In a report today carried by the AP wire service, it was announced that the U.S. Department of Labor figures are in, and appears that for the last month the rate of unemployment is unchanged, with less jobs lost than anticipated.

By Harley Bjelland

Here we go again.  The 65% government subsidy provided to individuals who lost their jobs between September 1, 2008 and February 28, 2010 has again been extended to March 31, 2010.  Under the Temporary Extension Act of 2010 employees who lose their jobs through March 31, 2010 may be eligible for the COBRA subsidy.  The Act  further provides that persons who experience a reduction in hours during the period from September 1, 2008 through March 31, 2010 may qualify for the subsidy.  This change will require a new notice to those experiencing a reduction of hours.  Stay tuned for safe harbor notices.  Guidance is not yet out.

A Twin Cities school district was ordered to immediately stop using unlicensed and untrained janitors to do electrical and plumbing work.

CDF LLP has expanded its practice to include advising employers on immigration issues and employment based visas.  We will be hosting a complimentary immigration seminar at our Sacramento office on March 11, 2010 from 11:30 a.m. to 1:00 p.m., and at our Los Angeles office on April 7, 2010 from 11:30 a.m. to 1:00 p.m.  These seminars will cover recent immigration developments and employment-related basics including the following:  Compliance With New I-9 Regulations, E-Verify, ICE Enforcement, and Visa basics for employers.  For more detailed information and to register, please click here for Sacramento registration and here for Los Angeles registration.
 

DOJ and Goodyear Tire & Rubber Co have settled DOJ's claim that the company failed to promptly reemploy an Army Reserve major following his military service.

DOJ claimed that the company took no steps to identify the position the employee would have received had he not been activated, and it failed to reemploy him for nearly a year.

Goodyear will pay $40,000 in back wages and other damages.

[Press release]

Lawmakers of all stripes returned to the Statehouse Monday to reach deals on their key issues before a Sunday deadline to adjourn.

A Louisiana jury has awarded $1.2 million to 16 workers who claimed they were exposed to dangerous levels of radiation when they were cleaning used oil drilling pipes at an Exxon Mobil Corp facility.

[Article]

So, here we are again.

Yesterday, by a 6-4 margin, the Labor & Public Employee's Committee of the Connecticut General Assembly approved a bill (S.B. 63) that would mandate that employers with 50 or more employees provide five sick days to its workforce.  The vote was largely along party lines. 

Various blogs and media outlets have the recap of the legislative happenings this morning including the Courant, the CBIA's Inside the Capitol blog, and CT News Junkie.  Because the measure passed committee last year, it hardly comes as a big surprise.

The CBIA has been lobbying hard against the bill; last year, the bill's sponsors were a vote or two shy of passage in the Senate.  It's difficult to think that much has changed.

The CBIA has pointed out that "Connecticut would be the first state in the nation to impose such a mandate, but that hasn’t slowed supporters of the bill, many of whom have said that jobs is the top issue this session. Unfortunately, adding a new mandate onto employers is the wrong way to go if you’re serious about job creation and retention."

It is worth mentioning that the bill would go beyond the traditional notions of a "sick day" as well and allow for time off in instances where the employee is a victim of "family violence" or "sexual assault".

Employers in Connecticut should keep a close eye on this measure as it moves along in the legislative process.

An NLRB regional director has ordered elections to proceed between two rival unions in 31 health care facilities in northern California.

The National Union of Healthcare Workers (NUHW) seeks to displace Service Employees International /United Healthcare Workers-West (SEIU-UHW) at these locations.

[Order]

NLRB press release:

Certain health care facility elections allowed to proceed in California

A National Labor Relations Board Regional Director has ordered elections to proceed between rival unions in about 31 health care facilities in northern California.

The order issued late Monday by Alan B. Reichard of the Oakland office sets the stage for elections between the Service Employees International /United Healthcare Workers-West (SEIU-UHW) and the National Union of Healthcare Workers (NUHW), which are competing to represent thousands of health care workers throughout the state. Some elections may be preceded by hearings to clarify the voting group; others will proceed by agreement of the parties regarding such issues as voting dates and times and voter eligibility.

Approximately 32 elections are still blocked by allegations brought by SEIU-UHW against NUHW and its principals. These allegations remain under active consideration by the NLRB’s Office of the General Counsel.

The National Labor Relations Board is an independent federal agency vested with the power to safeguard employees' rights to organize and to determine whether to have unions as their bargaining representative. The agency also acts to prevent and remedy unfair labor practices committed by private sector employers and unions. The NLRB’s Office of the General Counsel has independent prosecutorial discretion under the National Labor Relations Act to issue complaints alleging such unfair labor practices.

###

The US Supreme Court announced today that it will review a controversial decision from the 9th Circuit - National Aeronautics and Space Administration [NASA] v. Nelson.

Nelson requested a preliminary injunction to prevent implementation of NASA's requirement for in-depth background investigations of "low risk" contract employees. The trial court denied the request for a preliminary injunction. The 9th Circuit reversed.

Given the open-ended and highly private questions authorized by the investigation which did not appear narrowly tailored to any legitimate government interest, the 9th Circuit concluded the trial court erred in finding that Nelson was unlikely to succeed on his informational privacy claim. The court stated the balance of hardships tipped sharply towards Nelson, who faced a stark choice - either violation of his constitutional rights or loss of his job.

The US Supreme Court granted certiorari to review the 9th Circuit judgment.

We expect oral arguments to be scheduled for the fall of 2010.

Question presented:

1. Whether the government violates a federal contract employee’s constitutional right to informational privacy when it asks in the course of a background investigation whether the employee has received counseling or treatment for illegal drug use that has occurred within the past year, and the employee’s response is used only for employment purposes and is protected under the Privacy Act, 5 U.S.C. 552a.

2. Whether the government violates a federal contract employee’s constitutional right to informational privacy when it asks the employee’s designated references for any adverse information that may have a bearing on the employee’s suitability for employment at a federal facility, the reference’s response is used only for employment purposes, and the information obtained is protected under the Privacy Act, 5 U.S.C. 552a.

Some worker and immigrant rights groups are backing an Illinois Senate bill aimed at strengthening laws dealing with employers who shortchange or don't pay workers.

EEOC filed a class lawsuit Friday charging that Jay Medicar Transportation tolerated the sexual harassment of a number of female employees by one of its senior managers and retaliated against one employee after she complained about the harassment.

EEOC said that a top manager at the company allegedly frequently made comments of a sexual nature to subordinate female employees and on at least one occasion demanded sexual favors from an employee in exchange for a pay raise.

Press release 03/05/201:

EEOC Sues Medical Transportation Company For Sex Harassment and Retaliation

Federal Agency Says Jay Medicar Allowed Harassment of Female Employees

CHICAGO – The U.S. Equal Employment Opportunity Commission (EEOC) filed a class lawsuit here today charging that Jay Medicar Transportation tolerated the sexual harassment of a number of female employees by one of its senior managers and retaliated against one employee after she complained about the harassment. The company provides medical transportation services in the Chicago area.

John Rowe, EEOC district director in Chicago, said that the EEOC’s administrative investigation which he directed revealed that a top manager at the company allegedly frequently made comments of a sexual nature to subordinate female employees and on at least one occasion demanded sexual favors from an employee in exchange for a pay raise.

“Several people complained to the company’s management repeatedly,” Rowe said of the investigation. “These complaints were allegedly ignored, and one female employee who complained appears to have been fired shortly after the company learned that she had filed a charge with the EEOC.”

The EEOC’s lawsuit was brought under Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination (including sexual harassment) as well as retaliation, in employment. The EEOC filed suit after first attempting to reach a voluntary settlement through its statutory conciliation process. The case, EEOC v. Jay Medicar Transportation, LLC, a/k/a Jay Transportation, f/k/a Jay Medi-Car, Inc, Civil Action No. 10 cv 01477, was filed today in U.S. District Court for the Northern District of Illinois, Eastern Division, and has been assigned to U.S. District Judge William J. Hibbler and U.S. Magistrate Judge Geraldine Soat Brown. EEOC Trial Attorney Justin Mulaire and Supervisory Trial Attorney Gregory Gochanour will litigate the case on behalf of the government.

The EEOC regional attorney in Chicago, John Hendrickson, said, “Unfortunately, even in times of economic stress, some employers continue to penalize themselves through harassment and retaliation. Both may well involve exposure to awards of damages, loss of good will, significant attorneys’ fees, and other litigation costs—not to mention major distractions from the conduct of business itself. From our perspective at the EEOC, it would seem that, in a competitive business environment in tough times, compliance with federal law is surely a better investment.”

The EEOC’s Chicago District Office is responsible for processing charges of discrimination, administrative enforcement, and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa, and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.

The EEOC is responsible for enforcing federal laws against employment discrimination. Further information is available at www.eeoc.gov.

A St. Louis construction company has agreed to pay $17,000 in lost wages and other compensation to a worker allegedly fired for having a history of cancer and other medical problems.

March 02, 2010 /EIN News/ -- Federal law and Texas state law protect individuals from workplace discrimination on the basis of certain characteristics.

Read the briefs [here] in New Process Steel v. National Labor Relations Board, to be argued at the US Supreme Court on March 23.

The NLRB has had only two Members (instead of the normal five Members) since the end of 2007. Near the end of 2007, there were still four Members, and they delegated their powers to a group of three. Everybody knew that only two of those three would be left at the end of the year.

The NLRB's position has always been that the surviving two Members are a quorum of the three to whom powers were delegated.

Employers have argued that the whole thing was a sham. On a more technical level, the argument was that the Board's delegation could not survive the loss of a quorum on the Board itself.

The 7th Circuit held that the NLRB had the statutory authority to hear cases and issue orders regarding unfair labor practice charges.

The US Supreme Court granted certiorari to review the 7th Circuit judgment.

A report by Westat says that 54% of undocumented workers with cases submitted through the federal government’s E-Verify system receive an inaccurate finding of being work authorized, probably because of the use of false identities.

Overall, 96% of the time E-Verify accurately judges workers' status.

[CCH article]

Unemployment in Connecticut ticked up slightly to 9 percent in January, the highest yet in this recession, a new report by the state Department of Labor shows.

For the next few weeks, I will be posting a few items about a technology and the law symposium that I am chairing on April 9, 2010 for the Connecticut Bar Foundation.  It is a free program that should be of interest to attorneys and non-attorneys alike.  While it is not strictly "employment-law" related, I hope you will indulge me in a few of these posts as a public service for the CBF whose website (how do we put this delicately) is in need of some free technology help.  

Thirty years ago, people discovered that Apples were more than something you ate.  And yet, ten years ago, tweeting was something birds did, cell phones were just for making calls and electronic filing was a quaint dream.

Today, attorneys can file a motion from home in pajamas, can look up a case on their smart phone, and can text a client from a beach -- in Portugal.  

What does tomorrow bring?

On April 9, 2010, a free symposium -- hosted at UConn Law School -- will explore multiple facets of the changing practice of law and begin to answer that question. The scope of the symposium is wide-ranging: From social media and Facebook, to the rise of internet self help sites; from Google and iPhones to cloud computing.  You can download the entire program here.

With nationally-recognized speakers (Ross Kodner, Kevin O'Keefe, Brent Robertson, Professor Jane Moriarty, Wesley Horton and Robert Ambrogi to name drop a few) and local expert attorneys, the symposium will discuss how each generation is embracing (or shunning) these changes and how each generation is using (and can use) different tools to accomplish the same goals. The symposium will also explore how 20th century rules apply to today's changes and discuss ways of adapting those rules to future needs.  Social media and technology tips are also on the agenda.

But not to be missed is a unique lunchtime discussion on "Would Lincoln get LinkedIn? Or Would He Tweet? Technology, Then and Now", bringing a historical perspective to the changing practice.  

No matter if you're plugged in or think an 'app' is still something you order before dinner, this program promises to be one of the most talked about programs of the year. And did I mention that breakfast and lunch are ALSO included, free of charge? (Thanks to generous sponsorship by my firm, Pullman & Comley LLC.)

Space really is limited.  We fully expect it to fill up.  But you can print out the RSVP form and e-mail it back to ctbf@cbf-1.org to guarantee your spot.

And what to do if you're out of state? Well, it just so happens that the Connecticut Law Tribune and Brandon Smith Reporting & Video have teamed up to provide a free webcast. Details on that broadcast will be available soon.  

I'll be announcing more details in the upcoming days including a Twitter contest.  (You can follow all symposium tweets on Twitter with the hashtag #cbftech.)   In the meantime, be sure to RSVP. You won't want to miss this one.   

EEOC claimed that a female office clerk at HD Supply, Inc was sexually harassed and ridiculed by a male co-worker.

The suit settled for $33,000 and other relief.

[Press release]

How do you explain work issues for kids?

That was a question I posed two years ago in a post.  I didn't really answer it other than to point to a children's book "Click Clack Moo, Cows That Type" as a way to have a discussion about labor issues with kids from 3-8 or so.

But there's only so many times you can read the same book to your kids (although, no doubt, kids can often request the same book nightly for seemingly forever).  

In recent weeks, I've come across another book that I can recommend titled "Animal Strike at the Zoo".  The premise? Well, as you might expect, the animals at the zoo are unhappy with their living condition (after all, the elephants are just paid peanuts) and decide to stop doing anything other than sleep.  After awhile, the zookeeper improves some of their conditions but refuses to give the zebras the root beer floats they've been asking for. 

Suddenly, a little girl Sue comes by the zoo (she's been waiting for her visit all year).  Will the animals decide to give their strike a break?  I won't ruin the ending, though I have heard rumors that the animals at the circus may be next.    

I'm sure, as with "Click, Clack, Moo", some will try to turn it into a symbol of a great union vs. management struggle. (In fact, there are labor unions who recommend that book during the "holiday season" for their members.) 

But for others looking just for a light-hearted tale with great pictures that introduces the concept of a "strike", this book will work.   Trust me: The younger set will love this one.  And you can use it to talk to your kids about strikes. A win-win.  

After the Senate finally convinced Senator Jim Bunning to stand down his one-man protest (covered in my previous post), Congress passed -- and the President signed -- an extension of the COBRA subsidy last week. (You can find the bill, called "The Temporary Extension Act of 2010," here.) The extension is clearly a stopgap measure: It lasts only until the end of this month (March), by which time Congress hopes to have passed a more comprehensive jobs bill that will keep the subsidy in effect through the end of this year.

But the one-month extension of the subsidy wasn't the only COBRA news in the Temporary Extension Act: The bill also expands eligibility for the subsidy to those who initially lose their health insurance coverage due to a reduction in work hours, then are laid off. This is a small but vitally important change: Many businesses have tried to weather the current economic storm by cutting back on hours worked (and how much employees are paid for those hours). The most recent figures from the Bureau of Labor Statistics (for February 2010) show that more than six million people are involuntarily working part time due to business conditions or lack of work. Unfortunately, given the current economic climate, many of these businesses will ultimately have to make deeper cuts -- and many of these involuntary part-timers will eventually lose their jobs altogether.  

The new law gives these employees another opportunity to elect COBRA coverage once they are terminated -- and, therefore, become eligible for the subsidy. A cut in hours that makes an employee ineligible for group health insurance through the employer's plan is already a COBRA qualifying event, and the new law doesn't change that. Nor does the law make employees who are still working at reduced hours eligible for the subsidy. What the law does is provide an additional election period to these employees if they subsequently lose their jobs and become eligible for the subsidy. If an employee initially declined coverage or elected coverage but let it lapse, the new law gives that employee another chance to elect coverage after a job loss.   

By Suzanne Brummett

For employers sponsoring a foreign national employee for a green card, the process can take years, even for top talent.  Holding onto these key employees, particularly in the area of research and development, is a priority for companies seeking to maintain their competitive edge.  So what are the alternatives?  For researchers, there is the outstanding researcher category.

So what do you need to prove up such a case to U.S. Citizenship & Immigration Services?  An employer can sponsor an individual who is recognized internationally in a specific academic field, has three years experience in research, and the private employer has at least 3 full-time employees engaged in research activities in the department.

What evidence must be submitted?  The regulations outline specific criteria to be submitted which include at last two of the following (but more is better):  (1) receipt of major prizes or awards for academic achievement; (2) membership in associations requiring outstanding achievements of their members; (3) published material in professional publications written by others about the applicant’s work in the academic field; (4) participation as the judge of the work of others in the same or an allied academic field; (5) original scientific or scholarly research contributions; (6) authorship of scholarly books or articles in scholarly journals with international circulation in the academic field.

Individuals who may qualify for this category include researchers, scientists, or others who conduct research.  For more information, contact Suzanne Brummett, Senior Counsel within the Immigration Practice Group, at sbrummett@cdflaborlaw.com.
 

Employers who have shunned using arbitration agreements for fear that they will be overturned, will want to take a look at a recent federal court decision that upheld an arbitration agreement that had provisions that some would consider very pro-employer.

In Pomposi v. GameStop, Inc. (download here),  the employer moved to dismiss a collective action for unpaid wages brought by a former employee in federal court because it claimed that the employee entered into a binding arbitration agreement expressly agreeing to resolve any claims for minimum wage and overtime through arbitration. 

The so-called agreement was part of a new "C.A.R.E.S." program (Concerned Associates Reaching Equitable Solutions) that was rolled out to employees in 2007 during an annual conference held in Las Vegas. (It was later used by GameStop in its job applications as well.) 

Employees were required to sign an acknowledgment at that meeting certifying that they had received the handbook that contained the new rules. The acknowledgment stated "I understand that by continuing my employment with GameStop following the effective date of the C.A.R.E.S. program, I am agreeing that all workplace disputes or claims, regardless of when those disputes or claims arose, will be resolved under the GameStop C.A.R.E.S. program rather than in court."  Thus, when an employee returned from the conference to work, it was deemed to be effective. 

Besides the obvious point that "What Happens in Vegas" does not really stay in Vegas, the employee claimed that he wasn't actually agreeing to the program and that regardless, it was unconscionable and against statutory rights.

The District Court rejected those arguments.  The court stated that continued employment here was sufficient consideration for the arbitration agreement. While the "language of the acknowledgment could be better phrased", the court stated that it could not be deemed to be "so deficient" as to render it invalid.

The court also found that the waiver of a "collective action" under the Fair Labor Standards Act was also valid, distinguishing this case from others were it would be "prohibitively expensive" to litigate on an individual basis.  Moreover, the court stated that it is not unconscionable on a variety of grounds either. 

A recent check of the docket indicated that the employee has not appealed this decision to the Second Circuit.

For employers who have or are considering an arbitration program, this decision should be reviewed and analyzed as one way to control costs. Arbitration provisions aren't for every employer, but used appropriately, some may find it an effective way to keep their legal exposure and costs in check. 

The U.S. Department of Labor says a Nashville landscaping company has agreed to pay more than $449,000 in back wages and overtime pay.

A freelance videographer who worked on programming for the Orlando-based Golf Channel says he was harassed and ultimately fired after reporting that his co-workers smoked pot on the job.

Mark Moran / The Citizens' Voice A state audit of the Luzerne County Workforce Investment Development Agency and the Luzerne/Schuylkill Workforce Investment Board Inc.

Geneva Wood Fuels LLC of Strong faces six citations and proposed fines of $27,000 after an explosion rocked the mill last August.

Apparently, they busted Bill Dugan on a misdemeanor charge for soliciting a $900 animal feeder for his Maryland buffalo farm from an employer.

By Alison Tsao

The Ninth Circuit recently revisited its prior decision in Rutti v. Lojack Corp., regarding compensability of commute time and preliminary and postliminary work.  The Ninth Circuit altered its prior decision in some respects.  Our prior post on the Rutti case is here.  On rehearing, the Ninth Circuit ruled that an employee may seek wages for time spent commuting to and from work in a company car he is required to use when he is “effectively subject to the control of the employer,” as well as time spent on the “postliminary” activity of transmitting required daily portable data transmissions to his employer from home.

Specifically, the Ninth Circuit considered Rutti’s claims for compensation for commuting in a car which use was mandated by his employer, and for certain “off-the-clock” work he performed both prior to and after his commuting time.  Rutti brought a putative class action for unpaid wages on behalf of all technicians employed by Lojack to install and repair alarms in customers’ cars.  Most, if not all of the installations and repairs are done at the clients’ locations. The technicians were required to travel to the job sites in a company-owned vehicle.  Rutti was paid on an hourly basis for the time period beginning when he arrived at his first job location and ending when he completed his final job installation of the day.  In addition to the time spent commuting to his first job assignment and from his last assignment to home, Rutti also sought compensation for “off-the-clock” activities he performed before he left the house and after he returned home.  Rutti alleged he spent time in the morning receiving assignments for the day, mapping his routes to assignments, prioritizing jobs for the day, and minimal paperwork.  Rutti further alleged that he spent time after he returned home in the evenings to upload data to his company from a portable data terminal (“PDT”) from which his work activities were recorded during the day.

Although Rutti filed a motion for class certification at the same time Lojack filed a motion for partial summary judgment, the district court only ruled on the summary judgment motion in disposing of Rutti’s federal claims and state law claim for commuting compensation, and later dismissed the remaining state law claims for lack of subject matter jurisdiction.

The Ninth Circuit affirmed the district court’s ruling that Rutti’s commute time was not compensable under federal law pursuant to the Employee Commuter Flexibility Act (“ECFA,” 29 U.S.C. § 254(a)(2)).  ECFA provides that the use of an employer’s vehicle that is subject to an agreement between the employer and employee and is not part of the employee’s principal activities is not compensable.  This interpretation is consistent with federal authorities that the cost of commuting is not compensable unless employees “perform additional legally cognizable work while driving to their workplace.”  However, the Court ruled that Rutti is entitled to seek compensation for his commute time under California law as compulsory travel time.  Rutti asserts that Lojack restricts him from using the vehicle for personal pursuits and transporting passengers, requires that he drive directly from home to work and from work to home, and requires that he keep his cell phone on during the commute.  The Ninth Circuit, relying on the California Supreme Court’s decision in Morillion v. Royal Packing Co., 22 Cal.4th 575, 578 (2000), held that Rutti was entitled to seek compensation because he was subject to his employer’s control during his commute because he was foreclosed from engaging in personal pursuits that he would otherwise have been able to undertake if he was permitted to travel to the field using his own transportation.

The Court held that Rutti’s preliminary activities (those that take place before he leaves home) of “receiving, mapping, and prioritizing jobs and routes for assignment” are related to his commute and not related to his principal activities.  Moreover, even if they are related to his principal work activities, appear to be de minimis.  As a result, they are not compensable.  In contrast, Rutti’s postliminary activities in performing the PDT transmissions were a regular part of his work duties and necessary to Lojack’s business.  The Court ruled that upon remand, Lojack might still be entitled to summary judgment if the time spent performing such tasks was de minimis.  However, the factual record did not compel this conclusion because, although it may take only five to ten minutes to initiate the transmission, employees were required to come back to see if the transmission was successful and, if not, to send it again.  There was evidence of frequent transmission failures.  In so holding, the Court stated there was no bright-line rule that activities requiring less than ten minutes’ time was per se de minimis.  Rather, courts are to employ a three-prong test as established in Lindow v. U.S., 738 F.2d 1057, 1063 (9th Cir. 1984) and 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.  Because there was evidence that Lojack paid one technician 15 minutes a day to cover PDT transmission time, and Rutti testified that he spent about 15 minutes a day performing such tasks (which, over the course of one week was substantial enough to warrant compensation), the Court reversed the grant of summary judgment and remanded for reconsideration in light of these factors.

Employers who require employees to use company vehicles for commuting purposes should carefully review their policies to see whether they are exerting sufficient “control” over the time and manner in which employees are commuting to determine whether that time needs to be compensated.  Employers should also determine whether employees’ preliminary and postliminary activities are integral to the employees’ principal job duties and, if so, whether that work required more than de minimis time to determine whether additional compensation should be paid.

The Ninth Circuit's new opinion in Rutti v. Lojack Corp. is here.

The Ninth Circuit Court of Appeals held on March 2, 2010 in Rutti v. Lojack Corporation, Inc. that some work performed by employees at home, as well as time spent commuting, may have to be paid in certain circumstances.

The plaintiff in Rutti was a technician for Lojack, Inc. ("Lojack") who installed car alarms. In the morning, Rutti, as well as Lojack's other technicians, would receive their assignments for the day, map the route to their assignments, and prioritize the jobs. While traveling to the first job in the morning, as well as when traveling home at the end of the day, technicians were required to keep their cell phones on and drive directly between home and the job site without making any additional stops. After returning home, technicians were required to upload data received at the job sites from a portable data terminal ("PDT") to the company by hooking the PDT up to a modem.

The Ninth Circuit determined that the technicians' commute time was compensable under state law, but not federal law. The federal Portal-to-Portal Act, as amended by the Employment Commuter Flexibility Act, explicitly provides that employers need not compensate employees for time spent traveling to and from where they perform their job duties. The result under federal law was not changed by the fact that Lojack's technicians drove company cars, or that they were subject to certain employer-mandated restrictions while driving.

California, however, maintains stricter wage and hour laws. Under California law, the relevant question is whether the employee's time is "subject to the control" of the employer. The Ninth Circuit found that because technicians had to keep their cell phones on, and could not make additional stops while going to and from the job site (such as dropping children off at school), the time was subject to the employer's control and had to be paid under California law.

The Ninth Circuit went on to find that under federal law, the technicians' job tasks before the "start" of the work day were not compensable, but that time spent uploading data from the PDT "after work" might have to be paid. Under federal law, the question of whether these types of "preliminary and postliminary" activities must be paid depends on whether they are part of the "principal activities" that the employee is employed to perform. Even if these tasks are part of the employee's "principal activities," they need not be paid if they are de minimus. In deciding whether certain job tasks are de minimus under federal law, courts examine the practical administrative difficulty of recording the additional time, the aggregate amount of time at issue, and the regularity of the additional work.

Applying those factors, the Court held that even if the tasks performed by technicians prior to leaving home were part of their "primary activities," they were de minimus. These tasks took only a matter of minutes to complete, and it would be very difficult to record the time that technicians spent working on them. However, time spent uploading data from the PDT might be compensable. There was evidence that this task took anywhere from 5 to 15 minutes each night. While the Court acknowledged that there would likely be some administrative difficulty recording this time, it found that the time added up to over an hour per week, and was a regular part of the employees' job duties, and therefore might not be de minimus. Accordingly, the time might have to be paid, depending on the specific facts.

Still, even if this activity was found to be compensable under federal law, that did not mean that the technicians' travel time home had to be compensated, even under the "continuous workday doctrine." Under this doctrine, which the U.S. Department of Labor has adopted, an employee's workday generally lasts until he has completed all of his principal activities during the day. The Ninth Circuit found that the "continuous workday" rule did not apply in these circumstances because technicians were relieved of all duties upon returning home, and could input the data from the PDT at a time of their choosing. Federal regulations preclude application of the "continuous workday doctrine" where employees are relieved from all duty for a long enough period to be able to use that time for their own purposes. Still, this commute time generally has to be paid under California law. Here, the Ninth Circuit did not reach the issue of whether the "preliminary and postliminary" activities performed by the technicians had to be paid under California state law.

This case reminds employers that there can be significant differences between federal and state law in the wage and hour areas, and that they need to ensure that their practices comply with both sets of laws.

Husky Energy Corp, a petroleum refinery located in Lima, has paid $969,182 in back wages to 173 workers for unpaid overtime compensation after the Department of Labor determined the company had violated FLSA overtime pay provisions.

[Press release]

Recent high-profile cases listed on the EEOC website include a $19 million settlement of a class-action case against Outback Steakhouse; a $1.26 million settlement of a case against a Bahama Breeze restaurant in Ohio; and a $500,000 settlement of two cases against Landwin Management, Inc., a hotel operator in California.

The government has initiated enactment of a law to protect people who will provide the appropriate authorities with information on corruption in different offices, Law Minister Shafique Ahmed said yesterday.