Supreme Court Puts To Rest The Meaning Of “Changing Clothes”

February 6, 2014

In Sandifer v. U.S. Steel Corp., the Supreme Court held that time spent donning and doffing workplace gear by a class of U.S. Steel unionized employees was not compensable under the terms of the parties’ collective bargaining agreement. Sandifer and others filed a collective action under the Fair Labor Standards Act (“FLSA”), seeking backpay for time spent donning and doffing required protective gear.  U.S. Steel argued that this activity, which would otherwise be compensable under the FLSA, was non-compensable pursuant to a collective bargaining provision that time spent changing in and out of “clothes” was non-compensable. The Court held that “clothes” denotes “items that are both designed and used to cover the body and are commonly regarded as articles of dress.”  Further, time spent “changing clothes” includes time spent altering dress.  The Court ruled that gear, including a flame-retardant jacket, pants, and gloves constituted clothes as they are designed and used to cover the body, while glasses, earplugs, and respirators failed to qualify.  When changing clothes and non-clothes are involved, the Court directed that the inquiry should be whether, “on the whole,” the activity is fairly characterized as time spent “changing clothes.”  If so, then the entire period is governed by the collective bargaining arrangement. Sandifer is a substantial victory for unionized employers who have either expressly negotiated for or established a practice of not compensating for donning and doffing time.  For those employers not impacted by the decision, the traditional FLSA rule applies – donning and doffing is compensable if it is “integral and indispensable” to a principal work activity. Read More

Employers Beware: Even A Voluntary Job Transfer Can Be Considered An Adverse Action

January 29, 2014

Proving the adage “no good deed goes unpunished,” the Sixth Circuit recently held that a voluntary transfer can be an adverse employment action. In Deleon v. Kalamazoo County Road Commission, et al., No. 12-2377 (6th Cir. Jan. 14, 2014), a superintendent of road maintenance with twenty-eight years of experience, applied for a vacant office position.  Although not initially selected for the position, the Commission laterally transferred the Plaintiff into the job the next time that it became available. After the transfer, Plaintiff took medical leave claiming that the diesel fumes from an adjacent garage made him ill.  The Commission eventually terminated his employment after he exhausted all his available leave.  Plaintiff brought suit for national origin and age discrimination – citing a pervasive atmosphere of racial insensitivity and derogatory comments.  The district court found in favor of the Commission as Plaintiff had failed to show that the transfer was an adverse employment action. The Sixth Circuit Court of Appeals, however, reversed.  It held that the transfer of an employee can constitute an adverse employment action, even when it does not involve a demotion or reduction in pay, and regardless of whether the employee had requested the transfer, if the work environment was “objectively intolerable.”  The Court found the transfer was involuntary even though Plaintiff had previously applied for it. This decision underscores that employers are not insulated from litigation risks simply because they granted an employee’s request for a transfer.  It is also a stark reminder that some courts may be sympathetic to employees, such as this one, with substantial tenure and may be more likely to allow them their “day-in-court.” Read More

Addicted Employee – Return-To-Work Agreements

November 15, 2013

Substance and alcohol abuse is a serious workforce issue confronting employers.  Ramifications range from absenteeism and reduced productivity to increased health care costs, workplace injuries and accidents.  To combat substance abuse, employers should consider establishing a drug and alcohol-free workplace with a written policy.  Employers also should consider utilizing return-to-work agreements.  Under such agreements, an addicted employee, following the completion of a rehabilitation program, agrees to abstain from alcohol or drugs as a condition of returning to work.  A return-to-work agreement should specify the employer’s expectations of the addicted employee, as well as the consequences if the expectations are not met.  Importantly, courts increasingly are upholding such agreements. In Ostrowski v. Con-way Freight, No. 12-3800, 2013 WL 5814131 (3d Cir. Oct. 30, 2013), the plaintiff, a driver sales representative, requested a leave of absence to attend an alcohol rehabilitation program.  After completing the program, the employer required the plaintiff to enter into a return-to-work agreement as a condition for returning to work.  The agreement prohibited alcohol use, regardless of whether the plaintiff was on or off the clock, and warned the plaintiff that any violation of the agreement could result in termination.  After signing the return-to-work agreement, the plaintiff relapsed and was terminated.  The plaintiff sued, alleging that his termination violated various statues, including the Americans with Disabilities Act (“ADA”). The U.S. Court of Appeals for the Third Circuit held that the employer did not discriminate against the plaintiff on the basis of his disability (alcoholism) when it fired him for violating the return-to-work agreement.  The Third Circuit noted that the Sixth and Eighth Circuit Courts have held that employers do not violate the ADA simply by entering into return-to-work agreements that subject addicted employees to different standards from other employees.  The court further noted that the return-to-work agreement did not preclude alcoholic employees from working for the employer; rather, it prohibited alcoholic employees subject to the agreement from consuming alcohol.  Read More

Pietragallo Gordon Alfano Bosick & Raspanti, LLP named a Tier 1 Metro “Best Law Firm”

November 1, 2013

Pietragallo Gordon Alfano Bosick & Raspanti, LLP was recently named a Tier 1 Metro “Best Law Firm” in six practice areas by U.S. News – Best Lawyers® in 2014 for Pittsburgh and Philadelphia. The six practice areas are listed below: Commercial Litigation Labor & Employment Litigation Personal Injury Litigation – Defendants Workers’ Compensation Law – Employers Criminal Defense White Collar Health Care Law Firms included in the 2014 “Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law prac­tice and breadth of legal expertise. The 2014 rankings are based on the highest number of participating firms and highest number of client ballots on record. To be eligible for a ranking, a firm must have a lawyer listed in The Best Lawyers in America©, which recognizes the top 4 percent of practicing attorneys in the US. Over 12,000 attorneys provided over 330,000 law firm assessments, and almost 7,000 clients provided close to 20,000 evaluations. In addition, to provide personal insight, a new Law Firm Leaders Survey was implemented in the decision-making process. Read More

American Law Institute CLE

October 8, 2013

Daniel J. McGravey  and Sarah R. Lavelle will present, “Managing Employees’ Bad Habits and Crafting Effective Wellness Programs,” at an American Law Institute CLE in Philadelphia, PA on October 8, 2013. Related Information: Program Information Read More

Conducting Background Checks On Contingent Workers

September 20, 2013

Employers have an obligation to exercise due diligence in determining not only who they hire, but also who they allow on their premises to perform work.  This includes not only regular employees, but also independent contractors and other contingent workers, including freelancers, consultants and long-term temps.  Employers have significantly increased their use of contingent workers in recent years, since such workers enable employers to enjoy savings in terms of tax withholding, Medicare and FICA contributions and unemployment and workers’ compensation premiums when the workers are used and classified properly, and since they offer employers the opportunity to utilize uniquely skilled, top talent in their workforce, all while allowing the worker to enjoy flexibility and work-life balance.  Staffing Industry Analysts, a global advisor on contingent work, recently reported that temporary help jobs were up 6.7% from last year.  This number can only be expected to rise in light of advancing technology and the globalization of the marketplace. Use of contingent workers, however, raises the question of whether or not employers are free to conduct background checks on such workers.  Indeed, employers’ use of background checks has also increased in recent years.  The AAIM Employers Association, a St-Louis-based provider of business services to over 1,600 employers, also recently reported that, of the companies it serves, the number conducting background checks more than doubled last year.  That was an overall increase of 166% in the usage of background checks in the past 3 years.  This increase has been attributed to the need to protect employer property and assets, other employees and customers, potential liability for negligent hiring and the overall ease of access to information via the Internet. Federal Law on Background Checks For some industries, federal law requires background checks of both employees and independent contractors. Truck drivers, including independent contractors, must undergo a background check as required by Federal Motor Carrier Safety Act regulations. Read More

U.S. Supreme Court – Same Sex Marriage – Family Medical Leave

September 17, 2013

In light of the U.S. Supreme Court’s decision in United States v. Windsor, which struck down certain provisions of the Defense of Marriage Act (“DOMA”), the U.S. Department of Labor (“DOL”) recently revised its regulations pertaining to the Family and Medical Leave Act (“FMLA”).  Prior to the Windsor decision, in determining FMLA benefits, the DOL relied on Section 3 of DOMA, which limited marriage only to a legal union between one man and one woman and the word “spouse,” which referred only to a person of the opposite sex who is a husband or wife.  Thus, same-sex couples were not entitled to FMLA leave even if they lived in a state that recognized same-sex marriage. In Windsor, the Court held that Section 3 of DOMA was unconstitutional because the regulation of marriage traditionally rests exclusively with the states.  On August 9, 2013, the DOL issued an internal memorandum to DOL staff members advising them that the DOL has revised its guidance documents to remove any reference to DOMA and to clarify that an employee in a same-sex marriage who resides in a state that allows same-sex marriage is entitled to take FMLA leave to care for the employee’s same-sex spouse with a serious health condition. Notably, the law of the state where the employee resides applies, not the law of the state where the employee works.  As of August 9, 2013, the following thirteen states (and the District of Columbia) recognize same-sex marriage:  California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington. Conclusion For many employers, particularly those with employees who live in one or more states, the decision regarding FMLA leave becomes significantly more complicated.  For instance, an employee who resides in Delaware, which recognizes same-sex marriage, will be entitled to FMLA leave to care for a same-sex spouse (with a serious health condition) while an employee who resides in Pennsylvania, which does not recognize same-sex marriage, will not be afforded a similar opportunity.  Read More

New DSM May Impact Disability Claims

August 6, 2013

As most employers know, complying with the Americans with Disabilities Act can be a challenge.  That challenge promises to become more difficult with the release of the latest version of the manual universally recognized to identify and classify mental disorders – the Diagnostic and Statistical Manual of Mental Disorders, known as DSM-5.  Newly identified mental disorders will have major implications in the workplace as employers will have to decide whether and how to accommodate these claims. As an example, the DSM-5 identifies a new condition called Mild Neurocognitive Disorder, characterized by a modest decline in learning or memory.  While there is no absolute duty to accommodate the cognitive effects of aging, an older employee may claim that his forgetfulness or difficulty learning new responsibilities is caused by Mild Neurocognitive Disorder. The DSM-5 also identifies Social Communication Disorder as a condition affecting an employee’s ability to communicate in social settings.  Therefore, an employee whose social awkwardness disrupts their performance may claim a disability based on this condition.  These are only two examples of the new mental disorders expected to amplify an employer’s exposure to disability discrimination claims. Employers, however, must remember that an employee’s inability to perform the essential functions of the job even with a reasonable accommodation is a justifiable reason to end the employment relationship.  Special care must be taken by employers to make sure that job descriptions are comprehensive and accurate.  Indeed, the job description must methodically memorialize the essential functions of the job so it can withstand an employee’s claim that he or she can perform the essential functions of the job.  Now – not later – is the time to review, update and modify job descriptions to prepare for an anticipated increase in disability discrimination claims. Read More

Employers Win: U.S. Supreme Court Decides Two Title Vii Cases In Employers’ Favor

June 25, 2013

Authored by: Matthew R. Wendler Yesterday, the U.S. Supreme Court issued two decisions arising under Title VII of the Civil Rights Act of 1964-defining “supervisors” narrowly and establishing that the lessened causation standard that applies in mixed-motive cases does not apply in cases brought under the anti-retaliation provision. Title VII of the Civil Rights Act of 1964 prohibits status-based employer discrimination (i.e., employer discrimination because of race, color, religion, sex, or national origin), including the creation or perpetuation of a discriminatorily hostile work environment. It also prohibits an employer from retaliating against an employee who opposed, complained of, or sought remedies for unlawful workplace discrimination. Yesterday, the U.S. Supreme Court issued two 5-to-4 decisions that concern such Title VII claims: In Vance v. Ball State University, 2013 WL 3155228 (U.S. June 24, 2013), it defined “supervisor,” providing long-needed guidance as to when an employer may be held vicariously liable in a hostile-work-environment case. And in University of Texas Southwestern Medical Center v. Nassar, 2013 WL 3155234 (U.S. June 24, 2013), it established which causation standard applies in retaliation cases. Vance v. Ball State University It is well established that an employee who has allegedly been subjected to a discriminatorily hostile work environment (e.g., a working environment that is racially or sexually hostile) may seek to hold an employer liable either directly or vicariously. See, e.g., Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. Boca Raton, 524 U.S. 775 (1998). Indeed, the U.S. Supreme Court has made clear that one may hold an employer directly liable if it has acted negligently-i.e., if the employee proves that the employer knew or should have known about the conduct and failed to stop it; and that one may hold an employer vicariously liable in two situations: first, if the employee proves that a “supervisor” harassed him or her, and that the harassment has culminated in a “tangible employment action”; and, second, even when a supervisor’s harassment does not culminate in a tangible employment action, if the employer is unable to prove that (1) it exercised reasonable care to prevent and promptly correct any harassing behavior and that (2) the plaintiff unreasonably failed to take advantage of any preventive or corrective measured that it provided. Read More

Court Ruling Focuses On Unpaid Internship Programs

June 19, 2013

In a recent ruling, the United States District Court for the Southern District of New York has found that an unpaid internship program concerning the production of the film “Black Swan” ran afoul of the Fair Labor Standards Act (“FLSA”).  In Glatt v. Fox Searchlight Pictures Inc., the court found that the defendants improperly classified two workers as unpaid interns instead of paid employees.  In reaching its decision, the court relied on a United States Department of Labor (“DOL”) Fact Sheet addressing whether interns at for-profit businesses fall within the so-called trainee exception to the FLSA.  In this Fact Sheet, the DOL enumerates the following six factors: The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment; The internship experience is for the benefit of the intern; The intern does not displace regular employees, but works under close supervision of existing staff; The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded; The intern is not necessarily entitled to a job at the conclusion of the internship; and The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship. Applying the DOL factors, the court found that the unpaid interns worked as paid employees work; they provided an immediate advantage to their employer; the internship was not designed to be uniquely educational to the interns; and if the unpaid interns did not perform the assigned work, then it would have otherwise been completed by a paid employee.  With respect to the last factor concerning whether the interns understood that they would not be paid, the court dismissed its relevance by noting that the FLSA does not allow employees to waive their entitlement to wages.   Read More