Sitting down to dinner but still have a long to-do list from the office? Hear your work e-mails pinging as you watch the game? Not a problem that you can’t handle with your smartphone or tablet. Whatever your take on this 24/7 connectivity, it is undeniable that the proliferation of mobile devices has made working away from the office easier and perhaps expected by employers (and clients). While such a policy may result in an increase in productivity, it can also create a legal risk for employers, namely, unexpected claims for overtime pay.
Articles Discussing Hours Worked Under The FLSA.
Divided Seventh Circuit Panel Reverses Summary Judgment in Showering and Clothes Changing FLSA Case
On October 31, 2013, a Seventh Circuit panel decided, by a two to one vote, to reverse a district court’s decision granting summary judgment to the employer in a Fair Labor Standards Act (FLSA) collective action involving over 400 employees seeking overtime compensation for time spent at the work site showering and changing clothes.
It’s Past Time To Dispel The “Half-Time” Fog
A decision by the Fifth Circuit U.S. Court of Appeals (with jurisdiction over Louisiana, Mississippi, and Texas) illustrates and exacerbates the utter and unwarranted morass into which the calculation of overtime pay has descended in so-called “failed exemption” cases under the federal Fair Labor Standards Act. The proper application of the law is ill-served by perpetuating or acquiescing in the topic’s equivalent of urban myths.
Supreme Court Hears Oral Argument and Appears to Seek Middle Ground on Definition of “Clothes” Under the FLSA
On Monday, November 4, the Supreme Court heard oral arguments in Sandifer v. United States Steel Corp. on the issue of the meaning of the term “clothes” in section 3(o) of the Fair Labor Standards Act (FLSA). Under the FLSA, generally, employees must be paid for donning and doffing protective clothing if they are required by law or the employer to change into such clothing at the work site. However, section 3(o) of the FLSA, passed by Congress in 1949, provides that in a unionized setting time spent “changing clothes” may be excluded from compensable time by a collective bargaining agreement or by a custom or practice of non-compensation for such activities. The outcome of the case will have a significant impact on unionized employers in a wide variety of industries where workers change in and out of protective and/or sanitary clothing at the start and end of their workdays, including food processing, light and heavy industrial manufacturing, chemical processing, energy production, and health care.
Supreme Court to Define the Word “Clothes” and Settle DOL Flip-Flopping
On Monday, November 4, the Supreme Court will hear oral arguments in Sandifer v. United States Steel Corp. on the issue of the meaning of the term “clothes” in Section 3(o) of the Fair Labor Standards Act. The Court’s decision will have a substantial impact on unionized employers in a wide variety of industries where workers change in and out of protective clothing at the start and end of their workday, including food processing, light and heavy industrial manufacturing, chemical processing, energy production, and health care.
Supreme Court Denies Review of Decision Holding Plaintiff Responsible for Recording Time Worked
The U.S. Supreme Court has declined to review the Sixth Circuit Court of Appeals’ decision in White v. Baptist Memorial Health Care Corporation,* upholding summary judgment and dismissal of an emergency room nurse’s Fair Labor Standards Act (FLSA) claim because she failed to follow procedures for reporting time spent working during automatically deducted unpaid meal breaks. Some commentators have seen this decision as partially recognizing a Faragher/Ellerth type affirmative defense in FLSA actions when employers have reasonable procedures for reporting time worked. That view may be a bit oversimplified, but the underlying decision does highlight how an employer may avoid potential FLSA liability by taking proactive steps to ensure that employees are appropriately paid for all time worked.
Eighth Circuit: Donning and Doffing Not a “Principal Activity” that Triggers Compensation
On August 30, 2013, in Adair v. ConAgra Foods, Inc., the U.S. Court of Appeals for the Eighth Circuit ruled that time spent by unionized employees walking to and from time clocks after donning and doffing protective clothing was not a “principal activity” for which compensation was required under the Fair Labor Standards Act (FLSA). The Eighth Circuit’s ruling adds to an existing circuit split on whether time spent changing clothes, which is otherwise excluded from compensation under section 203(o) of the FLSA, is still a “principal activity” that starts the continuous workday and triggers compensation requirements. Section 203(o) excludes from compensation time spent changing clothes provided that time has been excluded from compensation “by the express terms of or by custom or practice under a bona fide collective-bargaining agreement.”