How To Make Certain That You Are Not a Victim of Off-Duty Wage Claims
The Goldstein Law Firm
November 2009 Newsletter
“How To Make Certain That You Are Not a Victim of Off-Duty Wage Claims; How To Avoid Good Cheer Turning Into A 2010 Sexual Harassment Lawsuit; and A Single Incident of Failing to Reasonably Accommodate Turns Into a Discrimination Lawsuit"
By: Charles H. Goldstein, Esq.
The Goldstein Law Firm
1. How Do You Make Certain That You Do Not Fall Victim To a Claim By Hourly Employees for Wages Due For Off –Duty-Work?
Recently, in Rutti v. Lojack Corporation, Inc. the United States Court of Appeals for the Ninth Circuit was asked to rule on wage claims for “off-the-clock” work filed by technicians employed by Lojack, Inc. to install and repair car alarms. Rutti sought compensation for time he spent commuting to worksites in Lojack’s vehicles and time spent on preliminary activities performed before he went to work. The lower district court granted Lojack a summary judgment, holding that Rutti’s commute was not compensable as a matter of law and that the preliminary and postliminary activities Rutti claimed were not compensable The Court of Appeals vacated the summary judgment on Rutti’s postliminary activity of being required by Lojack to input on a daily basis what he had done during the day.
Rutti’s duties required him to travel to job sites in a company-owned vehicle and he was paid 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 seeking compensation for the time he was commuting, Rutti sought compensation for certain “off-the-clock” work activities he performed before he left for the first job in the morning and after he returned home. Rutti claimed that Lojack required technicians to be “on call” from 8:00 a.m. until 6:00 p.m., Monday through Friday, and from 8:00 a..m. until 5:00 p.m. on Saturdays.
During this period of time, technicians were required to keep their mobile phones on and answer requests from dispatch to perform additional jobs, but they were permitted to decline the jobs. Rutti also alleged that he spent time in the morning receiving assignments for the day, mapping his routes to the assignments and prioritizing the jobs. This included time spent logging on to a hand held computer device provided by Lojack that informed him of his jobs for the day. In addition, Rutti may have completed some minimal paperwork at home before he left for his first job.
After Rutti returned home in the evening, Rutti was required to upload data about his work to the company. This involved connecting the PDT to the modem, scrolling down the menu on the PDT until he encountered the option labeled” transmit” and selecting this option to initiate the upload process. He was required to use the modem provided by Lojack at his home and to make certain the transmission was successful. Finally, Lojack actually paid one of the installers 15 minutes time per day for transmitting the PDT data at the end of the day.
In its decision regarding Rutti’s claim to be paid for time he was traveling to and from his job in a company vehicle, the Court of Appeals found that the Portal to Portal Act amendment entitled, the “Employee Commuting Flexibility Act”, barred the time from being compensable because the language of the statute states: “use of an employer’s vehicle to commute is not compensable even if it is a condition of employment.” Similarly, California Labor Code section 510(b) provides that “time spent commuting to and from the first place at which an employee’s presence is required by the employer shall not be considered to be a part of a day’s work, when the employee commutes in a vehicle that is owned, leased or subsidized by the employer and is used for the purpose of ridesharing.”
In addition, regarding the issue of whether Rutti should be paid for time during the period of time that he claimed to be “on call at home”, the Court of Appeals had to determine whether the employee was “engaged to wait which is compensable” or “waiting to be engaged” which is not compensable. If the employee is so restricted in their movements during on-call hours, they are considered to be “engaged to wait” and must be paid. The Court decided that the Lojack technicians were not so restricted that they should be paid for their time.
Finally, the Court concluded that the inputting of data into the PDT and coming back to see that the data was transmitted to the main office could meet the test for being compensable because the aggregate amount of compensable time and the regularity of the additional work suggests that the PDT transmissions were an integral part of Rutti’s principal activities. Depending on the amount of time these activities reasonably took each day may not be considered de minimis (10 minutes or less), and therefore would be compensable.
Tips for Preventing Hidden Liabilities From Off-the-Clock-Work:
A. Make certain that you have strictly enforced work rules against hourly employees working off the clock.
B. Do not require hourly employees to perform any work off the clock at home before or after work.
C. If you become aware that hourly employees are performing any work off the clock, advise them that the company does not want them to work off the clock and the company will not pay for this work. Never ignore these claims.
D. Document any hourly employee claim for work off the clock and your rejection of this type of work.
E. Make hourly employees responsible for keeping accurate records of their time so that they cannot make claims for off the clock work that they never listed on their time records.
2. The Holiday Season Is Fast Approaching – How To Avoid Good Cheer Turning Into A 2010 Sexual Harassment Lawsuit
Many years ago, I began to see a disturbing trend in the workplace. This trend involved lawsuits that arose from incidents that occurred at a company sponsored holiday party. Employees sometimes believe that the festive holiday season can be used to excuse behavior that would be unacceptable at any other time of the year. Employers have to be alerted to potential problems and take swift action to avoid them during the holiday season.
Tips to Avoid A Sexual Harassment Lawsuit:
A. Republish your Sexual Harassment Policy and Rules of Conduct during the Holiday Season to make certain that managers and employees are aware that the rules of conduct still apply.
B. Make certain to immediately move-in and stop intoxication should you become aware that anyone at a company sponsored event is becoming unruly.
C. Limit the alcohol that is served at a company sponsored event.
D. If you notice that an employee is intoxicated, offer to have them taken home by a taxi cab or by someone from the company who is not intoxicated.
E. Take all claims of sexual harassment and/or other misconduct, made during the holidays, as seriously as you would at any other time of the year.
F. Have any claims of sexual harassment and/or misconduct investigated immediately and if found to be substantiated, remedied. Do not wait until after the holiday season to act.
3. How Do You Prevent a Lawsuit for Failure to Reasonably Accommodate On A Single Occasion?
The recently decided case of A.M. v. Albertsons, LLC, California Court of Appeals, First Appellate District (2009) examines the issues of failure to reasonably accommodate on a single occasion. AM began working for Albertsons in 1987. In January 2003, A.M. was off work on medical leave because she had been diagnosed with cancer of the tonsils and larynx. She underwent chemotherapy and radiation treatment. The treatment affected her salivary glands, which left her mouth very dry. To counter this, A.M. had to constantly drink water. As a result of the large volumes of water she consumed, she had to frequently go to the restroom to urinate. After she returned to work, A.M. needed to have water with her at all times when she was working and had to be able to go to the restroom when necessary – sometimes as often as every 45 minutes. Normally, Albertsons would not allow its employees to have beverages at the check stand, but when she returned to work, she told her managers what she needed and they told her that this was not a problem. When A.M. needed to go to the bathroom she asked a coworker to take her place.
A new manager began working at A.M.’s store. On the date of the incident that gave rise to the lawsuit, A.M. worked a shift that began at 1:00 p.m. and went until 10:00 p.m. By 7:00 p.m., only three (3) employees were left in the store. A.M., the checker, the courtesy clerk and the manager. The manager had never worked with A.M. and there was no evidence that the manager had knowledge of A.M.’s disability or the accommodation that had been granted by the previous store managers. About 8:00 p.m. A.M. saw the manager that told her that she needed to take a break. She did not mention needing to use the bathroom. A delivery truck arrived so the manager asked A.M. if she could wait to take her break. A.M. agreed to do so.
A while later, A.M. had a line of customers waiting for her at her check stand. She called the manager on the store intercom to say that she needed to go to the bathroom. The manager explained that she was unable to relieve A.M. because the manager was unloading merchandise. She told A.M. that she would have to wait. By this time A.M. felt that she really needed to visit the restroom. Seven to ten minutes later, A.M. still had customers waiting for her to check them out. She called the manager on the intercom again, explaining that she really needed to visit the restroom. Again, the manager said that she was busy and unable to come to the front of the store.
Unable to control herself, A.M. urinated while standing at the check stand. She was having her menstrual cycle so she was very wet with both urine and blood. She felt shaky and humiliated, even though she did not think that customers saw that she had urinated on herself. A.M told another employee what had happened and asked him to tell the manager. When the employee returned from telling the manager what had happened, he reported that the manager said that she was still busy and that A.M. had to wait.
When the manager finally went to the front of the store, the manager asked A.M. if she was taking a break. A.M. told her manager that she was going home. A.M. left the check stand and walked into the bathroom to clean herself. Sobbing, she called her husband to tell him what had happened, changed into oversize pants that the other employee had found for her, and left the store. This set out facts caused A.M. to suffer a series of psychotic events that caused her to become deeply depressed. A.M. was off work due to this condition for a long period of time, but finally returned to work and regularly received bathroom breaks at the store whenever she asked for them.
A.M. sued Albertsons claiming that the store violated the California Fair Employment and Housing Act (“FEHA”) provisions relating to failure to accommodate a disabled employee. In its defense, Albertsons argued that it had not failed to reasonably accommodate A.M. because prior to the date of the incident, it had reasonably accommodated her disability for many months. Albertsons argued that it had fulfilled its obligation to accommodate A.M. and that incident occurred because A.M. simply did not leave her check stand to use the restroom or at least mention to the manager that she had been granted an accommodation. Therefore, Albertson asserted that A.M. had a continuing duty to communicate and act reasonably with respect to her accommodation. The Court rejected this argument and found that once a reasonable accommodation is agreed upon following the interactive good faith process, an employer cannot fail to provide the reasonable accommodation and that A.M. had no continuing duty to communicate and act reasonably with respect to her accommodation by telling the store manager about her accommodation.
Finally, Albertsons argued that a single failure to reasonably accommodate was trivial and that FEHA allows at least one (1) failure to accommodate. In response to this argument, the Court stated “… we note that Albertsons argued this possibility to the jury. By its award to A.M. of $200,000.00 in damages, we infer that it found the failure to accommodate to be substantial, not trivial.”
Tips on How to Reasonably Accommodate a Disabled Employee:
A. Make certain that new managers and supervisors are made aware of any employees who have been given a reasonable accommodation and the nature of the accommodation.
B. Train your managers on how to deal with disabled employees and preventing discrimination of disabled employees and job applicants.
C. Train your managers on how to implement reasonable accommodations.
D. Make certain that reasonable accommodations are documented in employee records.
The Goldstein Law Firm
8912 Burton Way
Beverly Hills, California 90211
Telephone: (310) 553-4746
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