Avoid Ageism in Promotional Practices

Posted on October 16, 2015 07:46 by Brenda Bannon

The Ninth Circuit recently reversed a summary judgment order issued in favor of the employer where during a promotional process, management had stated a preference to hire “younger, less experienced agents.” France v. Johnson, Dep’t of Homeland Security, __ F.3d __, 2015 WL 4604730 (9th Cir. 2015).

Fifty-four year old France applied for a new pilot program of operations agents that would receive a higher pay grade than the administrative agents. Four operations positions were created as a result of the pilot program and twenty-four eligible candidates applied. The applicants' ages ranged from 38 to 54 years.

The selection process consisted of ranking the applicants by their scores from a standardized agency test. Assistant Chief Patrol Agent (“ACPA”) Gilbert then invited twelve candidates for interviews in Washington, D.C. The panel of interviewers consisted of Chief Patrol Agent Gilbert and two other ACPAs. After the interviews, the panel selected six top-ranked candidates. Gilbert recommended four of the six to Chief Border Patrol Agent, who in turn recommended the same four candidates to the decision-maker -- the Deputy Commissioner.

France was the oldest agent to apply for the new program, and was rejected in favor of the four selected applicants who were 44, 45, 47, and 48 years old. France claimed that ACPA Gilbert had repeatedly approached him about taking retirement prior to this application process. Another agent testified that Gilbert had stated his preference to promote “young dynamic agents” to staff the new operations program.

Under the Age Discrimination in Employment Act (ADEA), this evidence alone was sufficient to overcome summary judgment and establish a prima facie case of discrimination for trial. The ADEA makes it unlawful for an employer to discriminate “because of [an] individual's age.” In reversing the district court’s order, the Ninth Circuit emphasized as follows:

When a plaintiff opposing summary judgment presents direct evidence of a discriminatory motive, we do not assess the direct evidence in the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

The court then underscored its view that the above-described evidence provided both direct evidence and circumstantial evidence of discriminatory intent such that the traditional burden-shifting analysis was conducted.

The court concluded that France had established that he was (1) at least forty years old, (2) qualified for the position for which an application was submitted, (3) denied the position, and (4) the promotion was given to a substantially younger person. In so doing, the court adopted the Seven Circuit’s test for “substantially younger person:”

The Seventh Circuit has held that an age difference of less than ten years creates a rebuttable presumption that the age difference is insubstantial. Hartley v. Wisc. Bell, 124 F.3d 887, 893 (7th Cir.1997).

According to the Ninth Circuit, France’s evidence rebutted this presumption and demonstrated a prima facie case that his age was a significant factor in the promotional process. In response to France’s evidence, the agency provided legitimate nondiscriminatory reasons for not promoting France that were related to his qualifications to lead. Overall, the court concluded that the evidence presented by France was sufficient to demonstrate an issue regarding whether the agency’s reasons were pretext for discrimination such that a trial on the merits was required.

The court found significant that ACPA Gilbert created the new program for operations agents, had expressed a desire to promote young agents, was involved in the promotional process, had recommend the four finalists to the Chief, and had approached France about retiring. Such evidence was sufficient to demonstrate a genuine issue of material fact as to whether the agency’s stated nondiscriminatory rationale was pretext for discrimination. Even though Gilbert was not the final decision-maker, his alleged discriminatory motive was enough to defeat the agency’s motion for summary judgment.

Employers are reminded to keep discussions of an employee’s age out of the workplace. In promotional situations, the France case serves as a reminder that the comments of employees involved in the process – especially influential management employees – can create ADEA liability for the employer. The France court emphasized in its analysis that a case will likely head for a trial on the merits if there is either direct or circumstantial evidence that an applicant’s age was a significant factor to the employer during the promotional process. Even an age differential of less than ten years can provide probative evidence to establish a prima facie case of discrimination.

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Over thirty-five years after Congress passed the Pregnancy Discrimination Act to amend Title VII of the Civil Rights Act, the United States Supreme Court decided that Employers must provide a light duty position to a pregnant worker as a medical accommodation if restricted by her doctor, and similar light duty positions are afforded to other non-pregnant employees with similar limitations on their ability or inability to work.1 The Court explained that the Pregnancy Discrimination Act is clear that Title VII's prohibition against sex discrimination applies to discrimination “based on pregnancy.” It also says that employers must treat “women affected by pregnancy ... the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. § 2000e(k). The Court decided the question of how this second provision applies in the context of an employer's policy that accommodates many, but not all, workers with nonpregnancy-related disabilities. Prior to the Young decision, courts frequently refused Title VII challenges to light duty policies that only applied to occupationally injured workers. A healthy pregnancy was not treated as a disability. 

Young involved a part-time UPS driver whose doctor provided her with a twenty-pound lifting restriction in the first several months of her pregnancy, and a ten-pound lifting restriction thereafter. Young’s job required her to be able to lift up to seventy pounds.  After her employer told her she could not work while under the lifting restriction, Young took a leave from work and eventually lost her medical coverage. She filed a Title VII and ADA lawsuit alleging that UPS discriminated against her due to sex and disability. Young pled a “disparate treatment” discrimination claim.  

UPS had bargained a union contract that provided for temporary light duty positions in the following three circumstances: 1) occupational injury; 2) ADA qualifying disability; and 3) temporary loss of DOT certification.  UPS argued that this light duty allocation was gender neutral and contractually binding.   

The federal district court granted UPS’ motion for summary judgment and the Fourth Circuit Court of Appeals affirmed.  The appellate court reasoned that the employer’s light duty allocation policy was gender-blind.  Because Young’s pregnancy was neither an occupational injury nor a disability, and it did not provide a legal obstacle such as a licensing issue to continue working, she was not comparable to the other workers who were provided temporary light duty positions. “Such a policy is at least facially a ‘neutral and legitimate business practice,’ and not evidence of UPS's discriminatory animus toward pregnant workers.2  The Fourth Circuit refused to treat temporary conditions caused by pregnancy more favorably for purposes of construing the PDA or providing claimed workplace benefits. 

The U.S. Supreme Court granted certiorari and reversed the Fourth Circuit.  The Court reasoned that although an employer may defend against such a claim by showing it had non-discriminatory reasons for treating pregnancy-related infirmities and other work-limiting conditions differently, a plaintiff can overcome that showing with evidence that the “employer’s policies impose a significant burden on pregnant workers, and that the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden.” Such evidence may defeat summary judgment and send the case for trial.3 In reviewing Young’s evidence and arguments, the Court applied the familiar McDonnell Douglas burden-shifting framework.  In doing so, the Court focused on accommodations provided to other employees who were similar in their ability or inability to work. 

In concluding its decision, the Court posed the following question: “why, when the employer accommodated so many, could it not accommodate pregnant women as well?”  The Court did not decide that UPS had intentionally discriminated against Young, but instead left a final determination of that question for the Fourth Circuit to make on remand, in light of the Court’s interpretation of the Pregnancy Discrimination Act. 

In light of the Supreme Court’s analysis in Young, employers should review their light duty or temporary alternative work policies. If a light duty policy provides disparate treatment to pregnant employees, it should be revised.  If an employer has available light duty positions, it may be prudent to make them available for both work-injured and non-work-injured temporarily disabled employees.  Accommodations provided to employees with injury-related lifting restrictions who are similarly situated in their ability or inability to work should correspondingly be provided to workers with pregnancy-related lifting restrictions who are similarly situated in their ability or inability to work.  Consulting with the employer’s attorney when these questions arise is recommended.


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On June 10, 2015, the New York City Council passed the Fair Chance Act (“the Act”), which makes it unlawful for employers to inquire about an applicant’s criminal background during the initial stages of the application process. The law joins other “ban the box” legislation across the nation in an attempt to ban the checkbox indicating criminal history on employment application forms. Mayor Bill de Blasio is expected to sign the bill any day, and the law will go into effect 120 days later.

The Act makes it a discriminatory practice for employers or employment agencies to inquire into an individual’s arrest or conviction record or perform a criminal background check before an employer has extended a conditional offer of employment. The Act also restricts an employer’s ability to issue any solicitation, advertisement, or publication that in any way expresses any form of limitation in employment based on a person’s arrest or criminal conviction history. Applicants are not required to respond to illegal inquiries and cannot be disqualified for not responding.

Importantly, the law does not prohibit employers from inquiring about criminal history or running background checks; it just delays the background check until an applicant can demonstrate his or her qualifications. Employers may still inform prospective employees that employment is contingent on their responses to a criminal history inquiry or criminal background check.

If the employer decides to take adverse action based on the inquiry or criminal background check, the employer must first take a number of steps:

1. The employer must provide a written copy of the inquiry or background check to the applicant, in a manner that will be established by the NYC Commission on Human Rights (the “Commission”).

2. The employer must perform a multi-factor analysis under Article 23-A of the New York State Corrections Law and then has to provide that analysis to the applicant in writing in a manner to be determined by the Commission, which shall include the “supporting documents that formed the basis for the adverse action” as well as the employer’s reasons for taking the adverse action.

3. After giving the applicant the inquiry and analysis in writing, the employer must allow the applicant a reasonable time to respond, which the Act states should be at least three business days. Furthermore, during that time, the position must remain open for the applicant.

The above provisions do not always apply. The law excludes certain positions that require criminal background checks by federal, state or local laws where a conviction prohibits employment, as well as police officers, peace officers, and law enforcement agencies (as those terms are defined by law). The Act also does not apply to certain positions that involve law enforcement, are susceptible to bribery or other corruption, or entail the provision of services to or safeguarding of individuals vulnerable to abuse, though if any employers in this category take adverse action based on criminal history, they must comply with item 2 above. The positions that qualify for this exemption will be enumerated by the commissioner of citywide administrative services, published as a commissioner’s calendar item, and listed on the website of the department of citywide administrative services.

The Act modifies the New York City Human Rights Law, Section 8-101 et seq. of the Administrative Code of the City of New York; thus, it does not apply to employers with less than four employees. However, for those it does cover, the damages available are among the broadest of all employment discrimination protection statutes and include the potential for back pay, front pay, unlimited compensatory damages, and unlimited punitive damages.

New York City employers are advised to take steps now to prepare for when the Act goes into effect. These steps may include, but are not limited to:

-reevaluating and revising employment application forms.

-updating handbook provisions and other policies and procedures as needed.

-examination of the Article 23-A factors, to fully understand the written analysis that must be performed in the event a candidate is rejected due to their criminal history. Employers may want to create a template for the analysis, to increase the likelihood that no factor will be overlooked in the analysis.

-providing training to all employees involved in recruiting, hiring and interviewing, to ensure they understand the parameters of the law and how, if at all, they must adjust their prior practice.


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Difficult Employees Are Not Disabled

Posted on January 20, 2015 04:30 by Alan R. Jampol

Under the Americans with Disabilities Act (ADA), an increasing number of conditions are considered to be a disability resulting in expanded employee protections. This in turn places responsibility on the employer to ensure disabled employees are accommodated as necessary and that no ADA violations occur. Employers must act with caution or risk legal consequences and liability for failing to properly address a disability. An area that has frequently caused problems for employers are difficult employees who may claim psychological disorders. Is a difficult employee who has been diagnosed with ADHD considered disabled per the ADA? This was the issue recently addressed by the U.S. Court of Appeals for the Ninth Circuit in Weaving v. City of Hillsboro (2014) 763 Fed.3d 1106.

In Weaving, Mr. Weaving was a police officer employed by the City of Hillsboro. Since his hiring, he’d had a difficult time getting along with coworkers and supervisors. Coworkers described Weaving as “tyrannical, unapproachable, non-communicative, belittling, demeaning, threatening, intimidating, arrogant and vindictive.” Following a grievance filed by a coworker, Weaving was placed on paid leave and an investigation took place. In regards to his conduct, the investigating officer wrote: [Weaving] has demonstrated time and again unacceptable interpersonal communication that suggests he does not possess adequate emotional intelligence to successfully work in a team environment, much less lead a team of police officers.”

At trial, Weaving presented the defense that he had been diagnosed at the age of six with “hyperkinetic activity” (known today as ADHD) which continued in his adult life and created interpersonal problems. Despite his success at work, it was frequently noted in reviews that others found Weaving to be arrogant and rude. Following the grievance being filed against him, Weaving claims he realized his interpersonal problems may have been due to his ADHD and he sought professional help. His psychiatrist confirmed he suffered from ADHD. He thereafter officially notified the police department, stating that he looked forward “to receiving the positive support [that employees] who are afflicted with a mental disorder or an addiction, receive,” and requested “all reasonable accommodations,” including reinstatement to his position as sergeant. The police department conducted an independent medical evaluation, which found Weaving fit for duty. However, it nonetheless terminated his employment.

Weaving sued the City of Hillsboro alleging disability due to his ADHD under the ADA and that the City fired him due to his disability. The district court ruled in Weaving’s favor; the City appealed the decision and the Ninth Circuit issued a reversal. In so ruling, the Court found that Weaving could not meet the ADA’s relaxed standard for determining whether a plaintiff is substantially limited in engaging in a major life activity and stated “the record does not contain substantial evidence showing that Weaving was limited in his ability to work compared to ‘most people in the general population.’”

In rejecting Weaving’s argument for disability, the Court contrasted his lacking interpersonal skills with other situations in which it found disability, such as panic attacks, and communicative paralysis. The Court stated that despite Weaving’s ADHD, which may limit his ability to get along with coworkers, it was not the same as a “substantial limitation on the ability to interact with others…To hold otherwise would be to expose to potential ADA liability employers who take adverse employment actions against ill-tempered employees who create a hostile workplace environment for their colleagues.”

The Court’s ruling here is good news for employers, who previously may have felt their hands were tied with difficult employees who claimed disability due to ADHD. The decision demonstrates that the Courts still require employees to meet the threshold for proving a disability exists and are willing to distinguish cases of disability from those of difficult employees who do not need accommodation. While this may be a relief to employers, this does not mean employees with ADHD are never entitled to accommodation, or that it will never rise to the level of a disability. 

This blog was originally posted to the Jampol Zimet Insurance Defense Blog on January 13, 2015. Click to read the original entry. 

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The U.S. Supreme Court has granted review of Integrity Staffing Solutions v. Busk to determine whether time spent by employees in a security check line constitutes work and is therefore compensable. The case was brought by employees of Integrity Staffing Solutions, a temporary employee provider, who provided employees to Amazon.

In Integrity, temporary workers were assigned to work for Amazon at two of its Nevada warehouses. According to the class action plaintiffs, they regularly spent approximately 20-25 minutes at the end of each day in security checks when leaving work, waiting to be searched, empty their pockets, and pass through metal detectors. They claimed they were not compensated for this time and were due overtime pay. The workers argue that Amazon required them to clear security checks each day, as necessary to reduce employee theft from the warehouses. The plaintiffs went on to note that the Title 29 of the Code of Federal Regulations Part 785 provides, “[t]he workweek ordinarily includes all time during which an employee is necessarily required to be on the employer’s premises, on duty, or at a prescribed workplace.” A workday is further defined as, “[t]he period between the time on any particular day when such employee commences his/her principal activity and the time on that day at which he/she ceases such principal activity or activities. The workday may therefore be longer than the employees scheduled shift hours, tour of duty, or production line time.”

On appeal, the Ninth Circuit noted that the FLSA, as amended by the Portal-to-Portal Act of 1947, “generally precludes compensation for activities that are ‘preliminary’ or ‘postliminary’ to the ‘principal activity or activities’ that the employee ‘is employed to perform.’” However, it also noted that “preliminary and postliminary activities are still compensable” if they are “integral and indispensable” to an employee’s principal activities. For example, in Steiner v. Mitchell, (1956)350 U.S. 247, 332, changing clothes and showering were “integral and indispensable” to the production of batteries. It has been held that to be “integral and indispensable,” an activity must be (1) “necessary to the principal work performed” and (2) “done for the benefit of the employer.” (Alvarez v. IBP, Inc. (2003) 339 Fed.3d 894, 902–03.)

In finding the employees entitled to compensation, the Ninth Circuit held that the security clearances were necessary to the “employee’s primary work as warehouse employees and done for Integrity’s benefit.

The Supreme Court, in issuing a decision on this issue, will clear up much confusion, as the Ninth Circuit’s decision is in direct conflict with other circuit rulings. In Gorman v. Consolidated Edison Corp. (2007) 488 Fed.3d 586, the Second Circuit ruled that time spent in a security screening by employees was not compensable. Furthermore, the Eleventh Circuit issued a similar ruling in Bonilla v. Baker Concrete Construction (2007) 487 Fed.3d 1340.

The outcome of this case has the potential to reach thousands of workers who have worked for Amazon and have been subject to the security checks. Amazon employs approximately 38,000 temporary employees at its warehouses. It is estimated that if the Supreme Court affirms the Ninth Circuit ruling, damages will be in the millions.

Employers should be aware of the standards applied by the courts to determine whether their employees are entitled to compensation for activities required by the employer. Employers requiring their employees to spend time in security checks, change clothes, or otherwise take time to prepare for work should seek advice of counsel to determine whether such time is compensable. If you are an employer unsure about whether your employees must be compensed for time spent in security checks or preparing for work, please contact our attorneys at Jampol Zimet, LLP located at 800 Wilshire Boulevard, Los Angeles, CA 90017, or at (213) 689-8500, for a consultation to ensure your interests are protected before it is too late.

This blog was first posted to Jampol Zimet’s Insurance Defense Blog. Click here to read the original entry. 

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At the same time NFL Commissioner Roger Goodell faces tough questions about Ray Rice, a new domestic violence law went into effect in Massachusetts.  Employers with 50 or more employees must now provide employees who are victims of domestic violence up to 15 days of leave in any 12-month period.  Governor Deval Patrick signed the law on August 8, 2014 and it became effective immediately so employers should not delay in taking steps to come into compliance.

Leave is also allowed to employees if a family member is a victim of abusive behavior, including spouses, parents, step-parents, children, step-children, siblings, grandparents, and grandchildren.  The definition of family member also includes those in a “substantive” dating or engagement relationship and who live together, persons having a child in common regardless of whether they have ever married or lived together, or a guardian.

The law applies to all employees regardless of how long they have been at the company or how many hours they work.  Leave may be taken for any of the following reasons:

To seek or obtain medical attention, counseling, victim services, or legal assistance;

To obtain a protective order from a court;

To appear in court or before a grand jury;

To meet with a district attorney or other law enforcement official;

To attend child custody proceedings;

To secure housing; OR

To address other issues directly related to the abusive behavior against the employee or his or her family member.

Employers may require employees to provide advance notice for leave unless there is a threat of imminent danger to the health or safety of the employee or a covered family member. If advance notice is not possible, employees must notify the employer within three workdays that the leave was taken under the law.  Employees must exhaust accrued paid leave before taking any unpaid leave unless the employer waives this requirement.

The law allows employers to require employees to provide documentation supporting the leave within a reasonable time of the request.  An employee satisfies this documentation requirement by providing any one of the following:

A protective order, order of equitable relief or other documentation issued by a court;

A document under the letterhead of the court, provider or public agency which the employee attended for the purposes of acquiring assistance as it relates to the abusive behavior;

A police report or statement of a victim or witness provided to police;

Documentation that the perpetrator of the abusive behavior against the employee or family member of the employee has:  admitted to sufficient facts to support a finding of guilt of abusive behavior; or has been convicted of, or has been adjudicated a juvenile delinquent by reason of, any offense constituting abusive behavior and which is related to the abusive behavior that necessitated the leave under this section;

Medical documentation of treatment as a result of the abusive behavior;

A sworn statement, signed under the penalties of perjury, provided by a counselor, social worker, health care worker, member of the clergy, shelter worker, legal advocate or other professional who has assisted the employee or the employee’s family member in addressing the effects of the abusive behavior;

A sworn statement, signed under the penalties of perjury, from the employee attesting that the employee has been the victim of abusive behavior or is the family member of a victim of abusive behavior.

Employers may not retaliate or interfere with an employee’s use of such leave, and the Massachusetts Attorney General will enforce the law.  It should be noted that this new law adds to the Victim/Witness of Crime law which provides leave to employees who have been a victim of a crime or have been subpoenaed to attend court as a witness.

All covered employers must notify employees of their rights and responsibilities under the law.  With an immediate effective date, employers should review all handbooks and policies and amend them accordingly.  Supervisors and managers should also be trained on how to handle such leave requests.

This blog was posted on September 17 on Employment Law Business Guide. Click here to read the original entry. 

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Pregnancy Discrimination Act:

Young v. UPS. The issue in Young is " Whether, and in what circumstances, the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”

In Dart Cherokee Basin Operating Company, LLC v. Owens, the issue is "Whether a defendant seeking removal to federal court is required to include evidence supporting federal jurisdiction in the notice of removal, or whether it is enough to allege the required “short and plain statement of the grounds for removal.”

Appelability of the dismissal of an action consolidated with other suits:
In Gelboim v. Bank of America Corporation, the issue is "Whether and in what circumstances the dismissal of an action that has been consolidated with other suits is immediately appealable." 

In Integrity Staffing Solutions v. Busk, the issue is " Whether time spent in security screenings is compensable under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act."

Labor Law:
In M&G Polymers USA, LLC v. Tackett, the issues are: "(1) Whether, when construing collective bargaining agreements in Labor Management Relations Act (LMRA) cases, courts should presume that silence concerning the duration of retiree health-care benefits means the parties intended those benefits to vest (and therefore continue indefinitely), as the Sixth Circuit holds; or should require a clear statement that health-care benefits are intended to survive the termination of the collective bargaining agreement, as the Third Circuit holds; or should require at least some language in the agreement that can reasonably support an interpretation that health-care benefits should continue indefinitely, as the Second and Seventh Circuits hold."

Judicial enforcement of the EEOC's mandatory duty to conciliate:
In Mach Mining v. EEOC, the issue is: "Whether and to what extent a court may enforce the Equal Employment Opportunity Commission's mandatory duty to conciliate discrimination claims before filing suit."

Juror Dishonesty:
In Warger v. Shauers, the issue is "Whether Federal Rule of Evidence 606(b) permits a party moving for a new trial based on juror dishonesty during voir dire to introduce juror testimony about statements made during deliberations that tend to show the alleged dishonesty."

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Today, in Lane v. Franks, SCOTUS held in a unanimous opinion that “Lane’s sworn testimony outside the scope of his ordinary job duties is entitled to First Amendment protection.”  And “the individual defendant has qualified immunity from this suit because prior precedent wasn't clear enough that you could not fire an employee for sworn testimony.” http://www.supremecourt.gov/opinions/13pdf/13-483_9o6b.pdf Justice Sotomayor delivered the opinion for the Court and Justice Thomas filed a concurring opinion joined by Scalia and Alito. - Click here to see more. 

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DRI Online Communities

Posted on May 22, 2014 02:28 by Admin

On May 21, DRI rolled out the new committee online communities.  The new communities will enhance DRI’s web presence and will allow committee members to connect with each other and share information more easily.  Each community will have a discussion list, which will replace the current list serve, as well as a document library, blog, and calendar.  Committees will also be able to post announcements about their seminars and publications, and promote open positions and volunteer opportunities.  All posts are sent to members as a daily digest from the communities, unless a member changes his or her settings to real-time delivery.   The communities are designed to be the hub for all committee activity. 

There are six substantive law committees serving as the pilot group: Commercial Litigation, Employment and Labor Law, Product Liability, Women in the Law, Workers’ Compensation, and Young Lawyers.  Additional committee communities will go live over the course of the year.

Members can access the communities through the DRI website, www.dri.org  (there is a new link in the top blue navigation bar).  Committee members are automatically members of the respective community and are being notified via email. Members should call (312) 695-6221 if they are having trouble logging in to the site.

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If you don’t know, it could cost you.  In the past few years, federal courts have seen an influx in “donning and doffing” lawsuits.  These suits reflect a general discontent of employees that are not compensated for the time spent dressing in work-related attire while on employer premises. Sometimes employers are required to pay and sometimes they aren’t, but it is best to be aware of recent developments to avoid being caught with your pants down.

Consider Your Collective Bargaining Agreement & the FLSA

On January 27, 2014, the Supreme Court handed down its opinion for Sandifer v. United States Steel Corp.  The Supreme Court granted cert on this case to determine whether an employer must pay employees for their time spent putting on (donning) and taking off (doffing) their work-related garments and protective gear under the Fair Labor Standards Act (FLSA).  

The FLSA sets out the circumstances under which an employer must compensate an employee.  Pertinent to “donning and doffing”, section 790.8(c) of the FLSA requires that an employer compensate an employee for the time they take to put on and take off safety equipment. However, section 203(o) creates an exception, which indicates that any time spent changing clothes or washing at the beginning and end of the workday shall be excluded from compensated time if the collective bargaining agreement in place excludes compensation for these activities.  In Sandifer v. United States Steel Corp., 800 steelworkers from Indiana have challenged the definition of clothes in the applicable collective bargaining agreement in line with section 203(o) of the FLSA.  

When United States Steel Corp. steelworkers arrive at the plant each morning, they report to their respective locker rooms and dress in protective gear that is stored at the facility.  A steelworker wears fire retardant jackets, fire retardant pants, steel toed boots, protective goggles, ear plugs, hard hats, a flame retardant or aluminized snood (a head covering to protect the head and neck), a flame retardant wristlet that covers the forearms, and flame retardant spats that cover the foot and shin area.  If these items fall outside of the definition of “clothes,” perhaps qualified as “protective gear,” then Sandifer and the other steelworkers must be compensated for the time spent changing.

The amount of time that it takes each worker to put on (don) and take off (doff) each protective item can certainly accumulate each day. Sandifer and the other steelworkers allege that they are owed back overtime pay because the amount of time spent donning and doffing their protective gear would qualify as overtime beyond the normal 40 hour work week.

The Supreme Court determined that all items worn by the steelworkers, other than protective goggles and ear plugs, qualified as “clothes” under the ordinary meaning of the word, defined as “items that are both designed and used to cover the body and are commonly regarded as articles of dress”.  Because these items are deemed “clothes," employers and employees are authorized to decide whether that time is compensable and memorialize the decision in a collective bargaining agreement.

The Supreme Court’s determination of Sandifer can impact your business if you have established a collective bargaining agreement that qualifies the donning and doffing of safety equipment or protective gear as “changing clothes.”  It is important to review the types of work-related garments and gear your employees wear.  Are the items commonly regarded as articles of dress?  Or are some of the items more similar in function to ear plugs and safety glasses?  Certainly no one would question whether jeans, a tee shirt, a suit, or a blouse were clothes.  But the Supreme Court’s decision requires that you consider each element of your employees’ uniform in a new light.  It may be necessary that you reconsider whether certain items be donned during work hours in order to prevent the risk of future litigation.  The Sara Lee Corporation failed to address these implications in time to avoid litigation.

The Portal to Portal Act: Donning & Doffing May Be a Principal Activity

In 1947, the Portal-to-Portal Act was enacted as an amendment to the FLSA in order to clarify the type of time that classifies as work time.  Section 254(a)(2) provides that no employer shall be liable for failure to pay wages or overtime for activities that are preliminary or postliminary to principal activities, which occur before the workday starts or after the workday ends. Thus, the pertinent legal question is whether an activity is a principal activity.  

In Duran v. Sara Lee Corp., a group of Sara Lee factory workers in Zeeland, Michigan, brought suit to demand back overtime pay for the time spent donning and doffing their protective gear, including ear protection, safety glasses, steel-toed boots, and bump caps, while on-site.  These workers argued that putting on and taking off this protective gear qualifies as a “principal activity” of their job.  In March, a federal jury determined that the Sara Lee factory workers were engaging in “principal activities” of their jobs while donning and doffing their protective gear because it is one of the many tasks that must be completed on the job daily.  The jury also determined that these factory workers are owed back overtime pay for these activities.  In addition, the jury determined that Sara Lee’s actions were willful, which allows for greater recovery of damages.  Although it is certain this verdict will be appealed, the Michigan jury is sending a message to employers to review their contracts and reconsider their donning and doffing policies.


Savvy business owners should carve out time to review the articles of clothing and protective gear worn by their employees.  Consider the purpose and function of each article. If there is a chance that an item is more likely to be qualified as protective gear rather than clothes, it is vital to revisit your current collective bargaining agreement and employment manual with respect to the donning and doffing of work-related articles.  The time spent examining your current policies is well worth the benefit of avoiding or minimizing future litigation whether your employees wear clothes to work or not.

This article does not constitute legal advice, is not applicable to factual situations, and does not establish an attorney-client relationship.

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