Posts belonging to Category Caselaw Developments

In a unanimous decision authored by Justice Scalia, the Supreme Court held that the time spent by U.S. Steel employees “donning and doffing” protective gear was not compensable because they were “changing clothes” under Section 203(o) of the Fair Labor Standards Act (“FLSA”). Sandifer v. United States Steel Corp., 571 U.S. __ (2014) (slip opinion available here). The Court affirmed a Seventh Circuit decision which held that FLSA Section 203(o) allowed U.S. Steel to withhold pay for the time spent changing clothes under a collective-bargaining agreement with the United Steelworkers. See 678 F.3d 590 (7th Cir. 2012).

Donning-and-doffing time is typically compensable under the FLSA; however, Section 203(o) allows parties to bargain collectively over whether “time spent in changing clothes or washing at the beginning or end of each workday” must be compensated. The employees argued that the definition of “clothes” under Section 203(o) excludes any items designed and used to protect against workplace hazards, while the company argued that the definition includes anything worn on the body. In keeping with Justice Scalia’s originalist approach to statutory construction, the high court rejected both parties’ definitions and instead drew upon dictionaries from the era of Section 203(o)’s enactment, defining the term “clothes” as: “items that are both designed and used to cover the body and are commonly regarded as articles of dress.” Slip op. at 6. Drawing upon the same contemporaneous sources, the Court defined the term “changing clothes” to mean to “substitute” or “alter” one’s dress. Id. at 10.

Applying these definitions, the Court found that the employees’ donning and doffing of certain protective gear fell within the scope of Section 203(o). The Court found that nine items of protective gear at issue fell within the definition of “clothes” and that three items (workers’ glasses, earplugs, and respirators) did not. However, because the “vast majority” of the disputed time was spent donning and doffing the nine items that qualified as “clothes,” the Court ruled that the time workers spent donning and doffing the other three items need not be compensated. Slip op. at 14-15. The opinion instructs lower courts to consider “on the whole” the time spent by workers putting on and taking off clothes versus non-clothes items to determine whether or not that time is non-compensable under Section 203(o). Id. at 14.

Last week, the Supreme Court unanimously ruled that a parens patriae suit brought solely by a state on behalf of its injured citizens is not considered a “mass action” and therefore cannot be removed to federal court under the Class Action Fairness Act of 2005 (“CAFA”). Mississippi ex rel. Hood, Attorney General v. AU Optronics Corp., et al., 571 U.S. __ (2014) (slip opinion available here).

CAFA defines “mass action” as a civil action “in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiff’s claims involve common questions of law or fact.” 28 U.S.C. § 1332(d)(11)(B)(i). Such actions can be removed by defendants from state to federal court. In Hood, a suit brought under state antitrust statutes, the Mississippi Attorney General sued several liquid crystal display makers, including AU Optronics Corp. and LG Display Co., in state court. Defendants removed the case under CAFA, arguing that the lawsuit qualified as a “mass action” because it represented the interests of more than 100 state citizens. The district court held that the suit was a “mass action” under CAFA, but remanded based on CAFA’s “general public” exception. The Fifth Circuit agreed that the suit was a “mass action” because, even though there was but a single named plaintiff, the nonparty consumers on whose behalf the suit was brought were the “real parties in interest” thus satisfying the mass action provision’s numerosity requirement. However, the Fifth Circuit disagreed with the district court that the “general public” exception applied and reversed, concluding that federal jurisdiction under CAFA existed.

The Supreme Court granted certiorari to resolve the circuit split (the Fifth Circuit’s decision had departed from the other circuits’ which have considered the issue). The Court reversed, holding that the mass action provision’s numerosity requirement—which refers to “100 or more persons”—refers only to named plaintiffs. Thus, the Court held that, regardless of how many unnamed individuals potentially stand to benefit from the suit, only named plaintiffs may be counted to establish jurisdiction under CAFA’s mass action provision. Following this ruling, some analysts predict an increase in parens patriae cases being filed by attorneys general in partnership with private plaintiffs firms, with such suits being litigated in state court. Also, the Hood ruling may allow plaintiffs a way to dodge recent SCOTUS decisions allowing companies to enforce contractual class action waivers and arbitration agreements (such as American Express v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013)), because those rulings to not apply to state attorneys general.

In an opinion issued last month, the U.S. District Court for the Western District of Pennsylvania held that failing to strictly adhere to disclosure requirements under the Fair Credit Reporting Act (“FCRA”) can turn a seemingly minor drafting issue into some major liability for employers. In Reardon v. ClosetMaid Corporation, No. 2:08-CV-01730 (W.D. Pa. Dec. 2, 2013) (available here), employer-defendant ClosetMaid had a practice of routinely requesting consumer credit reports of potential employees. Under such circumstances, FCRA requires a potential employer to give an applicant a FCRA disclosure and obtain his or her authorization to pull the report. Under Section 1681b(b)(2)(A)(i) of the FCRA, the disclosure must be a standalone document, but it may also include the authorization.

ClosetMaid presented applicants with a combined FCRA disclosure/authorization form which also contained a liability waiver. Unfortunately for ClosetMaid, the court held that the presence of the waiver rendered the entire document noncompliant under the FCRA. The court also found that the inclusion of the waiver was willful, making the company liable for hefty statutory damages — the estimated 1,800 class members could each receive the greater of his or her actual damages or $1,000 plus attorneys’ fees.

In Williams v. Superior Court of Los Angeles County (Allstate Insurance Company), No. B244043 (Cal. Ct. App. Dec. 6, 2013), non-exempt field adjusters alleged overtime claims based upon a company-wide policy that an adjuster’s workday did not begin until the start time of the day’s first field appointment. The company did not track, and thus failed to compensate adjusters for, time worked off-the-clock prior to the first inspection and after the last inspection of the day. The trial court granted class certification in 2010, but then decertified the class in July 2012 based on the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011). The California Court of Appeal (Second Appellate District, Division Eight) reversed (slip opinion available here).

Williams is consistent with other post-Brinker decisions which have held that that class treatment of California employment claims is usually appropriate when the plaintiff’s theory of liability is linked to a class-wide policy. Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004 (2012). The opinion also indicates that the Dukes analysis, which occurred in the context of a Title VII gender discrimination claim, should not be applied to California wage and hour claims, providing “[w]e agree with those courts that have found Dukes distinguishable in comparable situations.” Slip op. at 9.

The opinion distinguishes Dukes on several points. It notes that the portion of Dukes on which the trial court’s decertification order was based was focused on F.R.C.P. 23(b)(2) (which covers injunctive relief class actions), whereas the plaintiff in the instant case sought damages. The Court explained that “the trial court’s reliance on Dukes analysis of [Rule 23(b)(2)]—a class action seeking injunctive relief—was thus misplaced because appellant’s class members here were seeking principally, if not exclusively, monetary damages.” Slip op. at 11. In addition, the opinion distinguishes Dukes on the ground that it involved certain statutory affirmative defenses which raised individual issues: “Dukes concluded a class proceeding could not deprive Wal-Mart of its right to present those [statutory] defenses. As those . . . defenses required individualized evidence, Dukes disapproved a ‘Trial by Formula’ of Wal-Mart’s affirmative defenses because it prevented Wal-Mart from offering its individualized evidence.” Id. (internal citations omitted).

The opinion also clarifies the phrase “Trial by Formula,” and explains that statistical sampling is a valid method of calculating damages, which has “little, if any, relevance at the certification stage.” Slip op. at 12. Instead, at this stage, “the concern is whether class members have raised a justiciable question applicable to all class members. . . . Here, the question is whether Allstate had a practice of not paying adjusters for off-the-clock time. The answer to that question will apply to the entire class of adjusters.” Id. Additionally, the panel contrasted the difficulty in managing trial of the discrimination claims in Dukes, “which depended on proof of the subjective intents of thousands of individual supervisors” to the current case, where “[plaintiff] asserts there is a companywide policy to deny overtime pay,” which can be shown by objective standards. Id. at 11.

Finally, the Court rejected Allstate’s argument that certification should be denied because Allstate could show some adjusters may not have worked any unpaid overtime, i.e., that there was an absence of commonality due to varying damages among the class members. Slip op. at 18-19. Declining to address the veracity of Allstate’s assertions to avoid an inquiry on the merits, the Court stated that an unlawful company policy can create commonality even if the practice affects class members in differing ways and such differences merely go to the damages that each employee is owed. Id. at 19.

Thus, the panel found that the unpaid overtime claim was properly certified under the Dukes framework and that the claim had been improperly decertified.