Today’s Labor Updates:
The de minimis doctrine is alive and well in California
Are You Disabled? Your Boss Needs to Know
Summary of NLRB Decisions for Week of March 10 – 14, 2014
The de minimis doctrine is alive and well in California
Littler Mendelson Joshua D. Kienitz USA March 18 2014
On March 7, 2014, in Troester v. Starbucks Corporation, the U.S. District Court for the Central District of California applied the de minimis doctrine and granted summary judgment to the employer in a putative class action seeking allegedly unpaid minimum and overtime wages, along with derivative penalties, for time spent after the plaintiff clocked out for the day.
Troester is notable not only because the employer was able defeat a putative class action by showing that the named plaintiff himself had no viable claims, but also because the sole basis on which the court granted summary judgment was that the post-shift time at issue was de minimis. As the U.S. Supreme Court stated in Anderson v. Mt. Clemens Pottery Co., the de minimis doctrine recognizes that “[s]plit-second absurdities are not justified by the actualities of working conditions.” What constitutes a “split-second absurdity” thus takes center stage in many off-the-clock cases where the time at issue is minimal.
In Troester, the plaintiff sought compensation for time spent setting an alarm, locking the doors of the store, and occasionally walking other employees to their cars or bringing a few items of patio furniture inside, after he clocked out for the day. The evidence showed that the plaintiff spent approximately two to five minutes on such activities every day. The court held that the “few minutes that [p]laintiff spent closing the store at the end of his shift were far from substantial and fell well within the 10-minute de minimis benchmark.” The court also noted that, as in other cases that applied the de minimis standard, it would not have been administratively practical for the employer to monitor and record the relatively minimal amount of time it took the employee to perform these activities.
In so holding, the court first recognized that the de minimis doctrine, which grew up under the Fair Labor Standards Act, also applies under California law. The court then summarized case law on the issue from courts in the Ninth Circuit, particularly in California, as follows:
To determine whether work time is de minimis, courts consider: “(1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time; and (3) the regularity of the additional work.” Applying these standards, numerous courts have held that daily periods of approximately 10 minutes are de minimis.
The court cited cases in which the de minimis doctrine was applied to preclude additional compensation for: five minutes spent walking to lunch after passing through a security clearance; six minutes logging in to a computer program, noting the time would be “arduous” to monitor and record; “several minutes” spent waiting for security checks at the end of closing shifts; and less than 10 minutes spent donning and doffing protective gear.
In contrast to these cases, in Gilmer v. Alameda-Contra Costa Transit District, the court found that a daily average of one minute and 40 seconds of uncompensated mid-shift travel time, in the aggregate, was not de minimis. The time at issue in Gilmer was not a “split-second absurdity,” the court found, because historical records allowed for precise calculation showing that the plaintiff had experienced exactly 797 minutes of mandatory uncompensated mid-shift travel time during the relevant period.
While the district court’s decision in Troester may well be appealed, two things are certain: (1) the Troester decision is valuable reading for its substantial discussion regarding the de minimis doctrine; and (2) this is an area of law well worth keeping close tabs on, as it continues to develop.
Readers should also note that the U.S. Supreme Court granted certiorari to review the Ninth Circuit’s decision in Busk v. Integrity Staffing Solutions, Inc., which Troester cited with approval in its application of the de minimis doctrine. The central issue in Busk is the compensability of time spent in mandatory security screening. In its petition for certiorari, however, the employer did not raise the de minimis issue. Thus, it remains to be seen whether, or to what extent, the Supreme Court’s decision in Busk will address the de minimis doctrine.
Are You Disabled? Your Boss Needs to Know
New Regulations Require Federal Contractors to Ask Employees if They Have a Disability
By Lauren Weber March 18, 2014 8:21 p.m. ET
Nearly a quarter of the U.S. workforce will soon have to answer a personal question from the boss: Are you disabled?
U.S. regulations going into effect next week require for the first time that federal contractors—a group that includes Boeing Co. , Dell Inc. and AT&T Inc., among some 40,000 others—ask their employees if they have a disability.
Those that don’t employ a minimum of 7% disabled workers, or can’t prove they are taking steps to achieve that goal, could face penalties and, in the most extreme cases, the loss of their contracts, according to a government official. The target applies to contractors with 50 or more employees or more than $50,000 in government work.
The Labor Department issued the rules as part of an effort to reduce the high jobless rate among people with disabilities; a similar initiative calls for an 8% hiring target for military veterans. Government officials say the targets are “aspirational” and not rigid quotas.
Employees aren’t required to disclose their specific impairment.
Still, the rules have left contractors anxious about stepping on legal minefields. The Americans With Disabilities Act, or ADA, forbids companies to gather information on a worker’s disability status, since the disclosures could lead to discrimination. The Equal Employment Opportunity Commission has made an exception so that federal contractors can comply with the new rules.
Now, these companies face a dilemma. If not enough workers come forward to self-identify as disabled, company recruiters will need to retool their hiring practices to show they are trying to meet the targets. But employees may be uneasy disclosing health-related information to their bosses.
“The word disability means you’re not able to do something. People don’t want to be perceived that way,” said Joe Gavigan, a 37-year-old engineer at contractor GE Aviation. Mr. Gavigan was paralyzed in 1999 while a student at the U.S. Air Force Academy and later co-founded an employee resource group for individuals with disabilities at the General Electric Co. unit.
“You don’t want your boss to see you as being limited in your capability,” he said.
A 2008 amendment to the ADA expands the definition of disability. Alongside long-recognized impairments like blindness, the list now includes conditions such as cancer, diabetes, major depression, epilepsy and obsessive-compulsive disorder. Under that broader definition, many large companies may meet or surpass the 7% target already, said Daniel Yager, president of the HR Policy Association.
The number of disabled workers will be accurately captured only if employees are willing to raise their hands and be counted.
“A lot of employees don’t see those issues as being properly categorized as disabilities. They see it as something they’ve learned to live with,” said Chris Miller, vice president of employee relations at electric-power utility Southern Co. , an Atlanta-based contractor with 26,000 workers.
At Intuitive Research and Technology Corp. in Huntsville, Ala., an engineering firm with contracts from the Department of Defense, 19% of workers have disabilities, said Juanita Phillips, director of human resources. Intuitive recruits and sponsors classes and lecture series at the nearby Redstone Arsenal, a U.S. Army post. The partnership helps Intuitive meet two compliance goals at once by hiring veterans, some of whom have disabilities because of military service-related injuries.
Still, Ms. Phillips said, “We have people who are visibly handicapped that choose not to self-identify as such.”
The new guidelines were pushed in part by disability advocates, who say that previous government rules were ineffective at finding jobs for veterans and victims of illness or accident, even while technology has expanded the categories of jobs they are able to perform.
Individuals with disabilities had an unemployment rate of 14.3% in February, nearly twice that of the nondisabled population. They are more than three times less likely than other workers to be in the labor force at all, a figure that has hardly changed over the last five years, according to the Bureau of Labor Statistics.
But even some of the rule’s proponents admit that a groundswell of hiring from that pool is unlikely to occur if employers are able to prove that enough disabled workers are already on the payroll.
“Why have the target in there if it’s not encouraging the hiring of people with disabilities?” asked Mike Aitken, vice president of government affairs at the Society for Human Resource Management.
Employers are gearing up now to implement the survey. Pharmaceutical giant Merck & Co., subject to the new rules because of supply contracts with the Department of Veterans Affairs and other agencies, plans to use its internal newsletters to address the changes with its 29,000 U.S. workers.
“We’re putting our toe in the water on this and right now we’re vetting” the materials, said David Gonzales, chief diversity officer. “Our focus is to make sure it’s done in a very safe, private and confidential manner,” he said, declining to provide further details.
While acknowledging that collecting the data is no easy task, Labor Department officials say the challenge itself will make workplaces more accommodating.
“It is a cultural change,” said Patricia Shiu, director of the office that issued and oversees the rules. “Part of this is about creating an environment where people feel safe identifying that they are a person with a disability, that they won’t be retaliated against if they ask for reasonable accommodations.”
As a model, employers could look to their programs aimed at gays and lesbians, since sexual orientation, like most disabilities, isn’t apparent without some form of self-disclosure, said Jill Houghton, executive director of the U.S. Business Leadership Network, a nonprofit group that assists companies with hiring people with disabilities.
The government has also established language for the self-identification surveys, which includes examples of qualified disabilities that workers may not realize fall under the ADA, such as cancer and major depression.
The three options: “yes,” “no,” and “I don’t wish to answer.”
Write to Lauren Weber at lauren.weber@wsj.com
Summary of NLRB Decisions for Week of March 10 – 14, 2014
The Summary of NLRB Decisions is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB. Inquiries should be directed to the Office of Public Affairs at Publicinfo@nlrb.gov or 202‑273‑1991.
Summarized Board Decisions
International Association of Machinists and Aerospace Workers District Lodge 160, Local Lodge 289 (SSA Marine, Inc.) (19-CD-000502 and 000506; 360 NLRB No. 64) Puget Sound, WA, March 12, 2014.
Reversing the administrative law judge’s dismissal, a unanimous panel of the Board found that the Respondent, a union, violated the Act by maintaining an arbitration action against the Employer -– seeking monetary and/or contractual remedies, but disclaiming interest in the assignment of the disputed work -– after the Board’s earlier award of the work to employees represented by another union. Charges filed by SSA Marine, Inc. Administrative Law Judge William G. Kocol issued his decision on May 8, 2012. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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California Institute of Technology Jet Propulsion Laboratory (31-CA-030208, et al.; 360 NLRB No. 63) Pasadena, CA, March 12, 2014.
The Board unanimously affirmed the administrative law judge’s findings that the Respondent violated Section 8(a)(1) of the Act by discriminatorily issuing written warnings to five employees who used the Respondent’s email system to communicate with their coworkers about a new background check requirement while permitting employees to use its email system for nonwork-related activities. The Board also unanimously affirmed the administrative law judge’s findings that the Respondent did not violate Section 8(a)(1) of the Act by maintaining a rule requiring employees to “avoid any actions that could reasonably be expected to . . . discredit the [Respondent]” or disciplining employees pursuant to that rule. Charges filed by individuals. Administrative Law Judge William G. Kocol issued his decision on May 6, 2013. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Greater Omaha Packing Co., Inc. (17-CA-085735, et al.; 360 NLRB No. 62) Omaha, NE, March 12, 2014.
The Board adopted the judge’s finding that the Respondent violated Section 8(a)(1) by discharging three employees for organizing a work stoppage to protest certain terms and conditions of employment. The Board further found, contrary to the judge, that separate 8(a)(1) allegations concerning statements made during the meetings in which the Respondent discharged these employees were not duplicative of the discharge violations and thus warranted consideration on the merits. The Board found that rhetorical questions coercively conveying the Respondent’s displeasure with an employee’s protected activity violate Section 8(a)(1). Noting that the complaint did not specifically allege that the questioning at issue was generally coercive, the Board found that the violation was closely related to the complaint’s interrogation allegation and was fully litigated. Pergament United Sales, 296 NLRB 333 (1989), enfd. 920 F.2d 130 (2d Cir. 1990). The Board also found that the Respondent unlawfully created the impression that it was monitoring employees’ protected concerted activity when its managers told two employees that they were aware of the employees’ role in organizing the work stoppage. Member Johnson, noting that employees often worked in close proximity to their supervisors and openly discussed the walkout at the workplace, found that employees would not reasonably infer from the Respondent’s statements that knowledge or suspicion of the employees’ roles in protected activity resulted from managerial surveillance. Charges filed by Heartland Workers Center. Administrative Law Judge Arthur J. Amchan issued his decision on December 27, 2012. Chairman Pearce and Members Hirozawa and Johnson participated.
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Ralphs Grocery Company (31-CA-027160, et al.; 360 NLRB No. 65) Los Angeles, CA, March 13, 2014.
The Board found the Employer violated the Act by failing to provide unions with relevant, requested information concerning the contents of its internal audit of hiring practices during a lockout of its employees. Charges were filed by various Locals of the United Food and Commercial Workers Union. Administrative Law Judge William G. Kocol issued his decision on October 24, 2012. Chairman Pearce and Members Hirozawa and Johnson participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Ornc, LLC d/b/a Chestnut Park Rehabilitation and Nursing Center (03-RC-112695) Oneonta, NY, March 12, 2014. Order affirming the Regional Director’s decision to hold the petition in abeyance pending resolution of an unfair labor practice charge. Petitioner—United Food and Commercial Workers, District Union Local One. Members Miscimarra, Hirozawa, and Johnson participated.
First Transit, Inc. (19-RD-121241) Seattle, WA, March 12, 2014. Order denying the request for review of the Regional Director’s Decision and Direction of Election filed by the Union, Amalgamated Transit Union Local 587, AFL-CIO. In response to a decertification petition filed more than three years after a four-year contract took effect, the Union requested that the Board extend the contract bar rule to four years. The Board declined to do so. Petitioner—an Individual. Members Miscimarra, Hirozawa, and Johnson participated.
Pac Tell Group, Inc. d/b/a U.S. Fibers (10-RC-101166) Trenton, SC, March 13, 2014. The Board granted review of the Regional Director’s Supplemental Decision and Certification of Representative with respect to whether four putative supervisors possess the authority to assign and reward within the meaning of Sec. 2(11) of the Act. The Board denied review in all other respects. The Board stated that the question of whether the putative supervisors engaged in objectionable pro-union conduct remained before the Board, as resolution of that question may turn on whether the putative supervisors are statutory supervisors. Member Hirozawa would have denied the request for review in all respects. Petitioner—United Steel, Paper, and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 7898. Members Miscimarra, Hirozawa, and Johnson participated.
C Cases
Muccio, LLC & J.F. Kiely Construction Co. (22-CA-100624) Farmingdale, NJ, March 10, 2014. Order denying the petition to revoke a subpoena ad testificandum. The Board found that the subpoena sought information relevant to the matters under investigation and described with sufficient particularity the evidence sought. Further, the Board held that the petitioners failed to establish any other legal basis for revoking the subpoena. Charge filed by Local 469 International Brotherhood of Teamsters. Chairman Pearce and Members Miscimarra and Hirozawa participated.
Bluefield Hospital Company, LLC d/b/a Bluefield Regional Medical Center (10-CA-116246) Bluefield, WV, March 10, 2014. Order denying as untimely the petition filed by Bluefield Hospital Co., LLC to revoke a subpoena duces tecum because it was not filed within 5 days after the date of service of the subpoena. Moreover, even assuming that the petition was timely filed, the Board found it lacked merit. The Board found that the subpoena sought information relevant to the matters under investigation and described with sufficient particularity the evidence sought. Further, the Board held that the petitioner failed to establish any other legal basis for revoking the subpoena. Charge filed by National Nurses Organizing Committee. Chairman Pearce and Members Miscimarra and Hirozawa participated.
Vista Del Sol Healthcare (31-CA-115318) Los Angeles, CA, March 10, 2014. Order denying the petition filed by Vista Del Sol Healthcare to a revoke subpoena duces tecum. The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought. Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena. Charges filed by SEIU-ULTCW, Service Employees International Union, United Long Term Care Workers. Chairman Pearce and Members Miscimarra and Hirozawa participated.
Greenville Federal Financial Corporation d/b/a Greenville Federal (09-CA-075284, et al.) Greenville, OH, March 12, 2014. Order denying the General Counsel’s Motion for default judgment. The General Counsel sought default judgment on the basis that the Respondent had defaulted on the terms of an informal settlement agreement. The Board found that default judgment was not appropriate under the circumstances of this case because, based on the conflicting representations of the parties, genuine issues of material fact exist preventing a final determination as to whether the terms of the settlement agreement had been breached. Charge filed by an individual. Chairman Pearce, and Members Miscimarra and Hirozawa participated.
United States Postal Service (20-CA-111346) San Francisco, CA, March 12, 2014. Order denying the Respondent’ Motion to Dismiss the complaint for lack of jurisdiction. The Board found that it has jurisdiction over the United States Postal Service and this matter by virtue of Section 1209 of the Postal Reorganization Act, 39 U.S.C. Section 101 et seq. Charge filed by an Individual. Members Miscimarra, Hirozawa and Johnson participated.
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Appellate Court Decisions
Heartland Human Services, Board Case No. 14-CA-087886 (reported at 359 NLRB No. 76) (7th Cir. decided March 14, 2014)
In a published opinion, the Court enforced the Board’s order finding that the employer unlawfully repudiated its bargaining relationship with the union before the Board ruled on pending challenges and objections in a decertification election. It also held that it had no jurisdiction to review a Board decision directing a second election.
In 2011, the Board held a decertification election at the employer’s Illinois facility, and the initial tally of ballots revealed a vote of 19-18 in favor of the union. During the election, however, the union had challenged an employee’s eligibility to vote, which created a potentially determinative challenged ballot. (Under Board law, a tie vote in a decertification election results is a loss for the union because a majority of employees did not choose continued union representation.) The union therefore filed preventative objections to the employer’s election conduct to protect its interests in case the Board opened the ballot and the election resulted in a tie. Notwithstanding the pending post-election proceedings, the employer (perhaps presuming the challenged ballot would be reveal a vote against representation) announced that the union had lost the election and renounced its obligation to bargain. The union therefore filed unfair labor practice charges against the employer for withdrawing recognition. Ultimately, the Board did order the ballot counted—and it did create a tie vote, throwing the election against union representation. But the Board simultaneously found that the employer engaged in objectionable conduct and ordered a rerun election. Moreover, the Board concluded that the employer’s premature withdrawal of recognition violated Section 8(a)(5) of the Act.
Before the Seventh Circuit, the employer challenged both the Board’s decision to rerun the election and its finding that the premature withdrawal of recognition was unlawful. The Court first held that it did not have jurisdiction to review the Board’s decision to order a second election. As the Court explained, orders directing elections or certifying election results are not appealable final orders under the National Labor Relations Act. Rather, an employer that disagrees with the Board must wait for the Board to certify a union’s victory and then refuse to bargain; when the Board finds that refusal to bargain unlawful, the employer may challenge that finding in the courts of appeals and raise the purported infirmity of the underlying representation election as a defense. In a case like this one, the employer should have proceeded promptly to a second election (curing any unfair labor practices first), and then, if it lost, it could claim that “the first election had been fair and therefore the order refusing to decertify the union had been error and so [it] should not have been required to recognize the union and the court should not enforce the Board’s order that it do so.” But, if it won the second election fair and square, no judicial proceedings would be necessary. Thus, because the election order is not in itself appealable and only would become appealable after a union victory, the Court held that the employer “jumped the gun by refusing to recognize the union before the new election ordered by the Board was conducted and its results certified.”
As to the unfair labor practice, the Court agreed with the Board that the employer unlawfully withdrew recognition before the Board certified the results of the decertification election. Per the Court: “[R]emember that when it withdrew recognition, the potentially decisive ballot hadn’t been opened so [the employer] couldn’t be confident that it would win (by a tie vote); and this was apart from the other objections that the union raised to the conduct of the election.” Because an employer may not withdraw recognition absent actual proof of the loss majority status—and a potential loss does not constitute proof—the Court enforced the Board’s order.
The Court’s published opinion is available here.
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Administrative Law Judge Decisions
Northtown Mechanical, Inc. (14-CA-106453; JD-12-14) Smithville, MO. Administrative Law Judge Christine E. Dibble issued her decision on March 10, 2014. Charge filed by an Individual.
Sutter Health Central Valley Region, d/b/a Sutter Tracy Community Hospital (32-CA-098549; JD(SF)-07-14) San Francisco, CA. Administrative Law Judge Dickie Montemayor issued his decision on March 13, 2014. Charges filed by California Nurses Association/National Nurses United, CNA/NNU.