Articles Posted in Work off the Clock

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For the past few years, many of the large employers across the country have had to face the possibility of redefining what they consider to be “work.” The federal Fair Labor Standards Act (FLSA) does not provide a definition of “work,” although the U.S. Department of Labor (DOL) does define a “workday” as beginning with the first “principal activity” the employee performs and ending with the last “principal activity” they perform. But what can and cannot be considered a “principal activity” has long been debated between employers and their workers.

In general, anything that is required by the employer and provides a direct benefit to the employer qualifies as a “principal activity,” but the courts continue to go back and forth about the kinds of activities that meet this requirement. For example, many employees argue that the time they spend putting on protective gear when they’re required to wear it while performing their jobs constitutes a principal activity, and as such, they should be paid for that time. Not every employer agrees with that assertion and the DOL itself has gone back and forth on whether employees should be paid for that time. Continue reading

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Most of us don’t think of the time we spend traveling to and from work as time we should be paid for, but there are certain instances in which employers are required to pay their workers for this time. Any job that requires traveling between jobs, especially if it constitutes a significant part of the employee’s workday, is eligible for compensated travel time.

According to a recent class action wage and hour lawsuit against Intec Communications, the company allegedly failed to compensate its employees for the time they spent traveling between worksites. Continue reading

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The U.S. federal government came up with the Fair Labor Standards Act (FLSA), which ensures all employees working in the United States are entitled to be paid for all the time they spend working. This means hourly employees are paid for all time spent working for their employer and are paid one and a half times their normal hourly rate for all time spent working after eight hours a day or forty hours a week.

In addition to the FLSA, each state has their own labor laws to govern the employees working within the state. The have their own limits on everything from minimum wage to mandated breaks.

Employers in California have recently been dealing with a rash of lawsuits concerning employees forced to stay on their employer’s premises after they have clocked out for the day. Whether this is due to bag checks or managers locking them in, it constitutes significant unpaid time for the employees. Continue reading

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The federal Fair Labor Standards Act (FLSA) is a law that was put in place to protect all employees working within the United States. Among other things, the FLSA regulates the national minimum wage and overtime. In addition to this federal law, many states have their own laws to govern employers and make sure they are not taking advantage of their workers. Any employer conducting business within the United States must make sure that they are acting in accordance with both the FLSA and all relevant state laws.

According to a recent class action lawsuit filed by Mayra Casas, a former sales clerk for Victoria’s Secret, the popular lingerie company allegedly violated both the FLSA and California Labor Laws by mistreating its employees. Casas alleges that Victoria’s Secret scheduled employees to work, then revoked or cancelled that shift without informing the employee. In these instances, the employees allegedly arrived at work before discovering that their “call-in” shift had been cancelled. This allegedly cost the employees time and transportation costs which they would not have lost, had Victoria’s Secret  allegedly properly notified them ahead of time that their shift was cancelled.

The lawsuit also alleges that Victoria’s Secret failed to pay employees for time that they spent working, for time lost to “call-in” shifts, and committed unfair business practices by locking employees in the stores against their will. Far from a one-time fluke, the complaint alleges that “employees who work a closing shift routinely find themselves locked in the store at the end of the daily operational hours and must await a manager to permit them to leave the store. Because this occurs after the employees have clocked out for the day, they are not compensated for the time spent under the employer’s control[.]” Continue reading

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When the Great Recession hit the economy hard, it became common to hear of full time workers being made to work more than 40 hours a week without the proper overtime compensation. Now that the economy has begun to recover, the courts have seen a dramatic increase in wage and hour lawsuits from employees who are no longer afraid to speak out against their employers. In addition to full time workers, though, part time workers have also been made to feel the strain of the tough economy. Recently, Greg and Cathy Villalobos filed a class action wage and hour lawsuit against the campground they had agreed to work for part time.

The couple had retired and were looking for some part time work to supplement their Social Security checks. They were initially hired by California Land Management in Palo Alto, California, a company that manages federal parks. According to Greg, “We were only hired to take care of the campground – check the campers in, collect their money and clean up after they leave.” They were also given a campsite to live at so they could take care of the campground.

The couple alleges that California Land Management had promised them that they only had to work 30 hours per week at the most. Everything went fine for about a week, but then the couple were allegedly made to work more than 40 hours a week. If they clocked more than 40 hours a week, the manager allegedly refused to accept their time cards.

The federal Fair Labor Standards Act (FLSA) requires employers to maintain accurate records of all time worked by employees. If plaintiffs in a wage and hour lawsuit can prove that the defendant failed to do so, they can use that as evidence that the wage and hour violations were conducted willfully and intentionally. The result can mean hefty fines for the defendant and a potentially much larger award for the plaintiffs, if the court rules in favor of the plaintiffs. Continue reading

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The federal Fair Labor Standards Act (FLSA) requires that employers pay workers for all of the time that the employee spends performing work for the employer. For any work conducted after eight hours in a single day or forty hours in a week, the FLSA requires employers to pay the proper overtime of one and one-half times the employees’ regular rate of pay.

However, the FLSA does not define work and many employees have claimed that they should be paid for the time it takes them to put on and take off protective clothing when such clothing is required by the employer.

In one recent lawsuit, employees at a chicken processing plant claim that they should be paid for the time spent changing into and out of their protective gear at the beginning and end of their lunch break. The employees are provided with a 30-minute meal break, in which they must first take off their protective clothing and wash their hands, and then put their protective clothing back on before returning to work at the end of their unpaid 30-minute break.

The plaintiffs do not argue that the meal break should be compensated. Rather, they argue that the time spent changing into and out of their protective gear should be compensated. They filed a claim for overtime under the FLSA and another claim for overtime under Illinois Wage Law. Since the latter is more generous, a court might find that a violation of Illinois Wage Law did occur, even if it finds that there was no violation of the federal law.

The federal judge ruled in favor of the employer on all counts. The employees appealed the decision and the case went to the Seventh Circuit Court of Appeals.
The FLSA does not require employers to pay employees for time spent taking meal breaks. As far as time spend changing clothes, the Act states that “any time spent in changing clothes at the beginning or end of each workday which was excluded from measured working time … by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.”

The employees involved in the current lawsuit are part of a union, which has a collective-bargaining agreement with the employer, which states that time spent changing into and out of the protective gear is not compensable time. The plaintiffs argue, though, that the requirement to change into and out of their protective gear during their lunch break violates the FLSA because the federal statute only covers changing time at the beginning and end of a workday.

The employees said that it takes 10-15 minutes to change into and out of the protective gear, while the employer argued that it only took 2-3 minutes.

The judges were left without a way of determining which side was correct, or if the truth lay somewhere in the middle. They considered videotaping employees in the process of putting on and taking of the protective gear, but decided that they would have cause to dawdle in doing so. The company, on the other hand, could find some speed demons who change more quickly than normal. To settle the matter, the judges procured items similar to those described in the lawsuit as protective gear required by the employer. They were videotaped putting on and taking off the protective clothing and found that it took only 15 seconds to take off and 95 seconds to put on. While such a test could not be submitted as evidence in the current lawsuit, it gave the judges an idea of the time employees spend changing into and out of their protective gear.

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(ABC News) — A Wisconsin judge has ordered Hormel to pay $195,087 to 330 employees at its Beloit plant.

The class action lawsuit was filed by workers for unpaid time spent changing into and out of uniforms, washing their hands and walking to and from work stations.

The mandatory uniforms are provided by Hormel and not allowed to leave the premises of the plant. Workers also say they were forced to use unpaid meal breaks to change into and out of the uniforms, not leaving them time to be allowed to leave the facility as required by state law.

Attorneys for the workers union has until January 21, 2014 to file a plan to distribute funds.

You can view the new story on this case here.

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While it is the duty of the courts to uphold the law as it is written, courts will sometimes consider the opinions of other entities when making their decisions. For example, the U.S. Department of Labor (DOL) is frequently consulted on matters of employment law. However, courts may find it difficult to rule in accordance with the DOL’s opinions when those opinions keep changing.

One such issue, which has been much debated between employers and employees, is whether or not the time spent changing into and out of work clothes should be considered a necessary part of the employee’s job and therefore subject to compensation. The FLSA states that “changing clothes … at the beginning or end of each workday” is excluded from compensable time. However, the Act does not define “clothes”, leaving the question for many employees of whether or not safety gear can be considered “clothes”.

In 2010, the DOL issued a statement saying that protective gear is not considered clothing and that changing clothes can be considered a “principal activity” – even if it is not compensable by itself, that would make the following activities compensable, such as walking from the locker room to the work site. However, that is just the most recent decision by the DOL. Over the course of the past fifteen years, the DOL has changed its position on this issue three times, leaving courts doubtful as to the relevance of consulting the DOL’s opinion.

One such case is a class action of 800 current and former employees of U.S. Steel in their location in Gary, Indiana. The district judge ruled that the clothes changing time was not compensable but that the time spent traveling to and from the work site might be compensable and, on those grounds, refused to dismiss the case. The lawsuit then moved to the U.S. 7th Circuit Court of Appeals.

The FLSA states that “any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time … by the express terms of or by the custom or practice under a bona fide collective bargaining agreement applicable to the particular employee.” In this case, the employees were subject to a collective bargaining agreement made on their behalf by their union, which argued for higher hourly wages for the employees in exchange for not paying the employees for the time spent changing into and out of their protective gear or the time spent traveling between the room where they change into their protective gear and the worksite.

However, the lawsuit alleges that the protective gear in this case does not qualify as “clothes” which is not defined by the Act. The clothes at issue here include flame-retardant pants and jacket, work gloves, metatarsal boots (work boots containing steel or other strong material to protect the toes and instep), a hard hat, safety glasses, ear plugs, and a “snood” (a hood that covers the top of the head, the chin, and the neck). The glasses and ear plugs are not considered clothes but the hard had might be. Even so, glasses and ear plugs would only take a matter of seconds to put on and take off, which is too small an amount of time to be covered under the Act.

The Court points out that the protective gear sure seems like clothes, but the plaintiffs insist that it is not. The Court then goes on to state that it is both. “Protection – against sun, cold, wind, blisters, stains, insect bites, and being spotted by animals that one is hunting – is a common function of clothing,” thereby eliminating any debate about the difference between clothes and protective gear.

The Court agreed with the district judge that the time spent changing clothes was not compensable. However, due to that ruling, the district judge’s ruling that time spent traveling to and from work was compensable was incorrect. The Court points out that the Portal-to-Portal Act exempts from the minimum wage and overtime provisions of the FLSA “walking, riding or traveling to and from the actual place of performance of the principal activities which such employee is employed to perform.” Had the district court ruled that the time spent changing clothes was a principal activity, then the travel time might have been considered compensable. As it is, the Court found that the exemption applies.

The FLSA states “that clothes changing and washing, which are otherwise a part of the principal activity, may be expressly excluded from coverage by an agreement.”

The 7th Circuit Court of Appeals therefore found that the lawsuit had no merit and should be dismissed. The plaintiffs appealed and the case will now be heard by the U.S. Supreme Court. The decision they reach will affect all employers who refer to that section of the FLSA to determine how to pay their employees.

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Some jobs involve more inherent risk than others. Due to the nature of certain jobs, employees sometimes have to deal with hazardous materials or work with heavy machinery. In those cases, employers often require these workers to wear protective gear while on the job. The question of whether the time employees spend changing into and out of that protective gear should be paid for by the employer is a question which has been much debated throughout the country.

Recently, four employees have filed a class action wage and hour lawsuit against their employer, Thyssenkrupp Waupaca, Inc., for allegedly violating the federal Fair Labor Standards Act (FLSA). Waupaca is an iron castings manufacturer and it provides certain employees with personal protective equipment (“PPE”) and requires the employees to wear this equipment while working. The PPE includes hard hats, safety glasses, ear protection, steel-toed footwear, and 100% cotton clothing or flame retardant clothing. According to the lawsuit, failure to wear any or all of these items while at work could result in disciplinary action.

Waupaca also provides employees with locker rooms which include showers. Because some of the employees deal with hazardous chemicals as part of their work, Waupaca encourages them to shower and change out of their PPE before leaving work. Not all employees choose to do so. Some leave in their work clothes and change at home. All employees are required to clock out before changing out of their PPE.

The lawsuit alleges that the time workers spend changing into and out of their PPE should be compensated by the employer. Waupaca moved for summary judgment against the class action lawsuit and the district court ruled in the company’s favor. The plaintiffs appealed and the 7th Circuit Court of Appeals reversed the lower court’s ruling.
The FLSA was enacted by Congress to ensure that employees were provided with “[a] fair day’s pay for a fair day’s work.” The FLSA has two core provisions: the minimum wage provision and the overtime provision. The minimum wage provision ensures that all employees are paid no less than a certain hourly rate for the work that they perform. The overtime provision entitles employees to one and one-half times their normal rate of pay for each hour that they work in excess of eight hours a day or forty hours a week. The FLSA defines “employ” as “to suffer or permit to work”. However, it does not define “work”, leaving courts to determine which activities are compensable and which are not.

The Department of Labor defines compensable activities as those which are required by law, by the employer, or by “the nature of the work”. The case of Waupaca employees clearly does not meet the first two requirements. As to the third requirement, the district court ruled that “whether the ‘nature of the work’ required such on-site activities was not a question that either a court or a jury is well-equipped to answer”. The district court acknowledged that the “discovery related to the health impacts of hazardous materials exposure and the difficulty of attributing any negative health impacts to the employees’ failure to shower and change clothes at work” would be too burdensome for a court to handle.

The appellate court agreed that such discovery would not be easy, but rejected the conclusion that the level of difficulty of the discovery was a sufficient basis for dismissing the case. The 7th Circuit Court of Appeals therefore reversed the lower court’s ruling and remanded the case for further proceedings.

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A waiter working for a chain restaurant owned by a larger, parent company, if he has a grievance against his employer, may have the option of suing the larger company. Such is the case with a class action lawsuit that began with only two plaintiffs and has already grown to 50 plaintiffs. The lawsuit, filed in federal court in Miami, isn’t done yet though. Other waiters and waitresses across the country who work for, or have worked for, the company are being sought out to join the class action lawsuit.

The company being sued is Darden and it owns many popular restaurant chains which stretch across the country, including Olive Garden, Red Lobster, Longhorn Steakhouse, Capital Grille, and Bahamas Breeze. There are a total of more than 2,000 restaurants in the United States, including 185,000 employees, which are currently being managed by Darden.

The lawsuit alleges that Darden has failed to pay its workers the required minimum wage and forced them to continue working off the clock after their shifts have ended. This has allegedly resulted in overtime hours for which the employees were never paid straight pay, much less the proper overtime compensation as mandated by federal law. More specifically, the lawsuit alleges that Darden violated the federal Fair Labor Standards Act by forcing its employees to work in excess of forty hours per week without the proper overtime compensation.

The accusations date back to 2009 although, because three years is the statute of limitations for this kind of complaint, it is likely that Darden has been utilizing these illegal employment practices for much longer than that. One plaintiff has already been disqualified from participating in the class action because he worked for Darden more than three years before the lawsuit was filed.

If the number of participants in the class continues to grow as it has, the amount of money that Darden may be held liable for could reach the tens of millions of dollars. If the class is certified, such a formidable amount will certainly put pressure on the company to settle the case before it reaches the courts.

In addition to the pending lawsuit from its employees, Darden is also facing legal action from the other end of its business. Patrons have filed a lawsuit against the giant restaurant company alleging deceptive business practices. Like many restaurants, Darden adds an automatic gratuity to its bills for larger parties (in New York City, for example, a party of eight or larger would automatically have the gratuity added to their bill). However, the lawsuit alleges that, despite the automatic gratuity, their bills still came with an added space for patrons to put the tip they wish to pay. This suggests that the automatic gratuity is not going to the restaurant’s wait staff, as expected. Rather, it implies that the restaurant is receiving the gratuity in addition to the tab for food and drinks. Such a practice is deceitful to customers as well as being harmful to both customers and employees.

Although the company has remained rather quiet on the issue, one representative has called the allegations “baseless”.

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