Wednesday, July 1, 2015
In recent legal challenges, Uber, Lyft, and other so-called “ride-sharing” companies have argued that the drivers who contract with them are independent contractors, not their employees, for purposes of the Fair Labor Standards Act (FLSA) and other laws. Their argument: We’re each mostly a technology platform for matching drivers and riders, not a transportation company. This argument has not persuaded. See, e.g., O’Connor v. Uber Techs. Inc., No. 3:13-CV-03826, 2015 WL 1069092, at *6-7 (N.D. Cal., March 11, 2015) (“Uber does not simply sell software; it sells rides. Uber is no more a ‘technology company’ than Yellow Cab is a “technology company” because it uses CB radios to dispatch taxi cabs . . . Uber only makes money if its drivers actually transport passengers.”).
Yet, even if they lose the employee/independent-contractor fight, this comparison to taxicab companies might well cut partly in their favor down the road, because section 13(b)(17) of FLSA exempts from its overtime protections “any driver employed by an employer engaged in the business of operating taxicabs.” 29 U.S.C. § 213(b)(17). Some State wage and hour laws do something similar. E.g., N.Y. Labor Law § 651(5) (defining “employee” to exclude anyone employed “as a driver engaged in operating a taxicab”); 43 Penn. Stat. § 333.105(b) (exempting from State overtime requirements “[a]ny driver employed by an employer engaged in the business of operating taxicabs”); Calif. Industrial Wage Commission Order No. 9-2001, § 3(M) (2014) (“provisions of this section [on overtime] shall not apply to taxicab drivers”).
So, is Uber, Lyft, or another “ride-sharing” company engaged in the “business of operating taxicabs” under FLSA § 13(b)(17)? The U.S. Department of Labor’s Field Operations Handbook (1999 ed.) (DOL-FOH), chapter 24, says this:
24h01 “Business of operating taxicabs.” The taxicab business consists normally of common carrier transportation in small motor vehicles of persons and such property as they may carry with them to any requested destination in the community. The business operates without fixed routes or contracts for recurrent transportation. It serves the miscellaneous and predominantly local transportation need of the community. It may include such occasional and unscheduled trips to or from transportation terminals as the individual passengers may request, and may include stands at the transportation terminals as well as at other places where numerous demands for taxicab transportation may be expected.
DOL adopted this view in August 1974. See also DOL-FOH 24h03(a)(4) (“airport limousine service” as example of work that falls outside this exemption).
Since then, some judges have deferred to the DOL Handbook view in deciding whether a defendant-employer—often those that advertise as a limousine service—falls within this exemption. E.g., Cariani v. D.L.C. Limousine Services, 363 F. Supp. 2d 637, 645 (S.D.N.Y. 2005); Arena v. Plandome Taxi Inc., 2014 WL 1427907, at *15 (E.D.N.Y., April 14, 2014). In contrast, in Rossi v. Associated Limousine Services, 438 F. Supp. 2d 1354, 1363 (S.D. Fla. 2006), the judge emphasized that while the defendant there let its customers “determine the destination of the vehicle,” it mattered more that it “advertises itself as a limousine company”; it was “not licensed to provide taxicab transportation”; its drivers “do not cruise for customers and cannot be hailed down by customers,” but prearrange transport; and it sets fares in advance based on a flat or hourly rate, not based on a taximeter.
How does all this apply to Uber and other “ride-sharing” companies? In some ways, they seem like a “taxicab” business described in DOL’s Handbook—their drivers provide mostly local transportation, without fixed routes, and they largely go where the customer tells them to go. In other respects, it’s not so clear. When you use the Uber app, is it like “hailing” or “flagging down” a taxicab on the fly? Or is it more like prearranging transport, because Uber drivers are not supposed to pick up customers who don’t use the app to set up the ride? See Opinion Letter, Wage and Hour Division, U.S. DOL, 1998 WL 852774, at *1 (April 17, 1998) (“The ordinary meaning of [“taxicabs”] contemplates vehicles that are offered for hire to the general public on city streets. While it is not necessary that all the transportation be provided to persons who ‘flag down’ the vehicles, that is an important aspect of the common meaning of ‘taxicab which your client's vehicles do not possess.”).
In grappling with all this, it might matter that FLSA’s exemptions are supposed to be read narrowly, see Mitchell v. Kentucky Finance Co., 359 U.S. 290, 295 (1959), and consistent with their purpose. So, what’s that purpose? Actually, it’s not at all clear. One court searched the FLSA legislative history and couldn’t find “any explicit explanation for the taxicab exemption.” Arena, 2014 WL 1427907, at *13. Perhaps Congress exempted the taxicab business, because back then it was hard for employers to verify how many hours a driver spent looking for customers to pick up. If so, that’s less of a problem now, because ride-sharing companies like Uber and Lyft have the technology to monitor precisely when a driver makes himself available for rides (via the ride-sharing app) and how long an actual ride takes from pick-up to drop-off.
Tuesday, April 28, 2015
The annual Colloquium on Scholarship in Employment and Labor Law (COSELL) will be held at Indiana University Maurer School of Law, Sept. 11-12, 2015, in Bloomington, Indiana. This conference, now in its tenth year, brings together labor and employment law professors from across the country. It offers participants the opportunity to present works-in-progress to a friendly and knowledgeable audience.
Registration is now open at: http://www.law.indiana.edu/cosell.
If you’re planning to come, please go ahead and register now; you can fill in details about the project you will present later in the summer.
The conference is free, and we will provide all meals during the conference. Travel & hotel information is found on the website.
Please feel free to contact any of us with questions.
We will look forward to hosting you in Bloomington!
April 28, 2015 in About This Blog, Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty News, Faculty Presentations, International & Comparative L.E.L., Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0)
Saturday, January 10, 2015
A unanimous California Supreme Court clarified that on-call employees required to spend time at their worksites and under the employer’s control are entitled to compensation for all hours, including sleep time. In addition, the Court unequivocally held that state wage and hour law does not implicitly incorporate the federal standard unless state law and the wage orders contain an express exemption similar to that found in federal law. The Women's Employment Rights Clinic of Golden Gate University weighed in as amicus on behalf of low-wage worker advocates and Prof. Hina Shah argued before the Cal. Supreme Court. The LA Times ran a story on this dramatic development.
Wednesday, December 10, 2014
The Los Angeles Times has published a series of stories—“Product of Mexico,” by reporter Richard Marosi, with photos and video by Don Bartletti—on the harsh conditions faced by farm laborers in Mexico who work to supply tomatoes, cucumbers, and other fruits and vegetables for sale in US stores. Parts one and two of this four-part series are here and here.
Marosi and Barletti spent eighteen months traveling across nine Mexican states. They observed conditions at thirty farm labor camps, and interviewed “hundreds” of workers. They found that many farm labors “are essentially trapped for months at a time in rat-infested camps, often without beds and sometimes without functioning toilets or a reliable water supply.” Some growers withhold weekly wages (in violation of Mexican law) “to prevent workers from leaving during peak harvest periods.” And farm workers “often go deep in debt paying inflated prices for necessities at company stores.” Some go hungry. Others face the threat of violence.
They also conclude that although many US companies have “social responsibility guidelines” that preclude buying goods from suppliers that do not comply with minimum labor standards, those commitments are poorly enforced. That’s consistent with the general conclusion of some (e.g., Locke 2013) that, given complex cross-national supply chains, such private voluntary agreements are quite limited in their ability to ensure minimum labor standards.
Saturday, December 6, 2014
A zero-hour contract is a "contract" of employment creating an on-call arrangement between employer and employee and in which the employer asserts it has no obligation to provide any work for the employee. It's become common in the United Kingdom, and apparently is being "offered" to employees by many American-owned companies including McDonald's and Burger King. In many ways, it's similar to just-in-time scheduling that has become increasingly common in the U.S. retail/fast-food economy, except that in some weeks an employee many receive zero work hours.
Are zero hours contracts lawful? This note responds to the DBIS consultation on banning exclusivity clauses (August 2014). It asks the following: what is a zero hours contract? To what extent are zero hours contracts legal? Why have zero hours contracts spread? And finally, what is the right thing to do?
Stephen Lee (Irvine) has just posted on SSRN his essay (forthcoming Irvine L. Rev.) Policing Wage Theft in the Day Labor Market. The toic is one with which -- until I read his essay -- I was unfamiliar. Here's an excerpt of his abstract:
In recent years, workers’ rights advocates have turned to a novel tactic in the fight against employer exploitation: pushing for the criminalization of wage theft.... In this Essay, I focus on the challenges of enforcing wage theft laws within those industries dependent on unauthorized immigrant labor. I argue that federal immigration enforcement programs — ranging from funding inducements to information-sharing schemes to collateral penalties — dampen the promise of turning to the police as allies in the effort to eradicate wage theft.... My point here is not to dissuade labor rights advocates from ever turning to the criminal justice system for help in the fight against workplace exploitation. But assessing whether the police can solve the problem of wage theft in the day labor market requires further study. Thus, I conclude the Essay with a research agenda of sorts in which I lay out further research trajectories to help answer the question of when policing wage theft can be both effective and desirable.
Monday, December 1, 2014
Thanks to Monique Lillard (Idaho), chair of the AALS Labor Relations and Employment section and Natasha Martin (Seattle), chair of the AALS Employment Discrimination section for sending along the joint newsletter of the two sections for posting. Download it while it's hot: Download Joint Newsletter for AALS Sections
December 1, 2014 in Disability, Employment Common Law, Employment Discrimination, Faculty News, International & Comparative L.E.L., Labor and Employment News, Labor Law, Public Employment Law, Scholarship, Teaching, Wage & Hour | Permalink | Comments (0) | TrackBack (0)
Wednesday, November 19, 2014
Jonathan Harkavy (Patterson Harkvay) sends word of Martin v. Wood, No. 13-2283 (4th Cir. Nov. 18, 2014), in which the Fourth Circuit dismissed on Eleventh Amendment grounds an FLSA suit bright by an employee against supervisors in their individual capacities for allegedly improperly refusing to authorize overtime for hours worked in excess of 40 per week.
Monday, November 10, 2014
More evidence of the adverse health effects of wage theft, this time from a case study of San Francisco’s Chinatown: Meredith Minkler et al., “Wage Theft as a Neglected Public Health Problem: An Overview and Case Study From San Francisco’s Chinatown District,” American Journal of Public Health 104(6) (June 2014): 1010-1020. Here’s the abstract:
Wage theft, or nonpayment of wages to which workers are legally entitled, is a major contributor to low income, which in turn has adverse health effects. We describe a participatory research study of wage theft among immigrant Chinatown restaurant workers. We conducted surveys of 433 workers, and developed and used a health department observational tool in 106 restaurants. Close to 60% of workers reported 1 or more forms of wage theft (e.g., receiving less than minimum wage [50%], no overtime pay [> 65%], and pay deductions when sick [42%]). Almost two thirds of restaurants lacked required minimum wage law signage. We discuss the dissemination and use of findings to help secure and enforce a wage theft ordinance, along with implications for practice.
(The paper identifies wage theft to include the employer’s failure to provide sick leave under a mandatory paid sick leave law.) Based on their findings, the study authors estimate that in 2008, the roughly 2,500 restaurant workers in Chinatown lost over $10 million in wages—over $8.5 million attributable to minimum wage violations alone.
Wednesday, October 8, 2014
As Jason previewed yesterday, the Supreme Court heard oral arguments this morning in Integrity Staffing Solutions v. Busk, a case about whether end-of-shift security screenings are compensable or non-compensable as postliminary activities under the Portal to Portal Act. The oral argument transcript is now up on the Supreme Court's website for your reading pleasure.
I've skimmed it and have just a few observations. The questions for the employer's counsel and the Solicitor General pushed them to distinguish this security process from things like closing out a cash register or showering after working with chemicals (compensable). The questions for the employees' counsel pushed for a distinction between this and the process to clock out (not compensable). The one main takeaway for me is that the concepts in this area are especially slippery. What does it mean for something to be a principal activity of one's work, for example. Is it the central thing a person is hired to do, or might it be more task focused? Does the location of the conduct matter? Does it help to think about whether the person is waiting to be engaged or engaged to wait? Everyone at the argument tried to come up with a definition, but words failed them, and examples seemed the only way to talk about the rules. Those examples were hard to generalize from, though, leading the argument in circles several times.
Ultimately, I think the decision will ultimately rest on whether a majority of the justices see this as more like clocking out or like showering off chemicals at shift's end.
Monday, October 6, 2014
The Southeastern Association of Law Schools holds its annual meeting every summer at the end of July/beginning of August, and planning for next year's programming has started. For the past several years, a workshop for labor and employment law has taken place over several of the days. Michael Green (Texas A & M) is helping to organize the workshop for next summer. If you are interested in participating, feel free to get in touch with him: firstname.lastname@example.org. Some suggestions already made include panels or discussion groups on whistleblowing, joint employer issues, termination for off-duty conduct (including recent NFL scandals), disability and UPS v. Young, and a junior scholars workshop.
One additional piece of programming already proposed is a discussion group on attractiveness issues in Employment Discrimination cases. Wendy Greene is helping to organize it, so get in touch with her if you are interested in participating on that topic.
And regardless of whether you get in touch with Michael or Wendy, you should think about proposing programming for the annual meeting if you are at all interested and regardless of the topic. The meeting is surprisingly (because of the lovely environs) substantive, and the environment is very relaxed and is designed to be egalitarian. Here are the details:
The SEALS website www.sealslawschools.org is accepting proposals for panels or discussion groups for the 2015 meeting which will be held at the Boca Raton Resort & Club http://www.bocaresort.com/ Boca Raton, Florida, from July 27 to Aug. 2. You can submit a proposal at any time. However, proposals submitted prior to October 31st are more likely to be accepted.
This document explains how to navigate SEALS, explains the kinds of programs usually offered, and lays out the rules for composition of the different kinds of programming: Download Navigating submission. The most important things the Executive Director emphasizes are these: First, SEALS strives to be both open and democratic. As a result, any faculty member at a SEALS member or affiliate school is free to submit a proposal for a panel or discussion group. In other words, there are no "section chairs" or "insiders" who control the submissions in particular subject areas. If you wish to do a program on a particular topic, just organize your panelists or discussion group members and submit it through the SEALS website. There are a few restrictions on the composition of panels (e.g., panels must include a sufficient number of faculty from member schools, and all panels and discussion groups should strive for inclusivity). Second, there are no "age" or "seniority" restrictions on organizers. As a result, newer faculty are also free to submit proposals. Third, if you wish to submit a proposal, but don't know how to reach others who may have an interest in participating in that topic, let Russ Weaver know and he will try to connect you with other scholars in your area.
October 6, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty News, Faculty Presentations, International & Comparative L.E.L., Labor Law, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching, Wage & Hour, Workplace Trends | Permalink | Comments (0) | TrackBack (0)
Thursday, October 2, 2014
The Supreme Court granted cert in a number of cases today as a result of its long conference, including EEOC v. Abercrombie & Fitch. The cert question is this:
Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer's actual knowledge resulted from direct, explicit notice from the applicant or employee.
The district court had denied A & F's motion for summary judgment and granted the EEOC's, holding that, as a matter of law, A & F had failed to reasonably accommodate the religious practices of an applicant for employment. The Tenth Circuit reversed, remanding and ordering the district court to enter summary judgment for A & F. The applicant, a young Muslim woman, wore a hijab, a head covering, and although the store manager recommended she be hired, a district manager decided that because she wore the hijab, she should not. He determined that the hijab would not comply with the company's "Look Policy."
The Tenth Circuit held that summary judgment for A & F was proper because the applicant "never informed Abercrombie prior to its hiring decision that she wore her headscarf or 'hijab' for religious reasons and that she needed an accommodation for that practice, due to a conflict between the practice and Abercrombie’s clothing policy." Interestingly, the store manager assumed that the applicant wore her hijab for religious reasons and never raised the issue during the interview. She also did not suggest that there might be a conflict between that practice and the "Look Policy," which the applicant otherwise could easily comply with.
The Court also granted cert in another case that might have implications for employment discrimination. The question in Texas Dep't of Housing and Community Affairs v. The Inclusiveness Project is whether disparate impact claims are cognizable under the Fair Housing Act. The Fifth Circuit did not consider that question in the case. Instead, it followed its prior precedent that they were cognizable, and held that the legal standard to be used should be the regulations adopted by the Department of Housing and Urban Development.
So, overall, this term is shaping up to be another blockbuster for employment and labor. Here is a roundup.
Cases that directly deal with employment and labor questions:
- Department of Homeland Security v. MacLean, a whistleblower/retaliation case
- Integrity Staffing Solutions, Inc. v. Busk, whether time spent in security screenings is compensable under the FLSA as amended by the Portal to Portal Act.
- M&G Polymers v. Tackett, a case about presumptions related to interpretation of CBAs on retiree health benefits under the LMRA.
- Mach Mining v. EEOC, whether and to what extent the courts can enforce the EEOC's duty to conciliate before filing suit.
- Tibble v. Edison, Int'l, an ERISA case involving the duty of prudence and the limitations period for bringing claims.
- Young v. UPS, whether light duty accommodations only for on-the-job injuries violates Title VII as amended by the Pregnancy Discrimination Act.
And there is one additional case that might have implications for religious accommodations in the workplace. Holt v. Hobbs, which concerns whether a department of corrections policy that prohibits beards violates the Religious Land Use and Institutionalized Persons Act insofar as it prohibits a man from growing a one-half-inch beard in accordance with his religious beliefs.
October 2, 2014 in Beltway Developments, Employment Discrimination, Labor and Employment News, Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Wage & Hour, Worklife Issues | Permalink | Comments (0) | TrackBack (0)
Friday, August 8, 2014
In the recent debate over raising the minimum wage, an issue that’s often left out of the conversation is that of work hour insecurity. An hourly worker’s take-home pay is determined by two variables: her hourly wage and the number of hours she works. The effect of increasing the hourly wage will be blunted if the worker struggles to find sufficient hours of work. And more and more workers are struggling, particularly in service-sector jobs. Service employers like hotels, restaurants, and retail stores are increasingly adopting “just-in-time” scheduling, using sophisticated software to track customer demand and then adjusting workers’ schedules at the last minute in order to meet a pre-set ratio of labor hours to customer demand.
A recent New York Times article describes the effects of just-in-time scheduling:
- "A worker at an apparel store at Woodbury Common, an outlet mall north of New York City, said that even though some part-time employees clamored for more hours, the store had hired more part-timers and cut many workers’ hours to 10 a week from 20.
- As soon as a nurse in Illinois arrived for her scheduled 3-to-11 p.m. shift one Christmas Day, hospital officials told her to go home because the patient “census” was low. They also ordered her to remain on call for the next four hours — all unpaid.
- An employee at a specialty store in California said his 25-hour-a-week job with wildly fluctuating hours wasn’t enough to live on. But when he asked the store to schedule him between 9 a.m. and 2 p.m. so he could find a second job, the store cut him to 12 hours a week."
The Fair Labor Standards Act doesn’t regulate employers’ scheduling and staffing decisions (except in some narrow circumstances where the statute has been interpreted to require payment of wages to “on call” workers who are “engaged to wait” for work assignments), but some state laws and unions’ collective bargaining agreements do contain guaranteed pay provisions. These require employers to pay “call-in” and “send-home” pay, or a minimum number of guaranteed hours of pay when a worker is called in to work unexpectedly or sent home early. These requirements are supposed to disincentivize just-in-time scheduling. However, as I explore in a forthcoming Harvard Civil Rights-Civil Liberties Law Review article with co-authors Anna Haley-Lock and Nantiya Ruan, the laws are woefully underutilized by workers and relatively easy to work around for savvy employers.
Given the recent public interest in and support for raising the minimum wage, now is an excellent time for additional attention to the problem of work hour insecurity. In trying to end working poverty, we should be focusing on both wages and hours, and exploring possible solutions (including perhaps expanded guaranteed pay laws) to the problem of work hour insecurity.
-- Charlotte Alexander
Thursday, June 12, 2014
Just a friendly reminder from conference organizers, Melissa Hart and Scott Moss at the University of Colorado Law School, that the deadline to register to attend, and/or present a paper at, the 9th Annual Labor and Employment Scholars Colloquium is Friday, August 1, 2014. The Colloquium is scheduled in Boulder between September 11-13, 2014.
You can register and submit a paper proposal at this link:
June 12, 2014 in About This Blog, Arbitration, Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, International & Comparative L.E.L., Labor Law, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0) | TrackBack (0)
Thursday, April 24, 2014
From conference organizers Scott Moss and Melissa Hart, at the University of Colorado Law school comes word that registration is open for the Ninth Annual Colloquium on Labor and Employment Law Scholarship. The dates will be September 11th to the 13th in Boulder.
As many of you already know, this is a terrific opportunity to get to know colleagues in an informal setting and exchange ideas as we discuss works-in-progress. Past participants likely would agree that the friendly, low-key atmosphere and productive sessions, as well as the chance to socialize with our colleagues, make this gathering especially fun and valuable.
The Colloquium will follow the familiar format. We will workshop papers all day Friday through Saturday afternoon. Exact times TBD; check the event webpage for updates as the Colloquium approaches.
To register, click here.
April 24, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, International & Comparative L.E.L., Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0) | TrackBack (0)
Monday, March 17, 2014
Back in January, Maria Shriver's organization "A Woman's Nation" issued its third report on fundamental challenges facing women in the U.S.: A Woman's Nation Pushes Back from the Brink. I have not had a chance to read the whole report, which focuses on financial insecurity of women and the children who depend on them, and the impact of that financial insecurity on our country's institutions and econonic futures, but the parts I have read have been very thought provoking. For more, see the Shriver Report's home page.
In connection with that report, Shriver and HBO created a documentary, Paycheck to Paycheck: The Life and Times of Katrina Gilbert, to personalize the struggles of low wage workers, most of whom are women. The documentary is streaming free at HBO Docs YouTube page this week only.
March 17, 2014 in Commentary, Employment Discrimination, Labor and Employment News, Labor/Employment History, Pension and Benefits, Wage & Hour, Worklife Issues | Permalink | Comments (0) | TrackBack (0)
Thursday, March 13, 2014
The big news yesterday out of Washington yesterday was the story that President Obama is ordering the Department of Labor to revise the overtime exclusion regulations. We obviosuly don't have the details yet, but one of the main thrusts appears to be an attempt to roll back the Bush-era regulation on primary duty. In particular, the current rules allow excluded duties to be an employee's "primary duty"--thereby possibly precluded overtime payment--even when those duties make up less than half of the employee's work time. In addition, the agency will apparently increase the current $455/week salary minimum for the overtime exclusions. No word yet on what the new amount would be.
It's still early and we'll obviously see a lot of political fighting on this, so stay tuned.
Friday, March 7, 2014
A new posting on SSRN on Designing Law School Externships that Comply with the FLSA should be of great interest not only to those of us tilling the employment law vinyard but to pretty much everyone else in legal education. From Niki Kuckes of Roger Williams, it deals with the recent DOL letter to the ABA on law student internships and the minimum wage question. Here's the abstract:
Recent debates over the best way to educate lawyers has led to an increasing focus on providing “experiential” education in law schools – and with it, a noted growth in law school externship programs. Externships provide a valuable way of giving law students real-life legal practice experience by allowing them to earn academic credit for training in a variety of actual legal settings, from prosecutors’ offices to corporate counsel departments. Because current ABA Standards for Law Schools do not permit students to be paid for activities for which they earn academic credit, law school externships are unpaid. This can raise questions under the Fair Labor Standards Act (“FLSA”), which bars covered employers from offering unpaid positions unless those positions qualify for one of the specific exceptions recognized by the Department of Labor from federal minimum wage and overtime requirements.
This issue was recently highlighted by an exchange of letters between the Department of Labor and the American Bar Association over law school externships. In September of 2013, the Department issued an opinion letter that approved as permissible the particular externship program posited by the ABA (in which unpaid law student externs at private law firms work exclusively on pro bono cases). Following this exchange, the broader question remains as to how to design an FLSA-compliant legal externship program, outside of this narrow setting.
This Article demonstrates that the interests of the law schools and the Department of Labor are in accord in this area, and that both seek to ensure – through the ABA Standards, on the law school side, and the FLSA, on the Labor Department’s side – that unpaid externships designed as training programs genuinely provide meaningful education and training for the law student externs who participate. By parsing the FLSA case law in this area and Department of Labor guidance statements, the Article derives a set of “best practices” for designing FLSA-compliant law school externship programs, highlights some pitfalls that may arise, and suggests specific steps to be taken both by law school externship program directors and host organizations who may participate in legal externship programs.
Hat tip to Mike Yelnosky for flagging this for us.
Monday, January 27, 2014
The United States Supreme Court decided today, in an almost unanimous opinion written by Justice Scalia (Justice Sotomayor didn't join one footnote), a donning and doffing case under the Fair Labor Standards Act in Sandifer v. United States Steel Corporation.
According to the syllabus of the case, Sandifer and others filed a putative collective action under the FLSA, seeking backpay for time spent donning and doffing pieces of protective gear that they asserted U.S. Steel requires workers to wear because of hazards at its steel plants. U. S. Steel contends that this donning-and-doffing time, which would otherwise be compensable under the Act, is noncompensable under a provision in the collective-bargaining agreement.
That provision’s validity depends on 29 U. S. C. §203(o), which allows parties to collectively bargain over whether “time spent in changing clothes . . . at the beginning or end of each workday” must be compensated. The District Court granted U. S. Steel summary judgment in pertinent part, holding that petitioners’ donning and doffing constituted “changing clothes” under §203(o). The Seventh Circuit affirmed.
The Supreme Court held that the the time the workers spent donning and doffing their protective gear was not compensable by operation of §203(o). More specifically, the Court construed "clothes" in "changing of clothes" to mean items that are both designed and used to cover the body and are commonly regarded as articles of dress. Nothing in §203(o)’s text or context, according to the Court, suggests anything other than this ordinary meaning. Thus, it concluded that there was no basis for the employees' assertion that the unmodified term “clothes” somehow omits protective clothing.
Going forward, the Court stated that a more appropriate way to proceed is for courts to ask whether the period at issue can, on the whole, be fairly characterized as “time spent in changing clothes or washing.” If an employee devotes the vast majority of that time to putting on and off equipment or other non-clothes items, the entire period would not qualify as “time spent in changing clothes” under §203(o), even if some clothes items were also donned and doffed. So going forward, a distinction, for compensation purposes, will be made between between donning and doffing involving primarily protecive equipment (compensation ) as opposed to primarily protective clothing (not compensable if designated as such under the applicable CBA).
Don't you just love donning and doffing cases? :D
Monday, January 20, 2014
Thanks to Lise Gelernter (Teaching Faculty and Director, Externship Programs at SUNY Buffalo Law School) for bringing to my attention this interesting arbitration case decided by the Ninth Circuit on December 17th of last year and providing some commentary.
The case is In Re Wal-Mart Wage and Hour Litigation or Carolyn Burton v. Class Counsel. The Ninth Circuit’s summarizes the case thusly:
[T]he panel held that a non-appealability clause in an arbitration agreement that eliminates all federal court review of arbitration awards, including review under § 10 of the Federal Arbitration Act, is not enforceable.
Here is Lise's commentary:
The court reasoned that if the grounds for vacatur of an award cannot be expanded by contract beyond what is permitted by the FAA §§10-11 (per Hall Street), a contract cannot eliminate the federal judicial review of arbitration awards that is available under the FAA. The Ninth Circuit cited to a Second Circuit case that had a similar holding:
Since federal courts are not rubber stamps, parties may not, by private agreement, relieve them of their obligation to review arbitration awards for compliance with § 10(a)” of the FAA. Hoeft v. MVL Grp., Inc., 343 F.3d 57, 63–64 (2d Cir.2003), overruled on other grounds by Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008).
This creates some tension with the United States Supreme Court’s strong push for honoring almost any term of an arbitration agreement, but since these holdings are grounded in the specific terms of the FAA, perhaps they are a bit more safe from reversal or even disagreement among other circuits.
Lise points out that you can obtain this Ninth Circuit case by using the following link and selecting the Carolyn Burton case.