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Employees’ claim for wages for time spent traveling between central meeting point and job site is not preempted by the Labor Management Relations Act (LMRA).
A company that was running two projects to install fiber-optic cable between sites in California and Nevada required its employees to meet at a central location every day to receive tools and instructions before transporting them to their work site in employer-provided vehicles. This requirement added up to two hours to many employees’ workdays; their employer did not pay them for this “travel time.”
The employees filed suit in California state court, alleging violations of state wage and hour law. The employer contended that the wage claims could not go forward, because they were preempted by the LMRA, which governs disputes between unionized employees and their employers. In this case, the employer argued that the LMRA trumped California state wage law, because some of the collective bargaining agreements (CBAs) between the company and employees discussed the employer’s obligation to pay employees for travel time from a central location.
The Ninth Circuit disagreed with the employer, finding that the LMRA did not preempt state law in this case. It explained that there is a two-part test for determining if preemption applies:
1. Does the right asserted by the employee arise by virtue of state law, as opposed to a CBA?
2. If the right exists independently of the CBA, is it still necessary to interpret that agreement to determine the result?
In this case, both factors fell in favor of there being no preemption. First, the right to be paid for employer-required travel time between a central meeting point and a job site is a right conferred by state wage and hour law, regardless of whether the employees are also subject to a CBA. Second, the claims in this case did not substantially depend on an interpretation of the terms of the CBA. Several of the CBAs at issue stated that the employer must pay employees for time spent traveling between a central reporting point and the work site, and two other CBAs were completely silent on the issue. However, none of the agreements required interpretation of their terms to determine whether the company was required to pay its employees for travel time -- the requirement came solely from state law. At most, they required a short examination of the terms of the CBA to ensure that they did not contain any explicit waiver of state-law rights. The mere fact that the court may look to the CBA for waiver language does not mean that it has to interpret a term to the extent that the LMRA requires preemption.
This case does a good job of describing how preemption works for unionized employers and employees; a labor and employment attorney can help interpret a CBA to determine whether a dispute is subject to preemption.
-- Paul Freehling, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP
[For more information, see Burnside v. Kiewit Pacific Corporation, -- F.3d --, 2007 WL 1760747 (9th Cir. June 20, 2007)].
University’s dispute-resolution program for nonunionized employees is not a labor organization under federal law.
After Syracuse University established an employee relations program to resolve certain conflicts between nonunionized employees and their supervisors, the International Brotherhood of Teamsters filed an unfair labor practices charge in front of the National Labor Relations Board (NLRB).
If the program were a labor organization under federal law, then Syracuse violated the National Labor Relations Act by establishing the program and telling employees it was a cost-free alternative to union representation. However, if the program was not a labor organization, then Syracuse did not violate federal labor law.
The NLRB found that the employee relations program did not constitute a labor organization. The program was created as a means to resolve disciplinary actions for alleged violations of university rules, policies and procedures. It did not deal with complaints of discrimination, performance evaluations, interpersonal disagreements and management decisions regarding scheduling, assignments or pay. Decisions were rendered by volunteer panelists consisting of both supervisory and nonsupervisory employees. The program had a mediation stage and then a formal hearing stage, with procedures for appeal.
The Board explained that for an entity to be seen as a labor organization, it had to exist, at least in part, for the purpose of dealing with the employer to discuss or negotiate conditions of employment or grievances. The entity also had to represent the employees and their opinions in some way. In this case, these criteria were not met. The program was merely a dispute-resolution mechanism for a particular range of disputes. It did not represent the employees as a group or meet with the employer on their behalf. Therefore, Syracuse did not commit an unfair labor practice by establishing the program.
-- Paul Freehling, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP
[For more information, see Syracuse Univ., 350 N.L.R.B. No. 63 (August 15, 2007)].
Employee’s lack of sleep due to depression was not severe enough to qualify as a disability under the Americans with Disabilities Act (ADA).
A civilian employee of the Army who suffered from depression and insomnia was not entitled to work a compressed schedule as an accommodation for a disability, a federal court recently held.
The employee had used a compressed work schedule at one time, but the Army had eliminated it when the employee experienced attendance problems. He contended his depression was a disability that substantially interfered with his ability to sleep and demanded that his employer reinstate the alternative working arrangements.
The court disagreed that the employee was disabled. It agreed that sleep was in fact a major life activity but held that the employee’s depression and insomnia did not substantially interfere with his ability to sleep. A sleep study he had undergone showed that he averaged 5.5 to 6.5 hours of sleep per night, and while that amount may not be ideal, it was enough to conclude that his depression did not substantially interfere with his ability to sleep. Additionally, even if the employee had been able to show that he was disabled, he could not show that he was qualified to perform his job. The employee demanded as an accommodation that the Army reinstitute his compressed work schedule, but the facts showed that even with this accommodation, the employee had suffered attendance problems. His inability to adhere to the attendance requirement of his job meant that he was not otherwise qualified to perform it.
This case describes the difference between an employee who has an impairment, such as depression, and a disability, such as depression that substantially limits a major life activity. Only the latter is protected by the ADA.
-- Paul Freehling, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP
[For more information, see Nadler v. Harvey, 2007 US App. LEXIS 20272 (11th Cir. August 24, 2007 unpublished)].
Foreman’s statement estimating the number of employees believed to have signed union authorization cards does not create inference of surveillance.
The National Labor Relations Act forbids an employer from conducting surveillance on employees as they engage in protected activity, such as by keeping track of which employees socialize with known union supporters during breaks. However, a Florida piping company did not violate the law when a foreman estimated to a union-supporting employee that approximately 80 percent of employees had signed authorization cards.
The employee was one of two who began soliciting employees to sign authorization cards while they were in the company parking lot and during lunch breaks. The two wore union buttons and did not try to hide their activity. After the foreman’s comment, the union filed an unfair labor practices charge, alleging that the 80 percent comment implied that the company was keeping unlawfully close tabs on those employees who signed cards.
The National Labor Relations Board disagreed. It found that the union-organizing activity at the work site was open and obvious, and the foreman’s comment merely indicated that the company was aware of the campaign’s success, not that it was formally watching and keeping track of union supporters. Unlike other cases where surveillance was found, it was reasonable to conclude that the employer had observed the open activity on its property, not that it was conducting a careful and detailed observation of union activity.
This case shows that there is a fine line between lawful observation and unlawful surveillance of protected union activity. In this case, the employer’s use of a percentage to estimate the number of union supporters almost suggested that it was counting employees who signed cards. However, the fact that the activity was conducted in the open was just enough to make the employer’s observations lawful.
-- Paul Freehling, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP
[For more information, see Sunshine Piping Co., 350 NLRB No. 90 (September 10, 2007)].