June 2006 Quick Clips

Six Month Employee Entitled To FMLA, June 30, 2006

Ronald Cobb worked for Byrd Trucking (“Byrd”), which had a contract with the United States Postal Service (“USPS”)to deliver mail between Philadelphia and Denver. In June 2003, Contract Transport, Inc. won the USPS contract for this Denver-Philadelphia route. To staff the route, Contract Transport hired drivers formerly employed by Byrd. In December 2003, Cobb’s doctor told him he needed gallbladder surgery. Cobb called his dispatchers and told them he needed time off. They instructed him to call Human Resources. Cobb called Human Resources and explained that he could not work. Human Resources sent him the paperwork for short term disability along with a memo terminating his employment.

Cobb filed a lawsuit alleging that Contract Transport violated the FMLA by terminating his employment. Contract Transport argued Cobb was not eligible for FMLA, because he had worked for Contract Transport for less than twelve months. However, Cobb argued that his three years of employment with Byrd counted towards his FMLA eligibility under the theory of successor liability. The district court held Cobb was not eligible for FMLA and declined to apply the doctrine of successor liability, because there was no continuity of ownership or control between Byrd and Contract Transport.

The Sixth Circuit Court of Appeals disagreed and held that Contract Transport was a “successor in interest” to Byrd within the meaning of the FMLA. The court explained that successor liability under the FMLA derives from labor law, not corporate law, and that labor cases apply an “equitable, policy driven approach to successor liability that has very little connection to the concept of successor liability in corporate law.” Cobb v. Contract Transport, Inc., – F.3d –, 2006 WL 1749628 (C.A.6 (Ky.), 2006).

Employers Need To Understand What Constitutes "Working Time" Under The FLSA! June 28, 2006

by Kevin J. Allis

Although it's a seemingly simple concept, many employers get tripped-up by failing to fully understand what constitutes "working time" under the Fair Labor Standards Act. A recent federal court ruling highlights this importance. In Twaddle v. RKE Trucking Company, an employer was found liable for two common forms of working time violations, (1) waiting time, and (2) break time.

In general, employees must be compensated for any time during which they are required to wait while on duty, or are preforming their principal activity. FLSA regulations state that the principal determination of whether time spent waiting is compensable is whether an employee was "engaged to wait" or "waiting to be engaged." If an employee may use the time effectively for his/her own purposes, then the employee is "waiting to be engaged," and the time is not compensable. However, if the time belongs to, and/or is controlled by the employer, then the employee is "engaged to wait," and thus the waiting time is an integral part of the job and compensable.

In Twaddle, RKE truckers were required to report to work each day at 6:00 a.m. Employees arriving late were disciplined. The reporting time requirement, and the ramifications should the employee not report on time, were both clearly articulated in the RKE handbook. In most cases, the truckers did not receive assignments until almost 9:00 a.m. Outside of the five minutes during which the truckers would start their trucks to circulate air pressure and fluids, the employees would drink coffee and socialize. None of the employees received compensation for any time between 6:00 a.m. and the time of assignment receipt, which was around 9:00 a.m.

The employees sought back pay and overtime for the waiting time. The employer argued that the time qualifies as a preliminary activity preformed prior to the workday that is not compensable. Additionally, the employer argued that the socializing engaged by the employees rendered the time not compensable.

The court held that any time controlled or required by the employer, that is pursued necessarily and primarily for the benefit of the employer, is compensable working time. Since the employees were required to report at 6:00 a.m., the time spent prior to job assignment, despite the socialization, could not be used for their own purposes. As a result, the waiting time was primarily for the employer's benefit, and therefore was compensable "working time."

Concerning the issue of break time, several of the employees claimed they were recorded as taking numerous 30-minute lunch breaks. Each testified that they typically worked all day without breaks and ate lunch while driving their trucks.

Meal periods may or may not be compensable under the FLSA, depending in large part on whether the employee is relieved from duty, and the amount of time the employer gives for the activity. FLSA regulations state that meal periods must be counted as hours worked unless all three of the following are met:

The meal period is at least 30 minutes, and
The employee is completely relieved from all duties during the period, and
The employee is free to leave the duty post.

The undisputed evidence displayed that the employees took time to eat while performing their primary duties. As a result, this time was deemed primarily for the benefit of the employer and thus compensable.

Horseplay – Just Another Job Duty, June 22, 2006

by Pete S. Saucier

The Supreme Court of Kansas reversed a long-standing principle that disallowed workers compensation benefits for employees injured by horseplay in the workforce. According to the court majority, the legal climate has changed. Employers must bear the burden of paying for injuries resulting from horseplay in the workplace. Another gem from the state that denies evolution ever occurred.

Cranky Transsexual Is Not Disabled, June 7, 2006

by Kelly C. Hoelzer

Susan Myers worked as a social worker for Cuyahoga County, Ohio from 1982 until her termination in 2000. At the time she was hired, Myers informed her employer that she was a transsexual, explaining the name change on her job application as a result of her sex change in the 1970's. Myers worked without incident for 16 years until she lost out on a promotion to supervisor to a female, Hispanic co-worker. For about two years after that, Myers relationship with her supervisor deteriorated, and Myers was disciplined repeatedly for making derogatory comments to co-workers and clients about Hispanics, including insulting jokes about Spanish- speaking people receiving benefits from the county. Myers was ultimately fired.

Myers sued the county for race, gender, and disability discrimination, claiming that the county did not accommodate her "adjustment disorder" and that she was fired because of her race and sex. In affirming summary judgment in favor of the county, the Sixth Circuit found that Myers' adjustment disorder was not a disability. Myers claimed that because of her "intermittent irritability" working with her Hispanic supervisor, she should be transferred to a different office as an accommodation. The court determined that Myers' irritability is "exactly the sort of minor interference with a major life activity" that does not meet the definition of a disability. The court also found that Myers could not overcome the county's legitimate reasons for firing her based on her unprofessional and insulting behavior towards her Hispanic co-workers and clients. Myers v. Cuyahoga County, No. 05-3370 (6th Cir. May 31, 2006).

Cops in Porn not Protected by First Amendment, June 1, 2006

by Darrell R. VanDeusen

So, you’re a sheriff’s deputy. You’re bored. You and your co-worker decide to film some porn, along with your wives. It’s all done outside of work, but you both get fired when the extracurricular activities are discovered. You file a lawsuit alleging that your First Amendment rights to protected speech were violated. You lose. Thaeter v. Palm Beach County Sheriff's Office, No. 03-13177 (11th Cir. 5/26/06).

The appellate court agreed that the deputies violated Palm Beach County's ethics rules and prohibitions against unauthorized work when they and their wives agreed to participate in an adult Web site. Appearing in pornographic videos and pictures is not an expressive speech on an issue of public concern, said the court. "[P]aid participation . . . in pornographic photographing and videotaping for Internet display for a fee 'does not qualify as matter of public concern under any view of the public concern test'." Oh well. Maybe the deputies can devote all their time to porn now that they no longer have to serve and protect.

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