law to be paid for all time worked as a bargaining chip in collective bargaining or lose that right.”  The court rejected that argument and did in fact adopt the magistrate’s findings.

The lesson to be learned---if an employer is unionized, it can, through collective bargaining, either “win” a provision that such time is non-compensable, or agree with the union that “some” modicum of such time is also compensable.
 

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I have posted a few times about Fair Labor Standards Act donning and doffing cases. The general rule is that donning and doffing is compensable if these preliminary and postliminary activities are integral to the performance of the employee’s primary job.

For a rule, there is always an exception. In a case entitled Johnson v. Koch Foods Inc., filed in the Eastern District of Tennessee, a federal judge has ruled that because the parties’ labor contract applicable to covering chicken processors working at a cut and kill plant explicitly excluded compensation for time spent donning and doffing certain sanitary and safety gear, the workers were not entitled to compensation for the time it took to put and remove the gear.

The judge analogized the putting on/taking off of the gear to “changing clothes,” which is not compensable under Section 203(o) of the Fair Labor Standards Act. The court did warn, however, that of a jury determined that such activities were integral and indispensable, they then could be compensable under the “continuous workday rule.”

This result seems anomalous because the workers were required to put on the protective gear prior to reporting to the production line, to begin their primary work, but they were only compensated for the time actually on the line.

There is a divergence in the federal Circuits as to what constitutes “clothes.” The Ninth Circuit has held that the “changing clothes” safe harbor applies only when the items at issue are clearly and unmistakably clothing, as is commonly understood. However, the Eleventh Circuit has held that the term applies to hairnets, gloves and hearing protection equipment. The US Department of Labor has issued an Opinion Letter concluding that the Section 203(o) definition of clothes “includes items worn on the body for covering, protection, or sanitation.”

This issue may ultimately have to be decided by the US Supreme Court. In the meantime, employers need to make assessments of the indispensability of the preliminary activity to the main job and start the analysis of compensability from that vantage point.
 

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