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Archive for the ‘Fair Labor Standards Act’ Category

Is Time for Bag Searches Compensable in California?

Thursday, December 14th, 2017

In the new year the California Supreme Court will address the question of whether employee bag searches should be compensated under California law. The question recently certified by the Ninth Circuit Court of Appeals to the California Supreme Court in Frlekin v. Apple, Inc. states:

“Is time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages or bags voluntarily brought to work purely for personal convenience by employees compensable as “hours worked” within the meaning of California Industrial Welfare Commission Wage Order No. 7”?

Not all employers have bag inspection policies. However, those that do retain the right to inspect large purses, backpacks, and other personal bags when an employee leaves the premises for a meal or rest break. In some cases, there might be no wait and a search could take 30 seconds; in others, it might last several minutes, reducing the break to a much shorter duration than the law requires. For example, a 30-minute meal period could be cut in half and a 10-minute rest break could be effectively eliminated. This can deter employees from leaving to purchase and enjoy a meal or otherwise spend their breaks as they wish. California law requires employees to be fully relieved of their duties on all breaks with few exceptions.

Bag inspection policies exist to enhance loss prevention. Despite employers’ legitimate concerns about employee theft, there are less restrictive alternatives that better protect employees’ rights. For example, employers can arrange for employees to clock out after they are searched instead of before they wait for and undergo searches. If the California Supreme Court answers the question above in the affirmative, it will send a strong message that employers can no longer get something for free—that is, they can no longer expect employees to do something off the clock for the sole benefit of the employer.

Even if bag searches do infringe on workers’ rights relating to meal and rest periods in California, employees must still overcome the hurdle of the de minimis doctrine. This federal doctrine holds that, where business considerations make it impractical to precisely record time, such “de minimis” time (e.g. a few seconds or minutes) is not compensable. Because California law is more protective of employees’ rights and specifies meal and rest period requirements, the Ninth Circuit has certified this question to the California Supreme Court in Troester v. Starbucks Corporation:

“Does the federal Fair Labor Standards Act de minimis doctrine, as stated in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946) and Lindow v. United States, 738 F.2d 1057, 1063 (9th Cir. 1984), apply to claims for unpaid wages under the California Labor Code sections 510, 1194, and 1197?”

If the Court holds that bag searches are compensable and the de minimis doctrine does not apply to state claims, it would be a victory for California employees. See Apple defeats U.S. Class Action Lawsuit over bag searches. They would be entitled to wages for all time spent waiting for and undergoing bag inspections, both during meal and rest periods and at the end of their shifts.

About the Author: Scott Edward Cole founded the predecessor firm to Scott Cole & Associates in 1992 and has devoted himself, his team, and the firm’s resources to championing employment and consumer law issues ever since. Mr. Cole is an extremely well-respected leader in the field of employment class action litigation, has authored numerous scholarly publications and has been called upon to serve as a regular speaker at public seminars on issues surrounding employment laws and class action procedures.

Federal Judge: Home Care Workers Entitled to Minimum Wage and Overtime

Thursday, August 27th, 2015

Kenneth QuinnellIn a unanimous decision, a federal appeals court reversed a district court and ruled that the U.S. Department of Labor was within its authority to issue a rule change meant to provide home care workers with a minimum wage and overtime protections. The case is now remanded to the district court.

In 2013, the Labor Department announced rule changes under the Fair Labor Standards Act (FLSA) that would guarantee that workers who care for the elderly and people with disabilities in their homes would have the same labor protections as other workers. But U.S. District Judge Richard Leon halted the change saying that Labor didn’t have the authority to make the rule change. On appeal, the higher court disagreed. U.S. Circuit Judge Sri Srinivasan wrote for the court: “The Department’s decision to extend the FLSA’s protections to those employees is grounded in a reasonable interpretation of the statute and is neither arbitrary nor capricious.”

Christine L. Owens, executive director of the National Employment Law Project, said she assumes that Labor now has the authority to implement the changes: “States would be well advised, and employers would be well advised, to take this decision as final and begin acting.”

As Think Progress reports:

This workforce, which is 90 percent female and half people of color, hasn’t been eligible for minimum wage or overtime pay since 1974, when they fell under the companionship exemption given the idea that they merely provided company to their clients. So while their average wages come to $9.61 an hournearly a third of those surveyed in New York City made less than $15,000 a year and nearly 40 percent of the entire workforce has to rely on public benefits to get by….

Home care workers are in a huge and rapidly expanding industry. Nearly 2.5 million people are employed in this line of work, making it one of the largest occupations, and the number of jobs is expected to grow 70 percent by 2020. Even so, demand is expected to outpace supply over the next decade as the country ages, something that could be eased with higher pay and benefits.

This post originally appeared in AFL-CIO on August 26, 2015. Reprinted with permission.

About the Author: Kenneth Quinnell is a long-time blogger, campaign staffer and political activist.  Before joining the AFL-CIO in 2012, he worked as labor reporter for the blog Crooks and Liars.  Previous experience includes Communications Director for the Darcy Burner for Congress Campaign and New Media Director for the Kendrick Meek for Senate Campaign, founding and serving as the primary author for the influential state blog Florida Progressive Coalition and more than 10 years as a college instructor teaching political science and American History.  His writings have also appeared on Daily Kos, Alternet, the Guardian Online, Media Matters for America, Think Progress, Campaign for America’s Future and elsewhere.

2015 Will Usher In Increased FLSA Liability for Home Health Care Agencies

Wednesday, September 25th, 2013

Patrick J. FazziniOn Tuesday, September 17, 2013, the U.S. Department of Labor (DOL) issued a final rule extending the Fair Labor Standard Act’s (FLSA) minimum wage and overtime protections to an estimated two million home health care workers. Scheduled to take effect on January 1, 2015, this amendment narrows the FLSA’s “companionship” exemption.

In 1974, Congress extended the FLSA’s wage protection provisions to virtually all domestic service workers; however, it provided a limited exception for workers who provided for the care, fellowship, and protection of persons who, because of advanced age or physical or mental infirmity, could not care for themselves. These “companionship” services, which are widely and popularly used for the in-home care of loved ones, most often include assistance with household work such as meal preparation, bed making, clothes washing and other similar personal services.

U.S. Secretary of Labor Thomas E. Perez recently summarized these types of services, stating, “Many American families rely on the vital services provided by direct care workers. Because of their hard work, countless Americans are able to live independently, go to work and participate more fully in their communities.”

The DOL points out that the home health care industry has grown significantly over the last 35 years and that the in-home care services provided to individuals today are markedly different from when the companionship services regulations were first promulgated. As a result, and in an effort to extend the FLSA’s protection to this ever-growing in-home workforce, the final rule removes the ability of third-party employers to avail themselves of the companionship exemption. However, it does permit the individual, family or household employer directly employing the worker to continue to take advantage of the exemption—so long as the employee still primarily provides the fellowship and protection contemplated by the exemption. Further, and among other amendments, the final rule explains that direct care workers who perform medically-related services for which training typically is a prerequisite, are not companionship workers and therefore are entitled to the minimum wage and overtime pay.

As a result of the final rule, many third-party employers—specifically home health care agencies—should be on the lookout for potential FLSA liability stemming from improper exemption classification and compensation issues. Why the delayed start date? The DOL indicates that the January 1, 2015 start date is intended to give employers “time to adjust” and as such, employers should begin conducting internal FLSA audits to ensure their continued legal compliance when the transition takes effect.

This article was originally printed on Ogletree Deakins’ Wage and Hour Blog on September 20, 2013.  Reprinted with permission.

About the Author: Patrick Fazzini is an associate in the Pittsburgh office of Ogletree Deakins.

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