OFCCP Affirmative Action Audits on the Horizon

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The OFCCP is about to commence audits of federal contractors to ensure compliance with their affirmative action obligations.

The Office of Federal Contractor Compliance Programs (“OFCCP”) is focusing on the requirement that federal contractors adopt and annually update affirmative action plans. On August 2, 2018, the OFCCP’s Acting Director, Craig Leen, participated in a public discussion during which he reviewed the current compliance process for contractors.   Currently, contractors simply “check the box” to certify compliance with affirmative action obligations in the General Services Administration’s (“GSA’s”) System for Award Management (“SAM”) registration system.  Mr. Leen expressed concern that many contractors checking the box do not actually possess a valid affirmative action plan.

Mr. Leen’s comments were followed-up by a new OFCCP directive on August 24, 2018:  Directive 2018-07.  The subject of that directive is the commencement of an “Affirmative Action Program Verification Initiative.”  OFCCP “is concerned that many federal contractors are not fulfilling their legal duty to develop and maintain AAPs [Affirmative Action Plans] and update them on an annual basis.”  Therefore,  Directive 2018-07 requires OFCCP to develop a comprehensive program to verify that federal contractors are complying with affirmative action obligations on a yearly basis.  That program will include:

• Development of a process whereby contractors would certify on a yearly basis
compliance with AAP requirements.
• Inclusion of a criterion in the neutral scheduling methodology increasing the
likelihood of compliance reviews for contractors that have not certified compliance
with the AAP requirements.
• Compliance checks to verify contractor compliance with AAP requirements.
• Requesting proffer of the AAP by contractors when requesting extensions of time
to provide support data in response to a scheduling letter.
• Development of information technology to collect and facilitate review of AAPs
provided by federal contractors

Directive 2018-07 does not provide a timeline for implementation.  Nevertheless, it is abundantly clear that compliance audits are coming.  Therefore, federal contractors should carefully review their affirmative action plans for compliance, and make sure that those plan are updated annually.

An Employee’s Insistence on Enforcing “Rules” Can Be Insubordination.

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Employees who disregard workplace directives in favor of their interpretation of the “rules” may be insubordinate.

I frequently encounter employees who think that workplace rules make them bulletproof.  Usually, these employees have memorized their employer’s handbook and know it better than the Human Resources staff.  They then insist that any workplace action must be taken in compliance with the “rules.”  And, they think that any action which contradicts the “rules” must be invalid.  One employee recently learned the hard way that his insistence upon the “rules” amounted to insubordination, which justified termination of his employment.  Veasy v. Sheriff of Palm Beach County, No. 17-13174, 2018 WL 3868674 (11th Cir. Aug. 14, 2018).

Wilbur Veasy was employed as a corrections officer by the Palm Beach County Sheriff for 25 years.  Over the course of those 25 years, he was written-up for insubordination six times.  He is African-American.  On February 5, 2013, Mr. Veasy was directed to submit to a random urine drug screen.  In accordance with written policy, Mr. Veasy appeared at the Sheriff’s Internal Affairs Office to submit his urine sample.  But, despite the language of the written policy, the Sheriff’s Office had not accepted urine samples at Internal Affairs for more than four (4) years.  Thus, upon arrival, Mr. Veasy was directed to drive his personal car to a third-party contractor’s office to submit a sample.

Mr. Veasy refused.  He insisted that the Sheriff Department’s policy did not require him to drive his personal vehicle to a testing facility.  Mr. Veasy requested an “official vehicle” to drive to the testing facility.  A sergeant denied Mr. Veasy’s request, and ordered that Mr. Veasy drive to the testing facility.  When Mr. Veasy refused, the matter was referred to the Sheriff.    The Sheriff gave Mr. Veasy two options: either drive to the test site in his personal vehicle or be placed on administrative leave.  Mr. Veasy responded that his “2007 red four door Tacoma is not going,” and the  Sheriff placed him on administrative leave.  Mr. Veasy was ultimately terminated for refusing to comply with a direct order and for refusing to submit to a random drug screen.

Mr. Veasy sued for race discrimination.  The Eleventh Circuit assumed that he could prove a basic (prima facie) case of discrimination.  But, Mr. Veasy could not rebut the Sheriff’s legitimate nondiscriminatory reason for termination:  insubordination.  Mr. Veasy tried to argue that he had not actually violated a work rule.  After all, the Sheriff’s written policy said to arrive at Internal Affairs ready to submit a sample, and he did just that.  The Eleventh Circuit was not persuaded.  The issue was not whether Mr. Veasy violated the written rule, but whether he was insubordinate when he refused two direct orders to travel to the third-party contractor’s office.  The Eleventh Circuit found he was insubordinate, and affirmed dismissal of his discrimination claim.

Overzealous employers might be tempted to read Veazy to permit them to terminate an employee for insubordination any time the employee refuses a direct order.  To quote Lee Corso:  “Not so fast, my friend.”  There are numerous factors that need to be considered before any employee is terminated.  Probably, the most important factor is treatment of other similar employees who refuse direct orders.  So, if an employer only terminates insubordinate employees in a protected class, then the termination might be impermissible.  Veazy is more of a cautionary tale for employees to be careful about their insistence on work rules.

 

 

Federal Contractors: OFCCP Issues Directive on Religious Freedom

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The OFCCP issued a directive requiring recognition of religious freedom.

The Office of Federal Contract Compliance Programs (“OFCCP”) has issued a new directive reminding its staff members of their obligation to recognize the religious freedom of federal contractors.  Here’s a link to the new directive:  Directive 2018-3.  Here’s a link the OFCCP press release about the directive:  Press Release.

The directive was issued in response to several recent decisions from the United States Supreme Court on religious freedom, and President Trump’s executive order which “reminded the federal government of its duty to protect religious exercise — and not to impede it.”  Thus, the OFFCP reminded its staff that:

• They “cannot act in a manner that passes judgment upon or presupposes the
illegitimacy ofreligious beliefs and practices” and must “proceed in a manner
neutral toward and tolerant of … religious beliefs.”
• They cannot “condition the availability of [opportunities] upon a recipient’s
willingness to surrender his [ or her] religiously impelled status. ”
• “[A] federal regulation’s restriction on the activities of a for-profit closely held
corporation must comply with [the Religious Freedom Restoration Act].”
• They must permit “faith-based and community organizations, to the fullest
opportunity permitted by law, to compete on a level playing field for …
[Federal] contracts.”
• They must respect the right of “religious people and institutions … to practice
their faith without fear of discrimination or retaliation by the Federal
Government. “

As a practical matter, the new OFCCP directive does not provide much clarity on a key religious issue:  whether government contractors can discriminate against LGBT persons based upon religious beliefs.  Indeed, I previously wrote that President Trump will not rescind President Obama’s Executive Order prohibiting LGBT discrimination:  Trump and LGBT.  For now, government contractors should proceed cautiously if they want take employment actions based upon religious beliefs.

Employer Pays $25K in Arbitration Admin. Fees for $7K FLSA Claim.

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Sometimes, the fees associated with arbitration will cost more than the actual claim made by the employee.

Just because you’ve got the right to arbitrate a claim doesn’t mean that you have to arbitrate that claim.  If you’ve read my blog before, you know that arbitration is a great form of alternative dispute resolution for many claims.  But, employers should think carefully before arbitrating employment disputes:  Arbitration Isn’t Always Good for Employers.  In conducting that analysis, one factor for employers to consider is the amount of fees that they will pay to an arbitrator in comparison to the value of the employee’s claim.

In Hernandez v. Acosta Tractors, Inc., No. 17-13057, 2018 WL 3761126 (11th Cir. Aug. 8, 2018), the Eleventh Circuit Court of Appeals confronted an employer who was having second-thoughts about the wisdom of arbitrating a claim under the Fair Labor Standards Act.  (“FLSA”).  Julio Hernandez claimed that his employer, Acosta Tractors, failed to pay him overtime.  Mr. Hernandez sued in federal court and Acosta Tractors moved to dismiss the case because he signed an arbitration agreement.  The judge agreed, and dismissed Mr. Hernandez’s case in favor of arbitration.

Acosta Tractors soon began to experience sticker-shock with the arbitration process.  Mr. Hernandez was one of three employees who were arbitrating FLSA claims.  Acosta Tractors asked the arbitrator to consolidate the three proceedings into one, but the arbitrator refused.  The arbitrator also ordered 29 depositions to be taken in the three separate proceedings.

At this point, I need to be clear:  an arbitrator is essentially a paid judge.  Every time the arbitrator works on a case, he bills the parties for his work — usually at rates of $350.00 per hour or more.  Additionally, if a third-party organization, like the American Arbitration Association is involved, they will charge for their work on the case.  As a result, administrative fees quickly add up.

In Acosta Tractors’ case, it received bills for administrative fees in the amount of $33,100 and $43,640 in the other two cases, and $25,875 in Mr. Hernandez’s case.  At this point, faced with over $100,000 in administrative fees, Acosta Tractors cried “uncle,” and tried to go back to federal court.  It refused to pay the arbitration fees, and asked the federal judge to re-assert control over the case.  But, the judge was not pleased.  He found that Acosta Tractor defaulted in arbitration, and thus was also in default in federal court.  Ultimately, the judge entered a default judgment in Mr. Hernandez’s favor in the amount of $7,293.00.

On appeal, the Eleventh Circuit vacated the judge’s ruling for further consideration.    The Eleventh Circuit found that the trial judge should not have entered a default judgment based solely upon the failure to pay administrative fees in arbitration.  Instead, the Eleventh Circuit directed the trial judge to determine whether Acosta Tractors “acted in bad faith in choosing not to pay its arbitration fees.”  The court suggested that a “good faith inability to afford the arbitration fees” would be a factor in Acosta Tractors’ favor, but also noted that its decision “to abandon arbitration after getting adverse rulings from the arbitrator certainly looks like forum shopping.”

To me, the biggest lesson for employers to learn from Hernandez is:  “look before you leap.”  Arbitration is going to be expensive for everybody involved.  In Mr. Hernandez’s case, Acosta Tractors was billed $25,875 in administrative fees on an overtime claim that was worth $7,293.  With the benefit of hindsight, it looks like Acosta Tractors could have saved money by keeping this FLSA case in federal court.

11th Circuit Extends Epic Systems to Interrogation Claims

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If an employee waives the right to a collective action, an employer does not violate the NLRA by interrogating the employee about conversations concerning collective actions.

On May 21, 2018, the United States Supreme Court issued its decision in Epic Systems Corp. v. Lewis, 138 S.Ct. 1612 (2018).  The Court held that employer-employee agreements do not violate the National Labor Relations Act (“NLRA”), even if they contain class and collective action waivers and stipulate that employment disputes must resolved by individualized arbitration.  On July 31, 2018, the Eleventh Circuit Court of Appeals logically extended Epic Systems to interrogation claims under the NLRA.  See Franks v. National Labor Relations Board, No. 16-10644, 2018 WL 3640818 (Jul. 31, 2018).

While employed by Samsung Electronics America (“Samsung”), Jorgie Franks spoke to multiple co-workers about the possibility of filing a collective action against Samsung for failing to pay overtime.  Those conversations made their way to ear of Samsung’s Human Resources Business Partner, who called and e-mailed Franks about her communications with co-workers.

In January 2015, long before the Supreme Court released Epic Systems, Franks filed a claim with the National Labor Relations Board asserting three violations of the NLRA.  First, she claimed that her employment agreement impermissibly required her to waive class and collective actions.  Second, she claimed that Samsung’s Human Resources Business Partner interrogated her in violation of the NLRA.  Finally, she claimed that the Human Resources Business Partner wrongfully issued a “do not talk order.”  On February 3, 2016, the NLRB found in Ms. Franks’s favor on the first two claims, but ruled that Samsung did not issue a “do not talk order.”

Samsung and Franks both appealed to the Eleventh Circuit, but the focus of the Franks opinion was the NLRA interrogation claim.  The Eleventh Circuit relied upon Epic Systems to quickly reverse the NLRB on the issue of waiving collection action rights.  Then, the court focused on the interplay between Epic Systems and Section 8(a)(1) of the NLRA.  “An employer violates section 8(a)(1) of the Act by coercively interrogating its employees about their [protected] activities.”  “An interrogation is coercive if, in light of ‘all the surrounding circumstances, ‘its probable effect’ tends to interfere with the employees exercise of their [rights under § 7 of the NLRA.]”

In Franks, the Section 7 right in question was “the ‘protected activity of bringing a collective action lawsuit’ against Samsung.”  Yet, under Epic Systems, “Franks validly forfeited the right to pursue a collective action against Samsung when she signed Samsung’s employment agreement.”  “Put simply, Franks’ interference claim fails because she had already given up the very right with which Samsung allegedly interfered.”

In a footnote, the Eleventh Circuit was careful to limit its decision to “the protected activity of filing and participating in a collective action lawsuit.”  Nevertheless, Franks is an important extension of Epic Systems and suggests that employees can be interrogated about any NLRA rights that they have waived in their employment agreements.

 

When is an Employer not an “Employer”? FLSA v. Common Law

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The term “employer” has different meanings under the FLSA and common law.

Some British playwrite once wrote:  “That which we call a rose by any other name would smell as sweet.”  I’ve always interpreted that line to suggest that names are not nearly as important as substance or context.  The Eleventh Circuit recently issued an entertaining opinion recognizing this important issue in the employment law arena.  See Garcia-Celestino v. Ruize Harvesting, Inc., No. 17-12866, 2018 WL 3652010 (11th Cir. Aug. 2, 2018)(“Garcia-Celestino II“).  In Garcia-Celestino II, the Court was required to examine the intricacies of the term “employer” — and discuss the differences in that term under the Fair Labor Standards Act (“FLSA”) and the common law.

Judge Rosenbaum began his opinion:  “The English language contains many examples of homonyms —  ‘words that have the same sound and often the same spelling but differ in meaning’ ….”  He then suggested that the terms “employer” and “control” are “legal homonyms” that have “different meanings under the FLSA and the common law.”

Judge Rosenbaum also noted that this was the second time that the case came before the Eleventh Circuit.  Indeed, I wrote about the first Garcia-Celestino opinion, and the significance of control over contract labor here:  Migrant Farm Workers and the FLSA.  In the first Garcia-Celestino opinion, the Eleventh Circuit found that orchard owner Consolidated Citrus was a joint employer under the FLSA with Ruiz Harvesting — the company from which it contracted migrant labor.  But, the court remanded the case to the trial court to determine if Consolidated Citrus was also a joint employer for breach-of-contract purposes under the common law.  The trial court concluded that Consolidated Citrus was an “employer” for purposes of the common law.

Judge Rosenbaum’s opinion in Garcia-Celestino II reversed the trial court and found that Consolidated Citrus was not a joint employer under a breach of contract theory.  In short, Consolidated Citrus was an “employer” for purposes of the FLSA, but not for breach of contract. Under both the FLSA and the common law, “control” over a worker is important for determining whether her or she is employed.  But, the FLSA created “one of the broadest possible delineations of the employer-employee relationship.”  In contrast, a common law analysis “results in a much narrower analytical approach.”  “Under the common law, we must look at only who controls ‘the manner and means’ and ‘the details of the work,’ giving no consideration to ‘mere economic control or control over the end result of the performance.'”

Judge Rosenbaum then conducted an extensive analysis which largely focused on control over the “manner and means” of the migrant workers’ labor.  At the end of that analysis, he (along with Judge Tjoflat and Judge Ungaro) concluded that Consolidated Citrus was not a joint employer of the migrant workers for purposes of the common law.

The Garcia-Celestino saga is a nice microcosm of employment law.  Facts matter.  Claims matter.  The applicable law matters.  Under a single set of facts, a company can be liable as an “employer” under one claim (FLSA), but not liable under another (breach of contract).   With a good understanding of these intricacies, some employers can emerge from a lawsuit smelling like a rose.

 

 

Can Employees Assaulted On The Job Get Workers Compensation?

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The Alabama Workers’ Compensation Act covers assaults on employees, if the assault is the result of the victim’s status as an employee.

An employee assaulted on-the-job is entitled to benefits under the Alabama Workers’ Compensation Act if the assault occurs “because of his or her status as an employee or because of his or her employment.”  Lawler and Cole v. Cole, No. 2170162, 2018 WL 3406880 (Ala. Civ. App. Jul. 13, 2018).  The Alabama Court of Civil Appeals reached that decision in a case involving the tragic murder of an accountant.

Linda Cole was the long-time accountant for Jimmy Dale Cooper.  In 2007 or 2008, Cooper began to be audited for sales tax issues, and he ceased to be a client of Ms. Cole.  Those sales tax issues were not resolved in Mr. Cooper’s favor.  It appears that Mr. Cooper may have suffered from mental illness and blamed his tax issues on a number of people, including the accountant he employed after Ms. Cole, his attorney, and a former business partner.  On February 10, 2016, he held the attorney hostage and forced the attorney to invite the former business partner to his office.  While holding the attorney hostage, Cooper told the attorney that he blamed Ms. Cole for his tax problems.  Cooper tried to shoot the former business partner, and his current accountant.  Cooper then went to Ms. Cole’s office and confronted her.  He told her: “You have f***** my taxes up for the last time.”  Ms. Cole responded: “Jimmy, please don’t do this” and “I will help you, we will do what we can to fix … this mess, but I will help you.”   Cooper then shot and killed Ms. Cole.

The insurance company for Ms. Cole’s employer declined to pay workers’ compensation benefits related to the incident, so Ms. Cole’s widow file suit.  A trial court in Marion County found that the assault was covered by the Workers’ Compensation Act, and the insurance company appealed.

Under the Workers’ Compensation Act, benefits are provided only if an employee suffers an “injury” that arises out of or in the course of employment.  And, the Act provides that “[i]njury does not include an injury caused by the act of a third person … intended to injure the employee because of reasons personal to him or her and not directed against him or her as an employee or because of his or her employment.”  Ala. Code §25-5-1(9).  The Court of Civil Appeals interpreted that language to mean what it says:  “an intentional assault does not arise out of the employment if it is committed upon an employee because of reasons personal to the employee and not because of his or her status as an employee or because of his or her employment.”

The Court focused on “whether the rational mind can trace the assault on the employee to her status as an employee or because of her employment as opposed to some personal characteristic of the employee.”  The Court relied upon the comments made by Mr. Cooper and Ms. Cole to find that her murder occurred because of her employment as an accountant.

The Court of Civil Appeals also rejected two arguments by the insurance company.  First, the company argued that the assault was not compensable because there was no evidence that Ms. Cole actually caused Mr. Cooper’s tax problems.  But, the court found the issue was not whether she actually caused the problems, but whether she was attacked “because of her status as his former accountant and because of her employment.”  The insurance company also argued that Cooper’s assault was a “personal attack because of the long passage of time since the professional relationship between Cooper and the employee ended. ”  Nevertheless, the court focused on whether there was a “personal” or work-related dispute, and concluded the “undisputed evidence indicates that, at all times, Cooper’s grievance with the employee remained rooted in their working, not personal, relationship.”

Complaints About Homosexual Discrimination Not Protected by Title VII

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Employees who complain about homosexual discrimination are not protected by Title VII’s anti-retaliation provisions.

In some areas of the country, federal courts have interpreted Title VII of the Civil Rights Act of 1964 to prohibit discrimination on the base of sexual orientation, including homosexuality.  However, the Eleventh Circuit Court of Appeals, which interprets federal law for Alabama,  has held that sexual orientation is not protected by Title VII.  In December of 2017, the United States Supreme Court declined to review the Eleventh Circuit’s position on this issue.  Here’s a link to a post that I wrote on that decision:  Supreme Court Won’t Review 11th Circuit LGBT Decision.

Although sexual orientation is not protected in the Eleventh Circuit, the court has prohibited discrimination against employees for “failure to conform to gender stereotypes.”  Here’s a link to a previous post that discusses the issue:  LGBT Issues in the Workplace.  In short, employers in the Eleventh Circuit can discriminate based upon sexual orientation, but arguably can’t discriminate because an employee’s manner, attributes, attire, etc. don’t comply with gender stereotypes.  As a result, homosexual employees who suffer discrimination are forced to file claims alleging that they suffered discrimination, not because of their sexual orientation, but because of their failure to conform to gender stereotypes.

In Brakeman v. BBVA Compass, No. 2:16-01344-JEO, 2018 WL 3328909 (N.D. Ala. Jul. 6, 2018), Chief United States Magistrate Judge John Ott discussed these issues in the context of a retaliation claim.  Krystal Brakeman is gay and married to another woman.  She claimed that a co-worker made statements to the effect that Brakeman needed to “talk to Jesus” and “get a man in her life.”  Ms. Brakeman complained to a supervisor about those statements.  Two months later, she was terminated from employment.  Her employer asserted that the termination was based upon separate improper conduct by Ms. Brakeman and a lack of truthfulness during an investigation of that conduct.

Ms. Brakeman sued and asserted several theories, including a claim that she was fired in retaliation for complaining about the homosexual-oriented comments of her co-worker.  Because homosexual discrimination is not prohibited in the Eleventh Circuit, complaints about homosexual discrimination are not protected.  Therefore, Ms. Brakeman argued that she suffered retaliation for complaining about a failure to comply with gender stereotypes.  Judge Ott refused to accept that argument, finding that “a plaintiff cannot ‘bootstrap’ an invalid sexual orientation claim into a viable gender stereotyping claim by asserting that homosexuals failed to comply with gender stereotypes because of their homosexuality, real or perceived. …. To hold otherwise ‘would mean that every case of sexual orientation discrimination would translate into a triable case of gender stereotyping.'”

In short, Judge Ott found that Ms. Brakeman was really complaining to her supervisor about homosexual discrimination.  And, because homosexual discrimination is not prohibited in the Eleventh Circuit, Ms. Brakeman’s complaints were not protected by Title VII’s anti-retaliation provisions.

At this point, there do not appear to be any decisions from the Eleventh Circuit itself addressing retaliation and gender stereotyping.  Nevertheless, Judge Ott’s analysis appears to be a natural extension of the Eleventh Circuit’s position on sexual orientation discrimination.  As a result, at least in the Eleventh Circuit, complaints about sexual orientation discrimination are unlikely to be protected by Title VII’s anti-retaliation provisions.

ADA: Reasonable Accommodations Have Limits

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The ADA only requires reasonable accommodations, not the accommodation of an employee’s choosing.

A recent decision from the Northern District of Alabama reinforces that the Americans with Disabilities Act (“ADA”) does not guarantee disabled employees an accommodation of their choosing.  Instead, accommodations offered by an employer only need to be “reasonable.” See Maddox v. ALDOT, No. 2:15-cv-00312-MHH, 2018 WL 3241212 (N.D. Ala. Jul. 3, 2018).

In Maddox, the employee suffered from allergies to dust and asphalt, and also worked for the Alabama Department of Transportation (“ALDOT”).  ALDOT provided numerous accommodations to Ms. Maddox.  ALDOT allowed her to leave work anytime asphalt fumes affected her breathing.  It provided an air purifier and replaced the air ventilation system in Ms. Maddox’s building.  ALDOT even relocated an asphalt lab to the rear of the building in which Ms. Maddox worked.  ALDOT also offered to transfer Ms. Maddox to a different office in Shelby County, but Ms. Maddox declined and requested a transfer to ALDOT’s main office in Montgomery.  However, the main office was undergoing mold remediation and ALDOT would only permit the transfer if her doctor stated that the main office would be a safe environment.  When Ms. Maddox’s doctor declined to issue such an opinion, she argued that ALDOT should allow her to take sick leave until a clean-air environment could be created.  ALDOT declined to provide such leave.

Ms. Maddox sued under the ADA claiming that ALDOT failed to provide a reasonable accommodation for her alleged disability.  For purposes of deciding the case, United States District Court Judge Madeline Hughes Haikala assumed that the allergies amounted to a “disability” under the ADA.  Nevertheless, Judge Haikala focused upon the fact that the ADA only requires “reasonable accommodations.”  Indeed, it is well-established that a qualified individual with a disability is “not entitled to the accommodation of her choice, but only a reasonable accommodation.”  Stewart v. Happy Herman’s Chesire Bridge, Inc., 117 F.3d 1278, 1286 (11th Cir. 1997).

Judge Haikala noted her sympathy with Ms. Maddox’s frustration, but held that the ADA “does not require an employee to create an environment completely free of fumes, dust, mold or other allergens to accommodate an employee’s health condition.”  Judge Haikala found that ALDOT’s proffered accommodations were reasonable; therefore, she dismissed Ms. Maddox’s case.

Maddox provides excellent guidance for employers struggling to accommodate employees’ health conditions.  In most cases, employers should follow ALDOT’s lead and attempt to find some solution/accommodation for the employees’ health issues.  But, at some point, requested accommodations cross the line from “reasonable” to unreasonable.  In those cases, the employer’s other efforts to provide reasonable accommodations can help prove that the employee’s requested accommodation is not reasonable.

****For lawyers/lovers of the law****  Maddox was decided under Section 504 of the Rehabilitation Act of 1973.  In employment cases, the standards of the Rehabilitation Act are the same as the standards applied under Title I of the ADA.

 

FLSA: Law Enforcement Not Entitled to Pay for Certain Activities

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Under the FLSA, law enforcement officers are not entitled to compensation for the time they spend donning protective gear before work, or for the time they spend commuting to and from work.

The Eleventh Circuit has found that law enforcement officers are not entitled to pay for certain activities that occur before and after their work shifts.  See Llorca v. Sheriff, Collier County, No. 17-11377, 2018 WL 3134544 (11th Cir. Jun. 27, 2018).  In particular, the Fair Labor Standards Act (“FLSA”) does not require compensation to law enforcement for:  (1) putting on and taking off protective equipment (“donning and doffing”) before and after a work shift; or, (2) commuting to and from work in a marked patrol vehicle.

The Portal-to-Portal Act of 1947, as amended by the Employee Commuting Flexibility Act of 1996, provides that an employer is not required to pay employees for time travelling to and from work, or for activities that are “preliminary to or postliminary to” the “principal activity” of the job.  The United States Supreme Court has further found that preliminary or postliminary work is only compensable if it is an “integral and indispensable part of the principal activities.”  The Eleventh Circuit’s decision in Llorca focused on the “integral” and “indispensable” standards.

The employees in Llorca were Deputy Sheriffs in Collier and Lee County, Florida.  They were required to arrive at work wearing the following protective gear:  a “duty belt,” a radio case, pepper mace, a baton strap, a magazine pouch, a radio, a flashlight, handcuffs, a holster, a first-responders pouch, and a ballistics vest.  They also commuted to and from work in marked patrol vehicles.  The Sheriffs required their deputies to listen to radio calls while commuting, and respond to major calls and emergencies.  The deputies were also required to observe the roads for traffic violations and engage in general traffic law enforcement.  While the deputies were compensated for any time responding to emergencies and enforcing traffic laws, they were not compensated for time commuting while listening to their radios and observing the roads.

The Eleventh Circuit found that donning and doffing protective gear is not “integral” to a law enforcement officer’s principal activities.  The gear itself might be “indispensable” to a deputy.  But, the donning and doffing process is not an intrinsic element of law enforcement.  The Court was particularly persuaded by a 2006  Department of Labor memorandum finding that donning and doffing might be compensable “where the changing of clothes on the employer’s premises is required by law, by rules of the employer, or by the nature of the work.”  But, “if employees have the option and the ability to change into the required gear at home, changing into that gear is not a principal activity, even when it takes place at the plant.”

The Eleventh Circuit found that listening to the radio for calls and general traffic monitoring were not “indispensable” activities for deputies.  The court first relied upon a policy argument, noting that “traffic violations multiply if there is an appearance among the public that traffic enforcement is law.  Thus, it would be highly inappropriate for uniformed officers to drive to and from work in marked patrol vehicles without observing the roads for traffic violations and other incidents.”  The Court also relied upon a DOL regulation holding that a police officer “is not working during the travel time even where the radio must be left on so that the officer can respond to emergency calls.”  29 C.F.R. § 553.221(f).

The Llorca opinion is a significant win for employers in law enforcement.  Additionally, it provides additional guidance to all employers on “donning and doffing” requirements.