February 1 is Deadline for Posting CalOSHA Log 300

Our friends at the California Chamber of Commerce is reminding employers that they must post a summary of job-related injuries and illnesses from 2013 at their place of business by February 1. Obligations may vary depending on the industry, etc. See the Chamber's post here, complete with links and other valuable information.

U.S. Supreme Court Decides What the Definition of "Clothes" Is

Section 203(o) of the federal Fair Labor Standards Act permits unions and employers to include provisions in their collective bargaining agreements re whether "changing clothes" is compensable time or not.

Sandifer and others sued their employer U.S. Steel under the FLSA.  They claimed that the protective gear they had to wear as part of their job duties were not "clothes." Therefore, they were not under the exemption in Section 203(o), or covered by their collective bargaining agreement's exclusion.

The principal dispute was over these items:

Petitioners point specifically to 12 of what they state are the most common kinds of required protective gear: a flame-retardant jacket, pair of pants, and hood; a hardhat; a “snood”; “wristlets”; work gloves; leggings; “metatarsal” boots; safety glasses; earplugs; and a respirator.

A "snood"?   More later.

Anyway,  if Section 203(o) did NOT apply, then the normal rules on "donning and doffing" would.  Under those regulations and under case law, the changing into these items likely would be compensable.  Therefore, the employees wanted Section 203(o) to be inapplicable. U.S. Steel wanted the CBA's provision and Section 203(o) to bar the claim.   As a result, the Supreme Court had to decide:  what does "changing clothes" mean under Section 203(o).

Justice Scalia, writing for a unanimous court (except Justice Sotomayor did not join fn 7), concluded the following:

Dictionaries from the era of §203(o)’s enactment indicate that “clothes” denotes items that are both designed and used to cover the body and are commonly regarded as articles of dress. See Webster’s New International Dic- tionary of the English Language 507 (2d ed. 1950) (Web- ster’s Second) (defining “clothes” as “[c]overing for the human body; dress; vestments; vesture”); see also, e.g., 2 Oxford English Dictionary 524 (1933) (defining “clothes” as “[c]overing for the person; wearing apparel; dress, raiment, vesture”). That is what we hold to be the meaning of the word as used in §203(o).

 

The Court rejected the employees' argument that "clothes" did not include any type of covering that was "indispensable" to performing the job, such that anything that provided extra safety would be excluded from the definition. The Court also rejected the employer's argument that clothes means the entire ensemble or "outfit."

That task accomplished, the Court next defined "changing." The employees argued that "changing" meant only substituting one article of clothing for another (i.e., changing shirts or pants from street wear to work pants). The Court, however, disagreed:

We think that despite the usual meaning of “changing clothes,” the broader statutory context makes it plain that “time spent in changing clothes” includes time spent in altering dress.

But seriously - what is a Snood? The Court answered the question when it applied its definition of "changing clothes" to the protective gear discussed above:

Petitioners have pointed to 12 particular items: a flame- retardant jacket, pair of pants, and hood; a hardhat; a snood; wristlets; work gloves; leggings; metatarsal boots; safety glasses; earplugs; and a respirator. The first nine clearly fit within the interpretation of “clothes” elaborated above: they are both designed and used to cover the body and are commonly regarded as articles of dress. That proposition is obvious with respect to the jacket, pants, hood, and gloves. The hardhat is simply a type of hat. The snood is basically a hood that also covers the neck and upper shoulder area; on the ski slopes, one might call it a “balaclava.” The wristlets are essentially detached shirt- sleeves. The leggings look much like traditional legwarm- ers, but with straps. And the metatarsal boots—more commonly known as “steel-toed” boots—are just a special kind of shoe.

Not sure why 9 Supreme Court justices would analogize to an Eastern European ukulele or a flaky pastry. I thought that ski slope gear was called a "dickey."  Live and learn.

But what of the remaining items: earplugs, glasses, and the respirator?  They are definitely not "clothes," the Court said.  The employer then argued that putting these items on was "de minimis."  No sale. The Court noted,

A de minimis doctrine does not fit comfortably within the statute at issue here, which, it can fairly be said, is all about trifles—the relatively insignificant periods of time in which employees wash up and put on various items of clothing needed for their jobs. Or to put it in the context of the present case, there is no more reason to disregard the minute or so necessary to put on glasses, earplugs, and respirators, than there is to regard the minute or so necessary to put on a snood.

Yep, he mentioned the s-word again.

So, here's where the Court worked some magic that only the highest court in the land can do. It simply held that although ear plugs etc. were not "clothes," these additional items would still be subject to Section 203(o) collective bargaining.  That is, putting on earplugs would be compensable if the parties negotiated that.  

The employees won the argument, but lost the case.  Why?  Because the Court did not want to have district judges serving as time-study experts.  Not kidding:

it is most unlikely Congress meant §203(o) to convert federal judges into time-study professionals. That is especially so since the consequence of dispensing with the intricate exercise of separating the minutes spent clothes-changing and washing from the minutes devoted to other activities is not to prevent compensation for the uncovered segments, but merely to leave the issue of compensation to the process of collective bargaining.

This is a narrow decision that affects only the negotiation of "clothes changing" in a collective bargaining agreement.  It will have little applicability in the nonunion context.

The opinion in Sandifer v. U.S. Steel Corp. is here.

Some Recent Shaw Valenza Articles

I'll be posting our bi-weekly articles here from now on.  You can access these in a number of ways in addition to on this blog.  They'll automatically be posted on Twitter (@shawvalenza) and on our Facebook page here after I post them here. Just in case you want to read them 3 times.  And if you read the Sacramento legal newspaper, the Daily Recorder, you can read them there as well.

Our article on the new Family Friendly Workplace ordinance, which took effect 1/1/2014, is posted here.

Here's our summary on 2014 California employment laws:  Part 1 and Part 2.

And this is our recent article on subpoenas and employees' claims of medical privacy.

DGV

Court of Appeal Addresses Motivation in Retaliation Cases and the Role of Investigations

Mendoza was a long-term nurse for Western Medical Center - Santa Ana.  His performance had been excellent.  Mendoza claimed his new boss was harassing him.  Erdmann, the boss, claimed that Mendoza was sexually inappropriate to him.  The employer investigated and determined that both employees engaged in misconduct.  The employer fired both of them.

Mendoza sued for wrongful termination, claiming the hospital employer fired him for complaining about Erdmann's conduct.  He reasoned that the hospital would not have learned about any complaints about Mendoza had he not complained about Erdmann. An expert testified the hospital's investigation was not as thorough as it could have been, although the expert conceded he did not know of any facts that a "better" investigation would have uncovered.

A jury found in favor of Mendoza and awarded about $238,000 in economic and non-economic damages.  But the jury was instructed that it could find retaliation if an unlawful motive was "a" motivating reason. The Court of Appeal reversed and ordered a new trial:

It is therefore clear that the court erred in its instruction of the jury. The court should have instructed the jury to determine whether Mendoza’s report of sexual harassment was a substantial motivating reason for Mendoza’s discharge. Following Harris and Alamo, we conclude this error was prejudicial. The jury’s verdict in favor of Mendoza was extremely close (a nine to three vote). No other instructions provided to the jury could have cured the erroneous instruction with regard to the contested element. Viewing the evidence “in the light most favorable” to defendants (Huffman v. Interstate Brands Corp. (2004) 121 Cal.App.4th 679, 692), there is a reasonable probability that the
instructional error prejudicially affected the verdict.

The hospital claimed there was insufficient evidence of retaliation to support any verdict and asked the appellate court to direct a judgment in its favor.  The court of appeal ordered a retrial.  Bolstered by case law and law review articles, the court offered its thoughts (not evidence, but a basis for a plaintiff's argument) on why the jury might have found a retaliatory motive, which is the interesting part of this opinion for employers and HR professionals:

Retaliation, if it occurred, was not motivated out of a desire to protect Erdmann or punish Mendoza for harming Erdmann as such. But the protection of a specific supervisor is not the only logical reason an employer would retaliate against an employee reporting sexual harassment.. . .  . Perhaps defendants were substantially motivated by a desire to rid themselves of an individual who had become problematic by reason of his reporting sexual harassment, without regard to the accuracy of his accusations. . . . There is sufficient evidence in the record for the jury to conclude that a substantial motivating reason for Mendoza’s firing was his report of sexual harassment. Defendants terminated an excellent, long term employee soon after he reported sexual harassment by a recent hire, Erdmann. . . . Accepting Mendoza’s testimony as true (as we must for this purpose), Mendoza was not complicit in sexual misconduct at the hospital. Instead, Erdmann harassed Mendoza while Erdmann was acting as Mendoza’s supervisor at the hospital. After being confronted by defendants, Erdmann confirmed part of Mendoza’s story (i.e., that improper activity occurred) but accused Mendoza of being the instigator
and willing participant. With nothing to go on besides their respective statements, defendants claim they chose to believe Erdmann’s characterization of the incidents rather than Mendoza’s complaint.

So far, so good. But then, perhaps without taking into consideration the standard of employment at will (as it is not mentioned in the opinion), the Court seemed to impose a very high standard on at-will employers who discharge at-will employees.   

Importantly, in combination with the foregoing facts, Mendoza’s expert witness testified that there were numerous shortcomings in the investigation conducted by defendants following Mendoza’s complaint. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 278-283 [inadequate investigation is evidence of pretext].) The lack of a rigorous investigation by defendants is evidence suggesting that defendants did not value the discovery of the truth so much as a way to clean up the mess that was uncovered when Mendoza made his complaint. Defendants point to the expert’s
concession that additional facts would not necessarily have been discovered had the alleged flaws in the investigation been addressed. But the question for the jury was defendants’ subjective motivation in deciding to fire Mendoza, not whether defendants actually had all available material before them. Moreover, a more thorough investigation might have disclosed additional character and credibility evidence for defendants to consider before making their decision.

The Court then dropped a footnote to drive the point home re the importance of investigations in "he said-he said (or he said/she said) cases:

At oral argument, defense counsel asked (perhaps rhetorically) just what employers were expected to do when faced with a scenario in which two employees provide conflicting accounts of inappropriate conduct. Our answer is simple: employers should conduct a thorough investigation and make a good faith decision based on the results of the investigation. Here, the jury found this did not occur. Hopefully, this opinion will disabuse employers of the notion that liability (or a jury trial) can be avoided by simply firing every employee involved in the dispute.

To be sure, a thorough, competent investigation is a good preventive measure that can result in better decisions.  However, there is no legal duty to investigate before firing an employee at will. The sole issue here was whether the employer fired Mendoza for a lawful reason or not.  As the courts always say, the employer need not be "wise or correct" in making its decision.  And they also say: The court does not sit as a "super-personnel department" either. 

Perhaps if the employer seeks rehearing in this case (hint hint) , it will argue that the investigation duty the Court imposed applies only in the case of employment "for cause."  The proper standard for at-will employees is as follows:

"Where the employment contract itself allows the employer to terminate at will, its motive and lack of care in doing so are, in most cases at least, irrelevant." (Guz, supra, 24 Cal.4th 317, 351; cf. Cruey v. Gannett Co. (1998) 64 Cal.App.4th 356, 365 [76 Cal.Rptr.2d 670].) Since an employer does not require good cause to terminate an at-will employee, in the normal course of events an employer need not either articulate or substantiate its reasons, except to provide an advance refutation for any inference that the true reason was illegal. Unless at-will employers are to be held to a good-cause standard for termination, no inference of discrimination can reasonably be drawn from the mere lack of conclusive evidence of misconduct by the employee.
* * *
As to the investigation being flawed and biased, Employee complains that he was not informed of the charges against him by Employer or Mistry. But he cites no provision of his employment contract or employment law in general entitling an at-will employee to advance notice and a hearing before termination. His employment contract provided that he could be terminated without notice.

McGrory v. Applied Signal Technology, Inc., 212 Cal. App. 4th 1510 (2012).  (emphasis added)

This case is Mendoza v. Western Medical Center, Santa Ana, and the opinion is here.

Ninth Circuit Poses Questions to CA Supreme Court Re Suitable Seating Obligations

Happy New Year!
The Ninth Circuit is considering several class action appeals over California's "suitable seating" requirement contained in its wage orders.  Here is an example from Wage Order 7-2001, governing the retail industry:

14. Seats.(A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats. 

The Ninth Circuit is considering appeals in two cases.  One involves bank tellers.  One involves retail clerks.

In the retail case, CVS's cashiers spend about 90% of the time working a cash register, ringing up transactions.  The other 10% of the time, she has to walk around the store, performing various tasks. CVS does not provide seats for the cashiering duties, believing that standing employees provide better customer service.  CVS told the plaintiff her job involved extensive standing when it hired her. 

In the bank case, tellers spend a great deal of time at their windows, making deposits, processing withdrawals, etc.  They also escort customers to safety deposit boxes, check ATMs and perform other duties that require mobility.

The employees argue:

if an employee is engaged in a task that can objectively be performed while seated, the employer must provide the employee with a suitable seat. Under this interpretation, neither the employee’s other tasks nor the employer’s business judgment would affect whether the nature of the work reasonably permits the use of seats.

On the other hand, the employers say: 

courts should discern the nature of an employee’s work by considering the entire range of tasks the employee actually performs in combination with the employee’s job description, the layout of the workplace, the employer’s business judgment concerning the employee’s job, and any other factors the court deems relevant. An employer would only be subject to Section 14(A) when all of these factors taken together reasonably permit the use of a seat.

The Court's dilemma is that the Wage Order's text permits either interpretation because it's vague.

So, does the "nature of the work" in either or both cases reasonably permit the use of seats?  And who gets to decide?  The Ninth Circuit wants to know how the California Supreme Court interprets "the nature of the work."  Here are the questions the federal court would like answered:

1. Does the phrase “nature of the work” refer to an individual task or duty that an employee performs during the course of his or her workday, or should courts construe “nature of the work” holistically and evaluate the entire range of an employee’s duties? 

a. If the courts should construe “nature of the work” holistically, should the courts consider the entire range of an employee’s duties if more than half of an employee’s time is spent performing tasks that reasonably allow the use of a seat? 

2. When determining whether the nature of the work “reasonably permits” the use of a seat, should courts consider any or all of the following: the  employer’s business judgment as to whether the  employee should stand, the physical layout of the workplace, or the physical characteristics of the employee? 

3. If an employer has not provided any seat, does a  plaintiff need to prove what could constitute “suitable seats” to show the employer has violated Section 14(A)?

As the Ninth Circuit points out in its request, if the Supreme Court agrees to answer these questions, it will have a significant effect on California employers and employees:

Section 14 could have a dramatic impact on public policy in California as well as a direct impact on countless citizens of that state, both as employers and employees. Even a conservative estimate would put the potential penalties in these cases in the tens of millions of dollars. See Cal. Lab. Code § 2699(f)(2) (“If, at the time of the alleged violation, the person employs one or more employees, the civil penalty is one hundred dollars ($100) for each aggrieved employee per pay period for the initial violation and two hundred dollars ($200) for each aggrieved employee per pay period for each subsequent violation.”); see also Home Depot U.S.A., Inc. v. Super. Ct., 120 Cal. Rptr. 3d 166, 177 (Cal. Ct. App. 2010) (finding California Labor Code § 2699(f)(2) applies to Section 14 of Wage Order 7-2001); Bright v. 99cents Only Stores, 118 Cal. Rptr. 3d 723, 730 (Cal. Ct. App. 2010) (same).

As a former restaurant worker, I was thinking that if the plaintiffs' interpretation is correct, then a waiter taking an order would have the right to sit down at the table?  Taking the order, after all, is a duty that may be accomplished while seated.  How about the bartender?  There are other industries where the task-based approach could change the workplace significantly. Third base coach?  Factory worker?  Professor?  Will the seat have to have wheels if some movement is required within the work area (because that is "suitable")?  Does the employer have any say in what the "nature of the work" involves, or will that be up to the courts / a jury / the Division of Labor Standards Enforcement?   

Anyway, we'll see in the next few weeks if the California Supreme Court is interested in answering these and other questions.  Let's hope these questions are addressed so employers and lower courts may understand what is expected of them.

The case is Kilby v. CVS and the Ninth Circuit's request to the California Supreme Court is here.  As of now, there is no Supreme Court online docket for this case.