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Supreme Court Invalidates Major Portions Of Arizona State Immigration Laws

June 27, 2012 -

Many states have now passed their own version of immigration laws related to the large number of aliens who do not have a lawful right to be in this country. Arizona has been one of the leaders in promulgating such laws, and four of the provisions of Arizona immigration laws are addressed in a June ruling of the US Supreme Court. Arizona v. U.S., ___ U.S. _____ (June 25, 2012). The question was whether the federal immigration laws preempt and render invalid these provisions of Arizona law. The federal government sued Arizona contending that its State laws intruded on the federal constitutional power to “establish a uniform Rule of Naturalization” and on the federal government’s inherent sovereign power to control and conduct foreign relations.

The Court started with the premise that the Constitution gives Congress the power to preempt State law. Federal statutes may contain an express preemption provision. In addition, States are precluded from regulating conduct in a field that Congress has determined must be regulated by its exclusive governance, and State laws are preempted when they conflict with federal law.

Adopting a broad interpretation of federal preemption principles, the Court concluded that 3 of the 4 provisions are preempted. The first provision made failure to comply with federal alien-registration requirements a criminal misdemeanor. The Court determined that this law gives Arizona the power to bring criminal charges against individuals for violating a federal law, even in circumstances where federal officials determine that prosecution would frustrate federal policies, and is thus preempted.

The second provision made it a criminal misdemeanor for an unauthorized alien to seek or engage in work in Arizona. The Court found that relevant federal provisions do not impose federal criminal sanctions on the employee (i.e., penalties on aliens who seek or engage in unauthorized work), and impose some civil penalties instead. It concluded that Congress decided it would be inappropriate to impose criminal penalties on aliens who seek or engage in unauthorized employment and it therefore follows that an Arizona law to the contrary is preempted.

 The third provision authorized state and local officers to arrest, without a warrant, a person the officer had probable cause to believe had committed any public offense that makes the person removable from the United States. The Court found that this provision gave state officers too much authority to arrest aliens on the basis of possible removability and allowed Arizona to achieve its own immigration policy and could result in unnecessary harassment of some aliens whom federal officials determined should not be removed.

 The fourth provision required state officers conducting a stop, detention, or arrest to make efforts, in some circumstances, to verify the person’s immigration status with the federal government. The Court rejected preemption of this particular provision, concluding that, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume the provision will be construed in a way that creates a conflict with federal law.

 Five justices joined in the opinion of the Court, one justice does not take part in the decision, and there are three opinions by Justices Scalia, Thomas, and Alito concurring in part and dissenting in part. The dissenting opinions argue that the mere existence of federal action in the immigration area cannot be regarded as a prohibition on the State passing immigration legislation, pointing out the long history of the States’ traditional role in regulating immigration, and their sovereign prerogative to do so. These opinions suggest that States are entitled to have their own immigration policy so long as it does not conflict with federal law. Justice Scalia asserted that State officials need not heed “federal priorities” particularly if those priorities include willful blindness or deliberate inattention to the presence of removable aliens in a State. These opinions suggest that a State should be able to excise its own power to establish a penalty for a violation of federal law as part of the implementation of its own policies of excluding those who do not belong there. Justice Scalia concluded that the State laws under challenge do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. Justice Alito observed that the federal government argues that the State law may be preempted not because it conflicts with a federal statute or regulation, but because it is inconsistent with federal agencies’ current enforcement priorities, which are not law. He argued that this preemption argument gives the executive unprecedented power to invalidate state laws that do not meet with its approval, even if the state laws are otherwise consistent with federal statutes and duly promulgated regulations, an argument at odds with our federal system.

 Editor’s Note- This Supreme Court decision will likely result in many more challenges to various state immigration laws around the country. The ruling does seem to expand traditional concepts of federal preemption to the exclusion of state sovereignty. However, some may try to distinguish the ruling due to the relative uniqueness of the U.S. constitutional provisions regarding immigration and the sovereign power to conduct foreign relations.

 In response to the Court’s unanimous decision against the Obama Administration on the fourth provision, the Administration announced that it would no longer provide Arizona with law enforcement information about the immigration status of aliens, and that it had established a hotline for people to report concerns about civil rights violations.

 The high court’s ruling comes just days after the administration announced a new policy of not deporting illegal immigrants under age 30 who came to the U.S., or were brought to the U.S. before reaching age 16, who are in school, or have graduated from high school, gotten a general education certificate, or are military veterans.

 Questions? Need more information? Call Jim Wimberly, Jim Hughes, or Ray Perez at (404) 365-0900 or e-mail them at jww@wimlaw.com, jlh@wimlaw.com; rp@wimlaw.com

Supreme Court Clarifies And Narrows The Definition of "Supervisor"

July 2, 2013 -

 In an important decision the Supreme Court clarified who is a “supervisor” for purposes of determining an employer’s liability for workplace harassment under Title VII, greatly narrowing the position urged by the EEOC and adopted by some courts. In Vance v. Ball State Univ., 11-556, 2013 WL 3155228 (U.S. June 24, 2013), a divided Court held that only those people who have been empowered by the employer to make a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits” are supervisors. The Court rejected various other definitions urged upon them, including that a supervisor includes anyone with authority to direct the activity of the alleged victim and that a supervisor includes those with authority to exercise “significant discretion” over the alleged victim’s daily work.

 WHY THIS MATTERS

 This decision is important because employers have much greater liability when a supervisor engages in harassment directed at an employee than when the harassing behavior is carried out by a non-supervisor or coworker. When the harasser is a coworker, the employer is only liable for the harassing conduct if the employee proves that the employer was negligent in allowing the conduct to occur – in other words, if the employer failed to take reasonable steps to prevent harassment, knew about the particular conduct at issue, and failed to take prompt and appropriate remedial steps to stop the conduct. When the harassment is carried out by a supervisor, however, the employer is strictly liable if the harassment resulted in a tangible employment action, such as a demotion or termination, against the complaining employee. In these cases, if the harassing conduct occurred, the employer does not have any defense. Furthermore, even when a supervisor’s harassment did not result in a tangible employment action against the employee and correct, the employer is liable unless the employer proves that it took appropriate steps to prevent harassment and the employee unreasonably failed to take advantage of the opportunities the employer provided. For example, the employer had a well-publicized and consistently enforced policy against harassment, including procedures to complain of inappropriate conduct, and that the alleged victim failed to follow that policy, in order to allow the employer to remedy the conduct.

 In the Court’s view, this narrower definition of who is a supervisor and therefore which standard of liability applies will be easier to apply than the broader and more flexible standard adopted by the EEOC and some courts. The Court emphasized that this narrow definition of supervisor does not mean that employers will escape liability for harassment carried out by those with some minimal levels of responsibility, but who do not actually have the power to take tangible employment actions. Rather, in these cases the employer will be liable if the employee proves that the employer was negligent in allowing the conduct to occur.

 PRACTICAL IMPLICATIONS

 While Vance is an important case and a victory for employers, it really applies to only a small number of harassment cases and even in those cases it merely changes the standards of proof; it does not eliminate employers’ obligation to attempt to be vigilant in their efforts to eliminate harassment from the work environment. The decision should be seen as another reminder of the importance that employers have an effective policy in place prohibiting harassment by all employees on any basis, that the policy includes a user friendly procedure for bringing complaints and concerns to the employer’s attention, and that the policy is consistently and fairly enforced. Only by doing so will employers avoid liability.

 For questions or additional information call Rhonda Klein, Kathleen Jennings, Paul Oliver, or any other attorney at (404) 365-0900 or at rlk@wimlaw.com, kjj@wimlaw.com, or po@wimlaw.com.

Supreme Court Green-Lights Mandatory Arbitration Clauses, Forestalling Class Actions: Could Be Good News For Employers

July 7, 2013 -

Will a mandatory agreement to submit disputes to one-on-one arbitration, bypassing class actions, hold up in court? The Supreme Court just said “yes” in a case involving credit cards – and this could be very significant news for employers who want to ensure that disputes with employees are handled confidentially, one at a time, rather than through protracted (and expensive) class actions in court.

 In American Express v. Italian Colors Restaurant, the restaurant wanted to accept American Express credit cards for payment. To do that, it had to enter into an agreement with the company that contained two important conditions. First, any dispute would have to be settled in one-on-one arbitration: no class actions allowed. Second, if it wanted to take American Express credit cards, it also had to agree to take the company’s debit cards. Retailers must pay high fees for both privileges, and the fees for debit card purchases are particularly high.

 The restaurant and a number of other merchants decided to sue American Express, claiming that the debit card requirement was an illegal “tying” arrangement that violated the antitrust laws. But since all of the merchants had signed the one-on-one arbitration agreement as a condition of accepting the cards, American Express said they couldn’t file a lawsuit, let alone a class action. The trial court agreed with American Express and dismissed the case, but the Court of Appeals agreed with the merchants and reversed, in part because enforcing the one-on-one arbitration requirement would make it prohibitively expensive to litigate the antitrust claims. American Express asked the Supreme Court for review.

 The Supreme Court came down squarely in favor of enforcing the arbitration agreement between American Express and the merchants. Justice Scalia, writing for the majority, found that abiding by the agreement between the parties was more important than any other consideration (such as enforcing the antitrust laws). Italian Colors had signed an agreement with American Express that precluded class actions, and was bound by its terms.

 The American Express decision is consistent with the Court’s other recent class action decisions, Dukes v. Wal-Mart and Comcast, which focused on the necessity to look at injuries and damages on an individual level rather than engaging experts to argue collectively. Class actions are where the big money is in litigation, although less for the class members, who often receive coupons entitling them to discounts from wrongdoing retailers, than for the lawyers, who routinely collect 7-or 8-figure fees. The expense of defending a class action, and the risk of financial ruin if you lose, often all but force a company to settle, even if they believe they would win in the end.

 So, what does this mean for employers? Potentially, a lot. All three of these Supreme Court decisions make it more difficult for litigants to bring class action claims in the future. What the American Express decision adds to the mix is that an agreement to arbitrate disputes one-on-one, rather than through a class action, will be honored. Employee-rights organizations will protest, but employers could require the same sort of agreements as a condition of employment, thereby protecting themselves from exposure to class action suits for back wages, discrimination, or other alleged violations. If you don’t think that will be important, just ask any employer who’s been on the receiving end of a class action.

Questions? Need more information? Contact Larry Stine at (404)365-0900 or jls@wimlaw.com;

or Elizabeth Dorminey at bdorminy@bellsouth.net.

Obama Administration Postpones Employer Penalties and Certain Other Requirements Until After 2014 Elections

July 12, 2013 -

On July 2, 2013, in a Treasury Department blog post, the Obama administration announced that it will postpone the effective date of several requirements imposed on employers. The administration will publish details of the relief being granted in the near future.

The blog post indicates that large employers (those with 50 or more employees) will not be subject to the employer shared responsibility payments until 2015. In other words, for 2014 only, large employers who do not offer health coverage to at least 95% of their employees will not have to pay a penalty of as much as $2,000 per employee per year for all employees (less 30) if just one employee obtains tax subsidized coverage in a State Exchange. Also, for 2014 only, employers, who offer health coverage that is not affordable or that does not provides minimum value, will not have to pay a penalty of as much as $3,000 per year for each employee that obtains tax subsidized coverage in a State Exchange.

The blog post also mentions that, for 2014 only, employers will not have to comply with certain information reporting requirements. All employers will not be required to file information returns that include details about the employees who have employer-provided health coverage, the type of coverage, and the premiums paid. Large employers will not have to submit information returns that disclose information about their health coverage and their full-time employees and that are necessary for determining the employer and individual penalties.

This transitional relief does not yet extend to employees. Employees may have access to tax subsidized coverage in the State Exchanges and may be subject to the individual penalties if they do not have minimum essential coverage. On July 9, White House Press Secretary Jay Carney said that the individual mandate would take effect as planned, although Republican leaders are calling for the same one-year delay for individuals as has been granted for employers.

What does this transitional relief mean for large employers? Large employers who offer health care coverage to their employees still must prepare for implementation of all other Obamacare requirements that become effective in 2014, such as reducing the waiting period for coverage to no more than 90 days. Otherwise, such employers will be subject to other penalties imposed by federal law and to lawsuits by employees based on violations of their rights under Obamacare and other federal laws. Large employers who do not offer health care coverage to their employees may have another year to decide whether to offer coverage.

There have been many comments as to the reasons for the delay. The Administration stated that the decision is one of accommodating business, but many questions remain as to whether the government is ready to implement the new law. Regulations have not been issued in many areas, including regulations covering information that was to be provided to each employee starting October 1, 2013, as to options of participating in the state exchanges, and regulations necessary for reporting data to the government. Further, reports indicate that the new computer systems necessary to implement the law have not yet been installed. Indeed, the Government Accountability Office has reported that various steps are still necessary for building the state exchanges.

Employers need to follow carefully subsequent developments and hopefully guidance that will come out concerning notices that were to be issued to employees beginning October 1.

Questions? Need more information? Contact Jim Hughes at (404)365-0900 or jlh@wimlaw.com or James W. Wimberly, Jr. at (404)365-5609 or jww@wimlaw.com.

A Teachable Moment: What Employers Can Learn From Paula Deen’s Experience.

August 15, 2013 -

The national attention devoted to Paula Deen provides an excellent opportunity for employers to review their policies and procedures concerning harassment and inappropriate conduct in the workplace with all employees, but most particularly, supervisors and members of management. Supervisors and managers are the first line of an employer’s defense in the prevention of claims for harassment or discrimination. At the same time, under certain circumstances, the actions of supervisors and managers can result in strict liability for the employer if the supervisor or manager engaged in conduct that is considered to be harassment and the affected employee suffers a tangible change in his/her employment, such as termination or demotion. Thus, it is critical that all supervisors and managers understand their responsibilities with regard to addressing and preventing claims of workplace harassment.

What has been lost in the ongoing debate over Ms. Deen’s use of the “n” word is a description of other troubling conduct on her part. For example, it was revealed in her deposition that she was aware that her brother, a part owner in the business, was viewing pornography at work. In addition, Ms. Deen’s testimony displayed a rather cavalier attitude about the use of jokes about race and religion. These are the kinds of behaviors that should not be tolerated in a workplace.

Our recommendation: We recommend that every employer engage in regular training sessions with its supervisors and managers to reinforce the employer’s policy against harassment in the workplace. There are three main reasons for this recommendation:

First, supervisors and managers need to be aware of the types of conduct and comments that are deemed unacceptable by the employer.

Second, in the event that a supervisor or manager is accused of committing harassment, and the complaining employee suffers no tangible detriment to his/her employment, the employer can avoid liability by showing it has effective policies and procedures to prevent harassment and effective policies and procedures to address and remedy harassment when it occurs. One important element of proof in this defense is to show that the employer took the initiative to conduct regular training of its supervisors and managers in harassment avoidance.

Third, an employer is also liable for the acts of non-supervisory employees when it knew or should have known of the conduct but failed to take prompt remedial action pursuant to a policy prohibiting sexual harassment. Supervisors and managers are responsible for taking action when they become aware of potentially harassing conduct in the workplace and should be aware of their duties and responsibilities to report such conduct to the appropriate person (usually a human resources representative) so that prompt, effective action can be taken by the company.

The time and money spent in training supervisors and managers in learning to recognize and avoid harassment in the workplace is far less than the cost of litigating a harassment lawsuit. Now is a good time to make sure that such training is up to date.

For questions or additional information call Kathleen Jennings, Rhonda Klein, Paul Oliver, or any other attorney at (404) 365-0900 or at kjj@wimlaw.com, rlk@wimlaw.com or po@wimlaw.com.

How Supreme Court Gay Marriage Ruling Affects Employers

August 16, 2013 -

In a ruling issued by the U.S. Supreme Court on June 26, 2013, the Court declared unconstitutional Section 3 of the federal Defense of Marriage Act (DOMA), which defines marriage as a legal union between a man and a woman for purposes of more than 1,000 federal laws. The majority indicated that by denying federal recognition to a marriage recognized as legitimate under state law, the federal law violated the Constitution's guarantees of equal protection and due process. U.S. v. Windsor, _____ U.S. _______ (June 26, 2013). A companion case, Hollingsworth v. Perry, addressed whether the 14th Amendment's equal protection clause prohibited the State of California from defining marriage as the union of a man and a woman. The Court did not reach the merits of this particular issue, but instead denied review on technical grounds leaving standing a lower court ruling that struck down California's Proposition 8, which banned gay marriage.

Technically, the Supreme Court rulings do not address whether there is a federal constitutional right for same-sex marriage under the laws of the various states, thus suggesting there will be further rounds of litigation addressing that particular issue. The ruling does not address a separate DOMA provision that states need not recognize same-sex marriages performed by other states. Justice Scalia, however, writing for the dissent, indicated that the majority has provided a "blueprint" for extending gay marriage nationwide.

In the meantime, the rulings of the Court will play out in the states in two ways. First, numerous legal challenges will be made in those states prohibiting same-sex marriages, and at the same time efforts will be made in the states to overturn legislatively the banning of same-sex marriages. Currently, at least eight states recognize full or limited civil unions or domestic partnerships, plus the District of Columbia. Over 30 states have laws or constitutional amendments prohibiting same-sex marriages.

The immediate effect of the ruling is that employers in those states that recognize same-sex marriages will have to review their employee-benefit packages to make sure they do not discriminate against gay marriages. Even in states that ban gay marriages, more and more employers will likely move to recognizing same-sex relationships in their benefit programs to be consistent with the trend in the U.S. both legally, but also in public opinion.

The Supreme Court ruling appears to immediately affect federal benefits and federally-regulated benefits, including 401(k) plans and pensions. Gay marriages will lead to the same privileges as beneficiaries enjoy like other married couples. In healthcare, changes will be required to provide equal tax treatment of health insurance premiums, as a gay spouse will have the same right as a heterosexual spouse to pre-tax premium deductions. The ruling will also affect various other federal laws including immigration, bankruptcy and student aid. On the other hand, same-sex married couples could also see the likelihood of federal income tax increases, although there may be savings in the federal estate tax.

The issue drawing everyone's immediate attention is what to do about gay spouses who are married in states allowing such marriages, but who currently live in states that do not recognize same-sex marriages. Under past practices, many federal benefits such as Social Security turn on the validity of a marriage under the law of the state where the couple resides. The IRS will have to address these issues. Employers will have to address similar issues.

Supreme Court Gives Donning and Doffing Guidance

2014-

Supreme Court Gives Donning and Doffing Guidance

On January 27, 2014, the U.S. Supreme Court rendered an important donning and doffing ruling in Sandifer v. United States Steel Corp. (No. 12-417). The case concerned issues of whether donning and doffing certain protective gear was compensable. The Court ruled that the time spent donning and doffing protective gear was not compensable because of Section 203(o), a special provision of the wage-hour law applicable only to operations covered by a labor agreement. The case and more significantly its ramifications are highly important to both union and non-union employers.

The facts involved a steel-making facility in which employees were required to don and doff the following types of required protective gear: a flame-retardant jacket, pair of pants, and hood; a hard hat; a "snood"; "wristlets"; work gloves; leggings; "metatarsal" boots; safety glasses; ear plugs; and a respirator. The plaintiffs sued contending that they wanted to be paid for the time they spent putting on and taking off these objects.

For purposes of this decision, the Court stated the case turned on the application of Section 203(o), which in pertinent part states: ". . . there shall be excluded any time spent in changing clothes or washing at the beginning or end of each work day which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee."

The Court describes this portion of the statute as providing that the compensability of time spent changing clothes or washing is a subject appropriately committed to collective bargaining. Later, the Court reiterates that the object of Section 203(o) is to permit collective bargaining over the compensability of clothes-changing time and to promote the predictability achieved through mutually beneficial negotiations.

The plaintiff argued that the word "clothes" was indeterminate and should not include items designed and used to protect against workplace hazards. Plaintiff further argued that even if "clothes" included the protective gear at issue, the exception did not apply unless there was a "changing" of clothes, which meant to substitute one item of changing for another, rather than simply adding protective gear.

As to the first contention, the Court rejected the proposition that "clothes" somehow excluded protective clothing. The distinction offered by Plaintiffs would reduce 3(o) to “near nothingness.” It is only when employees change into protective clothing that the issue arises as to whether the activity becomes "an integral and indispensable part of the principal activities for which covered workmen are employed.” Thus, section 3(o) is meant to exclude that time.

The Court did find some limitation to the word "clothes" as the term is not so broad to mean essentially anything worn on the body – including accessories, tools, and so forth. The Court indicated its definition leaves room for distinguishing between clothes and wearing items that are not clothes, such as some equipment and devices. The Court refused to find that "clothes" excluded all objects that could conceivably be characterized as equipment.

Addressing the second argument of plaintiffs dealing with "changing clothes," the Court ruled that the term "changing" included not only to "substitute" but also to "alter." The Court thus found that "time spent in changing clothes" included time spent in altering dress.

Applying the principles to the facts of the case, the Court found that the first nine particular items donned and doffed clearly fit within the interpretation of clothes, as they were both designed and used to cover the body and are commonly regarded as articles of dress. However, three items did not meet the definition, glasses, earplugs, and respirators. The question then was whether the time devoted to the putting on and taking off these three items must be deducted from the non-compensable time.

In one of the two most controversial portions of the ruling, the Court stated that: "We doubt that the de mininis doctrine can properly apply to the present case." The Court stated that ". . . we nonetheless agree with the basic perception of the Courts of Appeals that it is most unlikely Congress meant Section 203(o) to convert federal judges into time-study professionals." The Court analogized that just as one can speak of "spending a day skiing" even when less-than-negligible portions of the day are spent having lunch or drinking hot toddies, so one can speak of "time spent changing clothes and washing" when the vast preponderance in question is devoted to those activities. The question for the Court is whether the period at issue can, on the whole, be fairly characterized as "time spent in changing clothes or washing." ". . . if the vast majority of the time is spent in donning and doffing 'clothes' as we have defined that term, the entire period qualifies, and the time spent putting on and off other items need not be subtracted."

Thus, under the facts of the case, all the time spent donning and doffing the twelve items of protective clothing were deemed non-compensable because of the Section 203(o) exemption for collective bargaining relationships.

Wimberly & Lawson Comments:

The following comments are going to be controversial, as different attorneys may draw different interpretations from the Sandifer ruling. Therefore, please remember that the following comments are not "black letter law," but instead one law firm's interpretation of the ruling and its ramifications to union and non-union employers.

The first controversial point has already been mentioned, basically whether the Sandifer case abolishes the de minimis rule under the wage-hour laws. The de minimis doctrine, as noted in the Sandifer case, is a long-standing doctrine that has been previously acknowledged as good law by the U.S. Supreme Court, and it currently exists as a standard under federal wage-hour regulations in 29 C.F.R. Section 785.47. Our firm places great significance on the fact that the context of the Court's ruling was limited to the application of Section 203(o), and not to the entire wage-hour law. We believe that the Court is saying that the de minimis doctrine does not apply to Section 203(o); it is not saying that the de minimis rule does not apply anywhere under the wage-hour laws.

The Court nowhere indicated that the de minimis doctrine as outlined in an earlier Supreme Court ruling in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), was no longer applicable under the wage-hour laws, or that the federal wage-hour regulations applying the de minimis concept were no longer valid. Thus, we believe there is room for the continuing application of the de minimis doctrine under wage-hour law, although courts may feel more inclined in light of Sandifer to make more limited applications of the doctrine. Further, plaintiffs are sure to argue that the doctrine no longer exists under the wage-hour laws.

Another point worth mentioning here is that the Court actually applies a more favorable (to employers) doctrine than the de minimis rule in the context of Section 203(o). That is, the Court talks about not making federal judges into "time-study experts" and determining whether the vast majority of the time was spent in changing clothes, or changing certain types of equipment not considered clothes. The Court, in essence, is applying something akin to the "vast majority" of time spent in non-compensable activities, versus compensable activities, and indicating the entire time is to be counted as non-compensable under those circumstances. This conceptually is a more valuable doctrine than de minimis, although again the Court is only talking about Section 203(o).

In light of the Court's explanation of the concept to Section 203(o), one wonders whether the same concept would be applied by the Court to lunch periods. Some courts have indicated that if lunch periods of 30 minutes or longer are primarily for the benefit of the employee to have lunch, the fact that some compensable donning and doffing is performed during that lunch period does not destroy the non-compensability of the entire lunch period. The Court's rationale in Sandifer seems to support this concept concerning lunch periods, although it would be reasoning by analogy. This conclusion further supported by the favorable citation to Sepulveda v. Allen Family Foods, Inc., 591 F.3d.209, 218 which applied this reasoning to meal breaks.

Perhaps the most controversial part of the Sandifer ruling is, however, how it affects the non-union sector. There is a simple sentence in the ruling referring to donning and doffing the twelve items of required protective gear that "because this donning-and-doffing time would otherwise be compensable under the Act." Some commentators and all plaintiffs' lawyers will take the position that this means the donning and doffing of protective gear should never be from compensable time as preliminary or postliminary to the principal activity or activities that an employee is employed to perform under the Portal-to-Portal Act. That Act excludes from compensable time such activities. If this interpretation of Sandifer is correct, then a powerful defense would be unavailable to employers, that the donning and doffing of protective equipment in some circumstances at least should be excluded from compensation as preliminary or postliminary time. When combined with the plaintiff's argument that the de minimis rule no longer applies, non-union employers would have few defenses left to defend donning and doffing lawsuits.

Wimberly & Lawson believes that the Supreme Court did not go that far. Indeed, the Court cited Steiner v. Mitchell for the proposition that "changing clothes and showering" can, under some circumstances, be considered an "integral and indispensable part of the principal activities for which covered workmen are employed. . . ." The Court also discussed its IBT ruling as applying Steiner to treat as compensable the donning and doffing of protective gear somewhat similar to that at issue here, meaning the twelve items of protective clothing involved in the Sandifer fact pattern. In its decision, the Court indicates that it is talking about "items that can be regarded as integral to job performance." Later, the Court expressly limits its holding to the "donning and doffing of the protective gear at issue," referring to the twelve particular items which included a flame-retardant jacket, pair of pants, hood, hard hat, snood, wristlets, work gloves, leggings, metatarsal boots, safety glasses, ear plugs and a respirator.

The significance of this point is that many cases draw a distinction between "unique" and "non-unique" protective gear, indicating that "heavy" or "unique" protective gear is not subject to the preliminary and postliminary exception of compensable work time under the Portal-to-Portal Act. Thus, a close reading of the Sandifer case indicates there is still room to argue this distinction, in addition to the de minimis doctrine. Indeed, we believe the case could open up a new argument for employers that the Court looks to see which activity constitutes the vast majority of time – donning and doffing gear that is an integral and indispensable part of the principal activity or donning and doffing gear that is not integral and indispensable.

Nevertheless, there is no question that as a result of the Sandifer decision, more donning and doffing lawsuits will be brought in the non-union sector. In contrast, in the union sector, there will likely be fewer such suits. Non-union employers need to look at their work practices and determine how, if any, they should be modified because of the additional legal exposure.

For questions or additional information call James W. Wimberly, Jr., J. Larry Stine, Elizabeth Dorminey, or any other attorney at (404) 365-0900 or at jww@wimlaw.com, jls@wimlaw.com, or ekd@wimlaw.com.


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