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US Supreme Court Defines “Clothes” and “Changing Clothes” for Purposes of the FLSA in Unionized Workplaces

Sandifer v. United States Steel Corp.

Decision: The US Supreme Court unanimously clarified the rules for “donning and doffing” claims in unionized workplaces under the Fair Labor Standards Act (“FLSA”). At issue in the case was FLSA Section 203(o), which exempts employers from having to compensate employees for off-the-clock time spent changing clothes at the beginning or end of each workday, if a collective bargaining agreement so provides.

In Sandifer, the plaintiffs alleged that the time they spent changing into and out of safety equipment, including fire-retardant jackets and pants, steel-toed boots, goggles, ear plugs, hard hats, and a flame-retardant head cover and wristlet, was compensable under Section 203(o), despite the existence of a collective bargaining agreement that provided that such time was not compensable, because that equipment did not constitute “clothes” under the FLSA. The district court held that the time was not compensable, and the Seventh Circuit affirmed.

The Supreme Court largely agreed with the district court and Seventh Circuit Court of Appeals in finding that most of the equipment at issue was “clothing” under Section 203(o) and that the remainder of the employees’ time spent donning equipment rather than clothing was de minimis, so the time was not compensable. The Supreme Court held that “clothes” for FLSA purposes means “items that are both designed and used to cover the body and are commonly regarded as articles of dress.” It further held that “changing,” for FLSA purposes, includes all time spent altering dress, whether or not protective clothes are a substitute for or supplemental to a worker’s ordinary dress. Under these definitions, according to the Court, all items worn by the petitioners constituted “clothes,” except safety glasses, ear plugs and respirators, but, when the vast majority of time is spent donning and doffing clothes, the entire period qualifies as time spent “changing clothes.”

Impact: The Court’s decision provides unionized employers with guidance about how to categorize donning and doffing time under the FLSA. If a piece of work-related equipment is akin to a piece of clothing, it is likely to be regarded as “clothes” under the statute. Similarly, if employees spend the “vast majority” of time before- and after-work donning and doffing these clothing items, employers should be able to rely on their current collective bargaining agreements that exempt the time from being compensable.

Sixth Circuit Finds That an Employee-Requested Transfer Can Be an Adverse Employment Action

Deleon et al. v. Kalamazoo County Road Commission et al.

Decision: The Sixth Circuit Court of Appeals recently held that transferring an employee can constitute an adverse employment action, even if the transfer does not involve a demotion or pay decrease and regardless of whether the employee had requested the transfer, as long as the work environment was “objectively intolerable.” The plaintiff, Robert Deleon, was a Kalamazoo County Road Commission employee who, in 2008, applied for a transfer to the Equipment and Facilities Superintendent position. The job description for that position described the working conditions as “primarily in office … and in garage where there is exposure to loud noises and diesel fumes.” Deleon requested that, if he received the position, the Commission give him a $10,000 raise. Deleon did not receive the position initially, but, after two other candidates declined the employer’s offer to work in the position, the Commission involuntarily transferred Deleon into it as part of a larger restructuring but did not raise his pay.

Deleon claimed that he was exposed to toxic and hazardous diesel fumes on a daily basis in his new position, had to wipe soot out his office on a weekly basis, contracted bronchitis and had frequent sinus headaches. Due to these conditions, he was hospitalized for five days and then took an eight-month leave of absence. When he was cleared to return to work, the Commission had terminated his employment because he had exhausted all of his available leave.

Deleon alleged race and age discrimination, both of which required him to show that he suffered an adverse employment action. The Sixth Circuit found that the transfer was an adverse employment action, even though there was no demotion or pay decrease involved, because the particular circumstances gave rise to “some level of objective intolerability.” The court further held that Deleon’s initial request to be placed in the position did not preclude a finding that the transfer was an adverse employment action; rather, that the test was whether the “conditions of the transfer” would have been “objectively intolerable to a reasonable person.”

Impact: The Sixth Circuit’s holding unfortunately leaves employers in a situation where they could face liability not only when they refuse to transfer an employee but also when they do actually transfer an employee. Employers, at least in the Sixth Circuit (which covers Kentucky, Michigan, Ohio and Tennessee), should ensure that they objectively evaluate all employee transfer requests—voluntary and involuntary—and consult counsel in any situation where the particular circumstances might give rise to a claim that the employee was subjected to an adverse employment action.

EEOC Settles First Systemic Genetic Information Non-Discrimination Act Lawsuit

U.S. Equal Employment Opportunity Commission v. Founders Pavilion Inc.

Decision: The Equal Employment Opportunity Commission (“EEOC”) settled its first systemic Genetic Information Non-Discrimination Act (“GINA”) lawsuit. The case involved a class of workers from whom Founders Pavilion Inc. allegedly sought genetic information by asking for family medical history as part of pre-employment, return-to-work and annual medical exams of its employees. The Founders Pavilion case is the EEOC’s third GINA lawsuit and the first systemic lawsuit. Each class member will receive $800.

Impact: This case serves as an important reminder to employers to ensure that their employment forms do not request information that qualifies as genetic information under GINA. GINA prohibits employers from using genetic information in making employment decisions, restricts employers from requesting, requiring or purchasing genetic information except in very narrow circumstances and limits the disclosure of employee genetic information. It also prohibits discrimination on the basis of, or harassment because of, an individual’s genetic information. The law defines “genetic information” to include information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about the manifestation of a disease or disorder in an individual’s family members, including family medical history.

Seventh Circuit Approves FMLA Leave for Trip to Las Vegas with Ill Parent

Ballard v. Chicago Park District

Decision: The Seventh Circuit Court of Appeals ruled that the Family Medical Leave Act (“FMLA”) entitles qualified employees to take up to 12 weeks of unpaid leave in order to provide physical and psychological care for a seriously ill family remember, regardless of the geographic area where the care is provided. Beverly Ballard, a municipal park manager for the Chicago Park District, was the primary caregiver for her terminally ill mother. After securing funding from a nonprofit that facilitates end-of-life trips, Ballard requested unpaid leave from her job so that she could accompany her mother on the trip to Las Vegas. The Park District denied the request and later fired Ballard for her unauthorized absence resulting from the trip. Ballard sued for violation of the FMLA. The district court denied the Park District’s motion for summary judgment, holding that the geographical location where care for a seriously ill family member takes place is not relevant to whether a worker receives FMLA protections.

The Seventh Circuit affirmed, rejecting the Park District’s argument that Ballard did not “care for” her mother as contemplated in the FMLA during the Las Vegas trip, because the away-from-home trip did not involve ongoing medical treatment. The court held that the FMLA uses the term “care” rather than “treatment” when explaining who qualifies for protected leave. Further, the court noted that the FMLA’s text does not reference the geographic location where such care must take place. Finding that her mother’s basic needs did not change during the trip to Las Vegas, the court found that Ballard’s absence was for the purpose of providing care and, therefore, fell within the FMLA’s protection. Finally, the court indicated that its holding was a narrow one: “[W]e note that an employer concerned about the risk that employees will abuse the FMLA’s leave provisions may of course require that requests be certified by the family member’s health care provider.… And any worries about opportunistic leave-taking in this case should be tempered by the fact that this dispute arises out of the hospice and palliative care context.”

Impact: This case clarifies for employers that, at least in the Seventh Circuit (Illinois, Indiana and Wisconsin), geographic location is not a relevant consideration for purposes of determining an employee’s entitlement to FMLA leave. While the Seventh Circuit’s ruling seems to be limited to the palliative care context, it is not clear in what other circumstances the court might find out-of-town travel to be covered by the FMLA. The law on this topic is not uniform across the federal circuits, and employers should consult counsel when presented with an employee’s request for FMLA leave to cover out-of-town travel.

If you have any questions about the matters addressed in this issue, please contact the author Lori Zahalka or the US Employment practice chairs Marcia Goodman or John Zaimes.