Applying the Supreme Court’s holding in New Process Steel, L.P. v. NLRB, the court held that the failure to include Hayes in the adoption of the final rule ran afoul of the Board’s quorum requirement. Because the Board lacked a quorum when it attempted to adopt the final rule, the final rule is not effective and representation cases will “continue under the old procedures.”

We will continue to follow this important development as it unfolds.

By way of background, over that past five years, district courts have been sharply divided on the issue of whether an excluded Section 203(o) activity can nonetheless start the clock for purposes of walking and waiting time. Several district courts have ruled that walk time and wait time after a Section 203(o) activity is compensable if not subject to some other defense such as de minimis or good faith. See, e.g., McDonald v. Kellogg Co., 2010 WL 3724649 (D. Kan. Sept. 16, 2010), vacated in part, McDonald v. Kellogg Co., 2010 WL 4386899 (D. Kan. Oct. 29, 2010); In re Tyson Foods, Inc., 694 F. Supp. 2d 1358, 1369-70 (M.D. Ga. 2010); Arnold v. Schreiber Foods, Inc., 690 F. Supp. 2d 672, 683-85 (M.D. Tenn. 2010); Andrako v. United States Steel Corp., 632 F. Supp. 2d 398, 413 (W.D. Pa. 2009); Gatewood v. Koch Foods of Mississippi, LLC, 569 F. Supp. 2d 687, 702 & n.31 (S.D. Miss. 2008).Sisk v. Sara Lee, 590 F. Supp. 2d 1001 (W.D. Tenn. 2008). Several other district courts have ruled to the contrary, i.e., walk and wait time after a Section 203(o) activity is not compensable. See, e.g., Hudson v. Butterball, 2009 WL 3486780 (W.D. Mo. Oct. 14, 2009); Collins v. Sanderson Farms, Inc., 568 F. Supp. 2d 714, 724 (E.D. La. 2008); Sisk v. Sara Lee, 590 F. Supp. 2d 1001 (W.D. Tenn. 2008). The U.S. Department of Labor has similarly vacillated on the issue. The DOL first opined that clothes-changing time excluded under Section 203(o) could not be a “principal activity.” See U.S. Dep’t of Labor, Opinion Letter, 2007 WL 2066454 (May 14, 2007); U.S. Dep’t of Labor, Opinion Letter, 2002 WL 33941766 (June 6, 2002). Then, in June 2010, the Department of Labor changed course, asserting that non-compensable clothes-changing time could nevertheless be a principal activity that starts the continuous workday. See U.S. Dep’t of Labor, Administrator’s Interpretation No. 2010-2, 2010 WL 2468195 (June 16, 2010).

Before the Seventh Circuit, the only circuit court to address the issue was the Sixth Circuit in Franklin v. Kellogg Co., 619 F.3d 604 (6th Cir. 2010). Although the Sixth Circuit did not follow the DOL’s recently pronounced Administrator’s Interpretation on the issue, it reached the same result: clothes-changing activities that were non-compensable by virtue of Section 203(o) could still be “principal activities” that start the continuous workday under the Portal-to-Portal Act and, consequently, any post-donning and pre-doffing walk and/or wait time could similarly be compensable. In Sandifer, the Seventh Circuit labeled the Sixth Circuit’s ruling in Franklin “clearly wrong,” stating that the “Franklin opinion offers only a conclusion, not reasons.” To justify the ruling, Judge Posner, writing for the Court, went to great lengths to explain how the Seventh Circuit’s ruling actually benefits employees and a contrary result hurts employees. He explained in detail how finding walk-time compensable would not benefit employees in the long run, as it would increase labor costs, ultimately resulting in lower wages for employees. Judge Posner further cited the history of the FLSA and the subsequent enactment of the Portal-to-Portal Act as support, concluding that one of Congress’ central purposes in enacting the Portal-to-Portal Act was to leave the determination of what is “work” in borderline cases to labor-management negotiations, and if Section 203(o) applies, labor and management have agreed that clothes-changing activities are not work and do not start the work day.

In the end, this an important opinion for all employers with unionized work forces who have uniform, dress or other similar requirements. Although employers with facilities in the Sixth Circuit are still subject to the contrary ruling, the Sandifer ruling assures labor and management alike that the issue if far from finally resolved, so employers may want to stop and think before abandoning or altering uniform requirements or moving time clocks. A strong probability of Supreme Court review is on the horizon.

Workplace bullying is often exhibited in the form of verbal abuse and offensive conduct or behavior, which can be threatening, humiliating or intimidating. In some instances, bullying conduct can prevent work from being performed. Indeed, besides being harmful the physical, emotional and mental health of the targeted employees, bullying damages the business by leading to decreased productivity and increased absences and attrition.

As with many workplace situations, the best way to prevent or address bullying in the workplace is to have effective policies in place and to enforce them. By all accounts, workplace bullying is underreported. An effective policy should at a minimum provide clear examples of unacceptable behavior and working conditions, state in clear terms that the organization is committed to the prevention of workplace bullying, state the consequences of acting in a bullying manner, and encourage reporting of all incidents of bullying or other forms of workplace violence. Organizations should also make available Employee Assistance Programs (EAP) to allow employees who have been bullied at work to seek help.

The court rejected the employee’s claim with respect to time he took off to care for his sick wife. Although his wife indisputably suffered from several serious health conditions, the record showed that she largely was capable of caring for herself (e.g., she could bathe, eat, drink and dress herself on her own; she could drive to her own doctors’ appointments unassisted), and did not request or desire assistance from her husband. The court concluded that plaintiff’s wife “frequently got by without any care” provided by the plaintiff, and any such care could be given after work hours.

The court also rejected the employee’s claims with respect to some time that he took off of work to address his own medical issues. The employee attempted to assert that regular sick days that he took during his employment should have been counted as protected FMLA leave. The court largely disagreed, noting that “an employee’s bare assertion that he is ‘sick’” generally is insufficient to put an employer on notice that an employee may be entitled to FMLA benefits. The FMLA does not require employers to “play Sherlock Holmes, scanning an employee’s work history for clues as to the undisclosed, true reason for an employee’s absence.”

However, on one occasion, the employee provided sufficient details of his illness such that the employer should have been on notice of a potential FMLA qualifying event. This “heightened notice” included informing the employer that he visited the emergency room and needed an out-patient surgical procedure. The court held that a reasonable jury could find that sick days associated with this episode may qualify as protected FMLA leave. Similarly, there was sufficient evidence that the employer grouped all of the employee’s sick leave together when it evaluated his poor attendance record, including those sick days that should have been counted under the FMLA. Consequently, plaintiff was prejudiced by taking FMLA protected leave because the employer included that time in deciding that he should be terminated.

The Hoopingarner case serves as an important reminder that, in many instances, employers must exclude protected leave taken by an employee when it assesses that employee’s job performance and/or evaluates his or her attendance record. In addition, this case reiterates the importance of the regulations that discuss employee notice requirements. See 29 C.F.R. §§ 825.302 & 825.303. While employees must “provide sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request,” the employee may not be obligated to “expressly assert rights under the FMLA or even mention the FMLA.” The onus remains on the employer to properly assess the information provided by the employee and make a determination on whether the employee may be entitled to FMLA leave.

In Patino v. Birken Manufacturing Company, a former employee of the jet engine component maker Birken Manufacturing, Co. accused the company of failing to take reasonable steps to prevent his coworkers from harassing him based on his sexual orientation over a period of many years.  The state’s highest court rejected the employer’s argument that hostile work environment claims are limited to sexual harassment cases.  Importantly, the decision appears to be the first supreme court decision from any state to expressly hold that harassment based on sexual orientation is actionable to the same extent as sexual harassment or racial harassment.  The court also rejected the company’s claim that the jury’s award of $94,500 in damages was too high.

Employers in all states should take notice of this significant decision.  Connecticut is one of 20 states, along with the District of Columbia, whose anti-discrimination laws cover sexual orientation.

See our GT Alert — Arrest and Conviction Records in Employment Decisions: EEOC Issues Enforcement Guidance and Best Practices – for more information.

The Court quickly disposed of the argument that Section 1194’s prevailing plaintiff fee shifting provision applies to Section 226.7 claims because Section 1194 pertains to payment of minimum wages and overtime, an issue not implicated in meal and rest break cases. The Court then considered the applicability of Section 218.5’s prevailing party fee-shifting provision. The Court focused on the requirement of Section 218.5 that, in order to be within its reach, the claims must be one for “the nonpayment of wages.” The Court held, however, that the crux of a meal/rest period claim is not for “nonpayment of wages,” but is for “the non-provision of meal or rest periods.” The Court found that the wage payment due upon a finding of liability is the remedy, but not the basis for liability. As such, the Court concluded, Section 218.5 was not intended to apply to meal and rest break claims, and that such claims, when pursued pursuant to Section 226.7, must “be governed by the default American rule that each side must cover its own attorney’s fees.”

Also significant is what the Court did not decide. First, the Court did not hold that no claim based on meal and rest period violations can be subject to a fee shifting provision. For example, the California Private Attorneys General Act (“PAGA”) may apply to meal and rest period violations, and contains a one way a fee shifting provision, found at Labor Code section 2699(g)(1). Accordingly, though the Kirby decision may diminish incentives to the plaintiffs’ bar to file meal and rest period class actions, fee-shifting incentives still remain if pled under PAGA. Plaintiffs’ attorneys no doubt will argue that the legal effort employed by them to pursue a PAGA meal and rest periods claim overlaps with the legal effort employed by them to pursue a meal and rest period claim under Section 226.7. As such, they will argue, they are entitled to full recovery of fees for the time they employ on meal and rest period claims, if they prevail on PAGA claims premised on that theory. Of course, the limitations period on PAGA claims is significantly less than the limitations period on wage claims.

Second, the Court did not decide the meaning of the phrase “action” as found in Section 128.5. That Section provides, in part: “This section does not apply to any action for which attorney’s fees are recoverable under Section 1194.” The Plaintiff argued that the term “action” as used in Section 128.5 meant that the one-way fee shifting provisions of that statute will not apply in any action in which a claim embraced by Section 1194 is pled, even if individual claims in that lawsuit would otherwise be governed by the two way fee shifting provisions of Section 128.5. In the final sentence of its decision, the Supreme Court expressly declined to reach that issue, stating: “we do not address plaintiffs’ argument that, when a suit includes claims covered by section 1194, the entire suit is shielded from attorney’s fees under section 218.5.” Should the plaintiffs’ bar make a concerted effort to capitalize on this ambiguity to try to avoid valid fee shifting provisions in favor of employers, the California Supreme Court may be asked again, and soon, to resolve this issue.

The employees at issue in this case worked at a retail store in the tourist area of Haight-Ashbury in San Francisco. The store closed later than other stores in the area, and employees allegedly felt unsafe closing the shop and leaving when the area was deserted. The manager said she would discuss the store’s closing time with the owner, but the closing time did not change. The same employees then brought their concerns directly to the owner. The owner agreed that the store could close earlier, and informed the manager. The manager was upset that the employees had gone directly to the owner, and several verbal altercations and arguments ensued between the manager and the employees. In response to these altercations, the employees posted comments from their home computers on Facebook about the incidents. The posts included comments like “tomorrow I’m bringing a California Worker’s Rights book to work … BOY will you be surprised by all the crap that’s going on that’s in violation 8) [sic] see you tomorrow.” Another employee, who was friends with the employees on Facebook, forwarded screen shots of their posts to Bettie Page’s owner. After seeing the posts, Bettie Page fired the three employees. One of the employees filed an unfair labor practice charge with the NLRB, which issued a complaint alleging that the employees were unlawfully discharged for engaged in protected activity. The complaint also alleged that the employer maintained an overly-board and unlawful confidentiality rule.

The ALJ concluded that the employees’ posts on Facebook were a continuation of their concerted efforts to change the store’s closing time. The ALJ rejected the employer’s argument that it terminated the employees for other misconduct and found that they were terminated for engaging in protected activity in violation of the Act. Finally, the ALJ concluded that the employer’s policy restricting employees’ rights to discuss their compensation with third parties violated the Act. This result is in keeping with a long line of NLRB decisions holding that employees have a right to discuss their wages with other employees and third parties under Section 7 of the Act.

As we’ve reported on in the past, there have been several other ALJ decisions involving employee-use of social media. Several social media cases are currently pending before the NLRB, but it has yet to issue a decision in any of them. We will continue to monitor this case and the others as they work their way to the Board and report on developments as they occur.

Yesterday, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued ”Updated Enforcement Guidance,” reminding employers that screen applicants’ criminal backgrounds that they must prove that any use of information acquired through such screens is job-related to avoid potential discrimination suits. 

The Enforcement Guidance states that an employer accused of violating Title VII will have to carry the burden of proving it followed the standards and did not discriminate against minorities or employees with criminal records who could adequately perform the necessary job tasks. 

The EEOC maintains that the updated guidelines do not reflect a change in the Commission’s policies, but rather that additional legal analysis and factual background was needed to support the Commission’s stance, particularly after the Third Circuit Court of Appeal’s ruling in 2007 in El v. Southeastern Pennsylvania Transportation Authority, which called for the Commission to provide more legal analysis and updated research on the issue.

Commenting on the new Guidance, EEOC Chairwoman Jacqueline A. Berrien stated that it “clarifies and updates the EEOC’s longstanding policy concerning the use of arrest and conviction records in employment, which will assist job seekers, employees, employers, and many other agency stakeholders.”

Commissioner Constance S. Barker, however, who cast the lone dissenting vote against issuing the Guidance, voiced concern that the Guidance goes beyond the jurisdiction of the EEOC, will negatively affect business owners, and did not receive sufficient public comment.

Notably, Section VIII of the Guidance offers examples of best practices for employers considering criminal record information when making employment decisions.  Employers who screen applicants’ criminal backgrounds should take note of the new Guidance and consider some of the best practices suggested therein.