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Thirty-three former minor league ball players seek to pull back the curtain on alleged system-wide violations of minimum wage or overtime. Their federal class action suit challenges Commissioner Bud Selig, the Office of the Commissioner, and, in effect, every baseball team in the country to remedy such practices. If the court agrees, the suit will include thousands of current and former minor league players.See,Sennev.Office of the Commissioner of Baseball,Case No. 3:14-cv-00608-JCS (United Sta
Thirty-three former minor league ball players seek to pull back the curtain on alleged system-wide violations of minimum wage or overtime. Their federal class action suit challenges Commissioner Bud Selig, the Office of the Commissioner, and, in effect, every baseball team in the country to remedy such practices. If the court agrees, the suit will include thousands of current and former minor league players. See, Senne v. Office of the Commissioner of Baseball, Case No. 3:14-cv-00608-JCS (United States District Court, Northern District of California, San Francisco Division); and “Most minor league ballplayers earn less than half as much money as fast-food workers” U.S.A. Today, March 6, 2014.
The federal Fair Labor Standards Act and the laws of every state require the payment of minimum wage and overtime to the vast majority of workers, including many professional athletes. According to these minor league plaintiffs, the Major League Baseball “cartel” has considered itself above such mundane requirements as employment laws for many years.
The players allege that in concert with the team owners the Commissioner establishes salary amounts that all teams pay their minor league players. Shocking if true, the players assert that while the unionized major leaguers earn a minimum of $500,000 per season (and some, of course, many times that amount), minor leaguers earn an average total of $3,000 to $7,500 for the entire five-month “championship season,” and nothing for spring and post-season training, while working 50-70 hours a week.
If the few players who brought this suit can win court approval to include the many other minor leaguers potentially affected by unlawful labor practices, the teams may have to pay millions in unpaid minimum wage and overtime. For those teams employing players in California, it could be even worse with this state’s stringent laws for penalties and other damages arising from underpayment of wages. These include (but are not limited to):
This suit again points up the vital importance of employer attention to the details of timekeeping, pay and records maintenance practices. Significant, business-breaking consequences can be involved for a company’s alleged “little” errors that affect a large number of employees. See, The Devil Is In The Details: Employment Class Action Suits Can Hinge On A Court’s Choice of Definitions. There is even greater urgency for California employers with this state’s minimum wage increase to $9.00/hour on July 1, 2014. See, California Minimum Wage Increasing.
For further information and assistance on such critical matters, please contact attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
May 22, 2014
Thirty-three former minor league ball players seek to pull back the curtain on alleged system-wide violations of minimum wage or overtime. Their federal class action suit challenges Commissioner Bud Selig, the Office of the Commissioner, and, in effect, every baseball team in the country to remedy such practices. If the court agrees, the suit will include thousands of current and former minor league players.See,Sennev.Office of the Commissioner of Baseball,Case No. 3:14-cv-00608-JCS (United Sta
Thirty-three former minor league ball players seek to pull back the curtain on alleged system-wide violations of minimum wage or overtime. Their federal class action suit challenges Commissioner Bud Selig, the Office of the Commissioner, and, in effect, every baseball team in the country to remedy such practices. If the court agrees, the suit will include thousands of current and former minor league players. See, Senne v. Office of the Commissioner of Baseball, Case No. 3:14-cv-00608-JCS (United States District Court, Northern District of California, San Francisco Division); and “Most minor league ballplayers earn less than half as much money as fast-food workers” U.S.A. Today, March 6, 2014.
The federal Fair Labor Standards Act and the laws of every state require the payment of minimum wage and overtime to the vast majority of workers, including many professional athletes. According to these minor league plaintiffs, the Major League Baseball “cartel” has considered itself above such mundane requirements as employment laws for many years.
The players allege that in concert with the team owners the Commissioner establishes salary amounts that all teams pay their minor league players. Shocking if true, the players assert that while the unionized major leaguers earn a minimum of $500,000 per season (and some, of course, many times that amount), minor leaguers earn an average total of $3,000 to $7,500 for the entire five-month “championship season,” and nothing for spring and post-season training, while working 50-70 hours a week.
If the few players who brought this suit can win court approval to include the many other minor leaguers potentially affected by unlawful labor practices, the teams may have to pay millions in unpaid minimum wage and overtime. For those teams employing players in California, it could be even worse with this state’s stringent laws for penalties and other damages arising from underpayment of wages. These include (but are not limited to):
This suit again points up the vital importance of employer attention to the details of timekeeping, pay and records maintenance practices. Significant, business-breaking consequences can be involved for a company’s alleged “little” errors that affect a large number of employees. See, The Devil Is In The Details: Employment Class Action Suits Can Hinge On A Court’s Choice of Definitions. There is even greater urgency for California employers with this state’s minimum wage increase to $9.00/hour on July 1, 2014. See, California Minimum Wage Increasing.
For further information and assistance on such critical matters, please contact attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
May 22, 2014
TheEqual Employment Opportunity Commission (EEOC)is responsible for enforcing the federal laws prohibiting discrimination in commerce, including theCivil Rights Act of 1964, nicknamed “Title VII.”In the wake of the September 11 attacks, the EEOC has fielded a dramatic increase in religious discrimination complaints, 3,721 in fiscal 2013, well more than double the 1,709 charges received in fiscal 1997. This increasing volume has recently prompted the agency to publish a guide to help employers u
The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing the federal laws prohibiting discrimination in commerce, including the Civil Rights Act of 1964, nicknamed “Title VII.” In the wake of the September 11 attacks, the EEOC has fielded a dramatic increase in religious discrimination complaints, 3,721 in fiscal 2013, well more than double the 1,709 charges received in fiscal 1997. This increasing volume has recently prompted the agency to publish a guide to help employers understand their obligations under this law, “Religious Garb and Grooming in the Workplace: Rights and Responsibilities.”
The EEOC offers several examples of religious dress and grooming practices including “wearing religious clothing or articles (e.g., a Muslim hijab (headscarf), a Sikh turban, or a Christian cross); observing a religious prohibition against wearing certain garments (e.g., a Muslim, Pentecostal Christian, or Orthodox Jewish woman’s practice of not wearing pants or short skirts), or adhering to shaving or hair length observances (e.g., Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish peyes (sidelocks)).”
Title VII defines religion very broadly, including “not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, Buddhism, and Sikhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or may seem illogical or unreasonable to others.” An employee’s belief or practice can also be “religious” under Title VII “even if it is not followed by others in the same religious sect, denomination, or congregation, or even if the employee is unaffiliated with a formal religious organization.”
Title VII requires an employer, once it is aware that a religious accommodation is needed, to accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. Therefore, when an employer’s dress and grooming policy or preference conflicts with an employee’s known religious beliefs or practices, the employer must make an exception to allow the religious practice unless that would be an undue hardship on the operation of the employer’s business.
It is not necessarily an employer’s discretion to determine just what sort of hardship is sufficient to absolve it from complying with the law. As has been the critical role of the Civil Rights Act since its creation 50 years ago, the EEOC emphasizes that customer preference – and the potential for loss of business out of customer prejudices against one religion or another – cannot amount to a business’s claimed undue hardship by definition. Just a company’s concern over public bigotry and backlash from employing a member of a racial minority is never justification for refusing to hire that person, similar concern over public reaction to particular religious garb is irrelevant.
The EEOC offers a striking example. “Adarsh, who wears a turban as part of his Sikh religion, is hired to work at the counter in a coffee shop. A few weeks after Adarsh begins working, the manager notices that the work crew from the construction site near the shop no longer comes in for coffee in the mornings. When the manager makes inquiries, the crew complains that Adarsh, whom they mistakenly believe is Muslim, makes them uncomfortable in light of the anniversary of the September 11th attacks. The manager tells Adarsh that he will be terminated because the coffee shop is losing the construction crew’s business. The manager has subjected Adarsh to unlawful religious discrimination by taking an adverse action based on customer preference not to have a cashier of Adarsh’s perceived religion. Adarsh’s termination based on customer preference would violate Title VII regardless of whether he was correctly or incorrectly perceived as Muslim, Sikh, or any other religion.”
Thus Title VII – and its state counterparts, including California’s Fair Employment and Housing Act (FEHA) – in effect direct employers facing such adverse economic impact from customer prejudices to either educate its patrons sufficiently to overcome their fears or hatreds against any particular religion or to forego such customer business.
For more information on this subject, contact attorneys Tim Bowles, Cindy Bamforth, or Helena Kobrin.
May 21, 2014
Related articles:
● “Prayer Meetings in the Workplace”
● “Accommodating Religion in the Workplace”
● “What’s God Got to Do With It?”
TheEqual Employment Opportunity Commission (EEOC)is responsible for enforcing the federal laws prohibiting discrimination in commerce, including theCivil Rights Act of 1964, nicknamed “Title VII.”In the wake of the September 11 attacks, the EEOC has fielded a dramatic increase in religious discrimination complaints, 3,721 in fiscal 2013, well more than double the 1,709 charges received in fiscal 1997. This increasing volume has recently prompted the agency to publish a guide to help employers u
The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing the federal laws prohibiting discrimination in commerce, including the Civil Rights Act of 1964, nicknamed “Title VII.” In the wake of the September 11 attacks, the EEOC has fielded a dramatic increase in religious discrimination complaints, 3,721 in fiscal 2013, well more than double the 1,709 charges received in fiscal 1997. This increasing volume has recently prompted the agency to publish a guide to help employers understand their obligations under this law, “Religious Garb and Grooming in the Workplace: Rights and Responsibilities.”
The EEOC offers several examples of religious dress and grooming practices including “wearing religious clothing or articles (e.g., a Muslim hijab (headscarf), a Sikh turban, or a Christian cross); observing a religious prohibition against wearing certain garments (e.g., a Muslim, Pentecostal Christian, or Orthodox Jewish woman’s practice of not wearing pants or short skirts), or adhering to shaving or hair length observances (e.g., Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish peyes (sidelocks)).”
Title VII defines religion very broadly, including “not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, Buddhism, and Sikhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or may seem illogical or unreasonable to others.” An employee’s belief or practice can also be “religious” under Title VII “even if it is not followed by others in the same religious sect, denomination, or congregation, or even if the employee is unaffiliated with a formal religious organization.”
Title VII requires an employer, once it is aware that a religious accommodation is needed, to accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. Therefore, when an employer’s dress and grooming policy or preference conflicts with an employee’s known religious beliefs or practices, the employer must make an exception to allow the religious practice unless that would be an undue hardship on the operation of the employer’s business.
It is not necessarily an employer’s discretion to determine just what sort of hardship is sufficient to absolve it from complying with the law. As has been the critical role of the Civil Rights Act since its creation 50 years ago, the EEOC emphasizes that customer preference – and the potential for loss of business out of customer prejudices against one religion or another – cannot amount to a business’s claimed undue hardship by definition. Just a company’s concern over public bigotry and backlash from employing a member of a racial minority is never justification for refusing to hire that person, similar concern over public reaction to particular religious garb is irrelevant.
The EEOC offers a striking example. “Adarsh, who wears a turban as part of his Sikh religion, is hired to work at the counter in a coffee shop. A few weeks after Adarsh begins working, the manager notices that the work crew from the construction site near the shop no longer comes in for coffee in the mornings. When the manager makes inquiries, the crew complains that Adarsh, whom they mistakenly believe is Muslim, makes them uncomfortable in light of the anniversary of the September 11th attacks. The manager tells Adarsh that he will be terminated because the coffee shop is losing the construction crew’s business. The manager has subjected Adarsh to unlawful religious discrimination by taking an adverse action based on customer preference not to have a cashier of Adarsh’s perceived religion. Adarsh’s termination based on customer preference would violate Title VII regardless of whether he was correctly or incorrectly perceived as Muslim, Sikh, or any other religion.”
Thus Title VII – and its state counterparts, including California’s Fair Employment and Housing Act (FEHA) – in effect direct employers facing such adverse economic impact from customer prejudices to either educate its patrons sufficiently to overcome their fears or hatreds against any particular religion or to forego such customer business.
For more information on this subject, contact attorneys Tim Bowles, Cindy Bamforth, or Helena Kobrin.
May 21, 2014
Related articles:
● “Prayer Meetings in the Workplace”
● “Accommodating Religion in the Workplace”
● “What’s God Got to Do With It?”
Ina 1990 copyright decision over a sci-fi flick featuring alien frozen yogurt enslaving the human race (yes, that is correct), federal Ninth Circuit Court of Appeals Judge Alex Kozinski noted that the producer defendant — a “low-budget horror movie mogul” – justified his attempt to use another’s special effects footage without written permission because “moviemakers do lunch, not contracts.” Rejecting the position, Judge Kozinski helpfully observed: “Common sense tells us that agreements sho
In a 1990 copyright decision over a sci-fi flick featuring alien frozen yogurt enslaving the human race (yes, that is correct), federal Ninth Circuit Court of Appeals Judge Alex Kozinski noted that the producer defendant — a “low-budget horror movie mogul” – justified his attempt to use another’s special effects footage without written permission because “moviemakers do lunch, not contracts.” Rejecting the position, Judge Kozinski helpfully observed: “Common sense tells us that agreements should routinely be put in writing. This simple practice prevents misunderstandings by spelling out the terms of a deal in black and white, forces parties to clarify their thinking and consider problems that could potentially arise, and encourages them to take their promises seriously because it’s harder to backtrack on a written contract than on an oral one.” Effects Associates, Inc. v. Larry Cohen, et al., (1990) 908 F.2d 555.
Judge Kozinski earlier this year issued a highly controversial decision in another copyright case – this time over an actor’s attempt to have footage removed from YouTube, a Google company. Garcia v. Google, (2014) 743 F.3d 1258. Once again, the lack of a written contract played a part in the decision.
The film this time was the anti-Islamic Innocence of Muslims, which our government had initially claimed was the impetus for the fatal September, 2012 attack on the U.S. consulate in Benghazi, Libya. While this allegation was later shown to be untrue, Innocence of Muslims did prompt death threats against all involved in its production because it posed the profane question, “Is your Mohammed a child molester?” Actor Cindy Lee Garcia, who had played the character who supposedly uttered that line, was one of those targeted.
Garcia, who had spent three days on set and was paid $500, claimed she actually never said those words and had no idea she was going to be in an incendiary film that could easily lead to riots and death threats. Garcia contended the producer lied, claiming she was performing in “Desert Warrior” — an adventure film purportedly set in ancient Arabia. She asserted the script did not contain the offensive words but were later dubbed in without her permission or knowledge for the final film.
After the death threats forced her to move her home and business and engage in other security measures to protect her safety, Garcia attempted eight times to get Google to remove the film from YouTube to no avail. She then filed for an injunction in federal court, claiming she owned the copyright in her own performance and that Google was required on her demand to take the video down. Although the trial court judge disagreed, on appeal Judge Kozinski, now Chief Judge of the Ninth Circuit, awarded Garcia that injunction.
While Judge Kozinski’s decision will almost certainly not be the last word, it is potentially monumental, the first time a court has ruled that an individual actor with a minor film role has a copyright in her own performance. This in turn gave Garcia the power to require any alleged copyright infringers – in this case Google and YouTube — to refrain from showing that film.
Typically, when a movie is made, the producer has all actors, and certainly the minor ones, sign a contract to ensure that they give up any rights they might possibly claim to ownership of any copyright connected with the production. In the usual industry practice, producers hire the actors as employees, in which case their contributions to the film are deemed “works made for hire” under U.S. Copyright law. If, on the other hand, a production hires actors as independent contractors, they will typically sign away (assign to the production company) any rights they may have in their performance. Here the court found that the producer did not obtain any such written agreement. Although Google submitted an agreement that Garcia had supposedly signed, Garcia claimed it was a forgery.
An authentic, adequately worded written agreement taking all such copyright rights away from Garcia would have almost certainly left the producers, as well as Google and YouTube, with the discretion of showing the Innocence of Muslims film however and whenever they chose. Yet, for moviemakers inattentive enough to mistakenly presume a handshake over lunch is just as good as a written contract, the potential ramifications of that decision are virtually limitless, turning discretion over to the actors to impose their control over a film’s content, distribution and marketing.
A producer’s or director’s artistic vision can play a critical role – for better or worse – in the collective cultural life of our world, but only if the legal details are confirmed in writing. Maintaining that role requires contracts with each participant in a film that acknowledges who owns all copyrights, whether as a work made for hire, by assignment, or, ideally both. Such agreements should also always ensure that assignment includes all moral rights, or “droit moral” – rights to control the artistic use of a creative contribution. It should also go without saying that such agreements should honestly portray the production to which the actors are contributing.
For more information on this subject, contact the firm’s Of Counsel attorney, Helena Kobrin.
May 14, 2014
Ina 1990 copyright decision over a sci-fi flick featuring alien frozen yogurt enslaving the human race (yes, that is correct), federal Ninth Circuit Court of Appeals Judge Alex Kozinski noted that the producer defendant — a “low-budget horror movie mogul” – justified his attempt to use another’s special effects footage without written permission because “moviemakers do lunch, not contracts.” Rejecting the position, Judge Kozinski helpfully observed: “Common sense tells us that agreements sho
In a 1990 copyright decision over a sci-fi flick featuring alien frozen yogurt enslaving the human race (yes, that is correct), federal Ninth Circuit Court of Appeals Judge Alex Kozinski noted that the producer defendant — a “low-budget horror movie mogul” – justified his attempt to use another’s special effects footage without written permission because “moviemakers do lunch, not contracts.” Rejecting the position, Judge Kozinski helpfully observed: “Common sense tells us that agreements should routinely be put in writing. This simple practice prevents misunderstandings by spelling out the terms of a deal in black and white, forces parties to clarify their thinking and consider problems that could potentially arise, and encourages them to take their promises seriously because it’s harder to backtrack on a written contract than on an oral one.” Effects Associates, Inc. v. Larry Cohen, et al., (1990) 908 F.2d 555.
Judge Kozinski earlier this year issued a highly controversial decision in another copyright case – this time over an actor’s attempt to have footage removed from YouTube, a Google company. Garcia v. Google, (2014) 743 F.3d 1258. Once again, the lack of a written contract played a part in the decision.
The film this time was the anti-Islamic Innocence of Muslims, which our government had initially claimed was the impetus for the fatal September, 2012 attack on the U.S. consulate in Benghazi, Libya. While this allegation was later shown to be untrue, Innocence of Muslims did prompt death threats against all involved in its production because it posed the profane question, “Is your Mohammed a child molester?” Actor Cindy Lee Garcia, who had played the character who supposedly uttered that line, was one of those targeted.
Garcia, who had spent three days on set and was paid $500, claimed she actually never said those words and had no idea she was going to be in an incendiary film that could easily lead to riots and death threats. Garcia contended the producer lied, claiming she was performing in “Desert Warrior” — an adventure film purportedly set in ancient Arabia. She asserted the script did not contain the offensive words but were later dubbed in without her permission or knowledge for the final film.
After the death threats forced her to move her home and business and engage in other security measures to protect her safety, Garcia attempted eight times to get Google to remove the film from YouTube to no avail. She then filed for an injunction in federal court, claiming she owned the copyright in her own performance and that Google was required on her demand to take the video down. Although the trial court judge disagreed, on appeal Judge Kozinski, now Chief Judge of the Ninth Circuit, awarded Garcia that injunction.
While Judge Kozinski’s decision will almost certainly not be the last word, it is potentially monumental, the first time a court has ruled that an individual actor with a minor film role has a copyright in her own performance. This in turn gave Garcia the power to require any alleged copyright infringers – in this case Google and YouTube — to refrain from showing that film.
Typically, when a movie is made, the producer has all actors, and certainly the minor ones, sign a contract to ensure that they give up any rights they might possibly claim to ownership of any copyright connected with the production. In the usual industry practice, producers hire the actors as employees, in which case their contributions to the film are deemed “works made for hire” under U.S. Copyright law. If, on the other hand, a production hires actors as independent contractors, they will typically sign away (assign to the production company) any rights they may have in their performance. Here the court found that the producer did not obtain any such written agreement. Although Google submitted an agreement that Garcia had supposedly signed, Garcia claimed it was a forgery.
An authentic, adequately worded written agreement taking all such copyright rights away from Garcia would have almost certainly left the producers, as well as Google and YouTube, with the discretion of showing the Innocence of Muslims film however and whenever they chose. Yet, for moviemakers inattentive enough to mistakenly presume a handshake over lunch is just as good as a written contract, the potential ramifications of that decision are virtually limitless, turning discretion over to the actors to impose their control over a film’s content, distribution and marketing.
A producer’s or director’s artistic vision can play a critical role – for better or worse – in the collective cultural life of our world, but only if the legal details are confirmed in writing. Maintaining that role requires contracts with each participant in a film that acknowledges who owns all copyrights, whether as a work made for hire, by assignment, or, ideally both. Such agreements should also always ensure that assignment includes all moral rights, or “droit moral” – rights to control the artistic use of a creative contribution. It should also go without saying that such agreements should honestly portray the production to which the actors are contributing.
For more information on this subject, contact the firm’s Of Counsel attorney, Helena Kobrin.
May 14, 2014
A minimal underpayment of wages to a single worker can morph into a claim potentially worth millions if magnified across a “class” of many workers subject to the same alleged employment practices. Targeting larger employers, such “class action” suits have become big business in the courts across the United States, including California.
A minimal underpayment of wages to a single worker can morph into a claim potentially worth millions if magnified across a “class” of many workers subject to the same alleged employment practices. Targeting larger employers, such “class action” suits have become big business in the courts across the United States, including California.
The success or failure of such a massive claim against United States Steel Corporation fell on the Supreme Court’s chosen definition of the term “changing clothes.” Sandifer, et al. v. United States Steel Corp. 200 United States Reports (U.S.) 310, 134 Supreme Court Reporter (S.Ct.) 870, decided January 27, 2014.
The issue was whether the safety gear employer U.S. Steel required workers to wear in its plants – including flame retardant jacket, protective pants, gloves and hard hat — was actually “clothing” or not. Since their union had made an agreement with the company that time workers spent “changing clothes” at the beginning and end of the day would not be compensated, the employees who brought the suit claimed such protective gear was not “clothing” because these items were largely donned over garments worn for decency. Utilizing Webster’s New International Dictionary of the English Language (2nd edition, 1950) (Webster’s Second), the Court broadly defined “clothing” and related terms in favor of employer U.S. Steel, defeating the lawsuit.
U.S. Employment Law History: The case’s outcome required an examination of the history of employment law – and the tensions between organized labor and management — in the United States. Toward the end of the Great Depression, Congress created the Fair Labor Standards Act (1938) (FLSA), governing minimum wages for the majority of employees nationwide. The Supreme Court has traditionally interpreted the reach of the FLSA broadly, for example finding that compensable work time includes “all time spent during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed workplace” and that such time includes “preliminary activities after arriving … such as putting on aprons and overalls [and] removing shirts.”
Businesses pushed back in the later 1940s. Organized labor had used the Court’s expansive application of the FLSA to bring “portal” lawsuits for industry to compensate employees for time putting on and taking off work-related gear (“portals” being the entrances to mines). Yet, industry convinced Congress and President Truman that such broad application violated “long-established customs, practices, and contracts between employers and employees.” The Portal-to-Portal Act of 1947 thus excluded from mandatorily compensable time “activities which are preliminary to or postliminary to [a worker’s] principal activity or activities …”
The struggle continued. The Labor Department promptly claimed the Portal-to-Portal Act would not apply to (and thus companies would have to pay wages for) time “changing clothes” and “washing up and showering” if those activities were so directly related to the specific work of an employee that they were an “integral part of that employee’s principal activity.” In response, Congress amended the FLSA in 1949 to permit industry and labor to exclude “changing clothes” or “washing” from compensable work time through the terms or customs and practices encompassed by written collective bargaining agreements. 29 United States Code [U.S.C.] section 203(o).
When several workers brought this suit on behalf of some 800 current and former employees, U.S. Steel and the steelworkers union had maintained an agreement excluding “changing clothes” from compensable work time for some 50 years, since 1947.
Definition of “Clothes”: The employees in this case sought to define “clothes” as excluding items designed and used to protect against workplace hazards, citing a Webster’s definition that limited clothes to items worn for “decency or comfort.” Observing there is no meaningful distinction between items worn for protection or those worn for comfort, the Court in any event choose to apply another, broader definition of “clothes” from the same dictionary, items intended to cover some part of the human body or just plain “wearing apparel.”
Definition of “Changing”: Again, the employees attempted to use a Webster’s definition that suited their purposes, arguing that “changing clothes” only means substituting one article for another. They thus asserted that since protective gear went over a worker’s street clothes, a person wasn’t really changing into them. The Court again disagreed, using another Webster’s definition for “changing” that embraces two concepts, substituting and altering. Thus, to the Court, donning or doffing protective gear is within the definition of “changing clothes” as the items cover the body and, when worn, alter the person’s overall dress.
Outcome, the Art of a Supreme Court Decision: Wading into the 12 specific items of protective gear involved in this case, the Court found nine of them were “designed and used to cover the body and are commonly regarded as articles of dress” (including the jacket, pants, hood and hardhat). However, the Court found that three of them – safety glasses, earplugs and a respirator — were not clothing, i.e., “articles of dress.”
This of course created the potential that courts would now have to determine how many minutes were spent putting or taking off the nine items (non-compensable) and how many were spent putting on or removing the other three (compensable). To avoid the need for such judicial micromanagement, the Court artfully punted, ruling that if the changing time involving all 12 items is mostly spent with the nine articles of clothing, then the entire period should be regarded as changing clothes.
While this decision concerned a single workplace practice and whether it was covered in a specific union contract, it does illustrate the great stakes that are involved when a company allegedly makes “little” errors that affect a large number of employees. Such situations can grow into class action claims on a scale that could place a business out of business. Thus, careful and continuing management attention to the details of employer timekeeping, rest and meal break periods, wage calculations and a host of other workplace procedures is essential.
Please contact attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin for assistance on such critical matters.
May 9, 2014
A minimal underpayment of wages to a single worker can morph into a claim potentially worth millions if magnified across a “class” of many workers subject to the same alleged employment practices. Targeting larger employers, such “class action” suits have become big business in the courts across the United States, including California.
A minimal underpayment of wages to a single worker can morph into a claim potentially worth millions if magnified across a “class” of many workers subject to the same alleged employment practices. Targeting larger employers, such “class action” suits have become big business in the courts across the United States, including California.
The success or failure of such a massive claim against United States Steel Corporation fell on the Supreme Court’s chosen definition of the term “changing clothes.” Sandifer, et al. v. United States Steel Corp. 200 United States Reports (U.S.) 310, 134 Supreme Court Reporter (S.Ct.) 870, decided January 27, 2014.
The issue was whether the safety gear employer U.S. Steel required workers to wear in its plants – including flame retardant jacket, protective pants, gloves and hard hat — was actually “clothing” or not. Since their union had made an agreement with the company that time workers spent “changing clothes” at the beginning and end of the day would not be compensated, the employees who brought the suit claimed such protective gear was not “clothing” because these items were largely donned over garments worn for decency. Utilizing Webster’s New International Dictionary of the English Language (2nd edition, 1950) (Webster’s Second), the Court broadly defined “clothing” and related terms in favor of employer U.S. Steel, defeating the lawsuit.
U.S. Employment Law History: The case’s outcome required an examination of the history of employment law – and the tensions between organized labor and management — in the United States. Toward the end of the Great Depression, Congress created the Fair Labor Standards Act (1938) (FLSA), governing minimum wages for the majority of employees nationwide. The Supreme Court has traditionally interpreted the reach of the FLSA broadly, for example finding that compensable work time includes “all time spent during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed workplace” and that such time includes “preliminary activities after arriving … such as putting on aprons and overalls [and] removing shirts.”
Businesses pushed back in the later 1940s. Organized labor had used the Court’s expansive application of the FLSA to bring “portal” lawsuits for industry to compensate employees for time putting on and taking off work-related gear (“portals” being the entrances to mines). Yet, industry convinced Congress and President Truman that such broad application violated “long-established customs, practices, and contracts between employers and employees.” The Portal-to-Portal Act of 1947 thus excluded from mandatorily compensable time “activities which are preliminary to or postliminary to [a worker’s] principal activity or activities …”
The struggle continued. The Labor Department promptly claimed the Portal-to-Portal Act would not apply to (and thus companies would have to pay wages for) time “changing clothes” and “washing up and showering” if those activities were so directly related to the specific work of an employee that they were an “integral part of that employee’s principal activity.” In response, Congress amended the FLSA in 1949 to permit industry and labor to exclude “changing clothes” or “washing” from compensable work time through the terms or customs and practices encompassed by written collective bargaining agreements. 29 United States Code [U.S.C.] section 203(o).
When several workers brought this suit on behalf of some 800 current and former employees, U.S. Steel and the steelworkers union had maintained an agreement excluding “changing clothes” from compensable work time for some 50 years, since 1947.
Definition of “Clothes”: The employees in this case sought to define “clothes” as excluding items designed and used to protect against workplace hazards, citing a Webster’s definition that limited clothes to items worn for “decency or comfort.” Observing there is no meaningful distinction between items worn for protection or those worn for comfort, the Court in any event choose to apply another, broader definition of “clothes” from the same dictionary, items intended to cover some part of the human body or just plain “wearing apparel.”
Definition of “Changing”: Again, the employees attempted to use a Webster’s definition that suited their purposes, arguing that “changing clothes” only means substituting one article for another. They thus asserted that since protective gear went over a worker’s street clothes, a person wasn’t really changing into them. The Court again disagreed, using another Webster’s definition for “changing” that embraces two concepts, substituting and altering. Thus, to the Court, donning or doffing protective gear is within the definition of “changing clothes” as the items cover the body and, when worn, alter the person’s overall dress.
Outcome, the Art of a Supreme Court Decision: Wading into the 12 specific items of protective gear involved in this case, the Court found nine of them were “designed and used to cover the body and are commonly regarded as articles of dress” (including the jacket, pants, hood and hardhat). However, the Court found that three of them – safety glasses, earplugs and a respirator — were not clothing, i.e., “articles of dress.”
This of course created the potential that courts would now have to determine how many minutes were spent putting or taking off the nine items (non-compensable) and how many were spent putting on or removing the other three (compensable). To avoid the need for such judicial micromanagement, the Court artfully punted, ruling that if the changing time involving all 12 items is mostly spent with the nine articles of clothing, then the entire period should be regarded as changing clothes.
While this decision concerned a single workplace practice and whether it was covered in a specific union contract, it does illustrate the great stakes that are involved when a company allegedly makes “little” errors that affect a large number of employees. Such situations can grow into class action claims on a scale that could place a business out of business. Thus, careful and continuing management attention to the details of employer timekeeping, rest and meal break periods, wage calculations and a host of other workplace procedures is essential.
Please contact attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin for assistance on such critical matters.
May 9, 2014
Effective April 18, 2014, theEqual Employment Opportunity Commission(EEOC) doubled the penalty for an employer’s failure to post that agency’s “Equal Employment Opportunity is the Law” notice, from $110 to $210 per violation.See,29 Code of Federal Regulations (CFR) section 1601.30(b).
Effective April 18, 2014, the Equal Employment Opportunity Commission (EEOC) doubled the penalty for an employer’s failure to post that agency’s “Equal Employment Opportunity is the Law” notice, from $110 to $210 per violation.See, 29 Code of Federal Regulations (CFR) section 1601.30(b).
The required notice includes the basics for:
The 1964 Civil Rights Act (Title VII) (prohibits employment discrimination based on a protected class including race, color, religion, sex [including pregnancy] and national origin);
The Americans with Disabilities Act (ADA) (prohibits workplace disability discrimination); and
The Genetic Information Non-Discrimination Act (GINA) (prohibits workplace discrimination based on genetic information).
Covered employers include all private companies employing at least 15 individuals and all federal contractors and subcontractors. The notice must be posted prominently for viewing by employees and job applicants, e.g., personnel office, lunchroom or company bulletin board.
For more information concerning required workplace notices, contact one of our attorneys, Timothy Bowles, Cindy Bamforth or Helena Kobrin.