Significant 2005 Employment Law Decisions
| Publication year | 2021 |
| Pages | 117 |
80 CBJ 117. SIGNIFICANT 2005 EMPLOYMENT LAW DECISIONS
The appellate courts (U.S. Supreme, Second Circuit, Connecticut Supreme and Appellate) resolved a number of significant employment law issues in 2005. Both the United States and Connecticut Supreme Courts decided important "when does work start" issues under the wage and hour laws. The United States Supreme Court ruled on whether the Age Discrimination in Employment Act prohibited disparate impact discrimination. The state Supreme Court, in its first case involving the Family and Medical Leave Act, explained the role of employer intent in so called "interference" claims. Further, in a series of employment discrimination decisions, the state Supreme Court added to its jurisprudence regarding burden of proof, considered the admissibility of lay opinion concerning the employer's reasons for termination, and ruled on whether an applicant's failure to satisfy an objective job requirement, in this case, professional licensing, was not only a legitimate non-discriminatory reason under the familiar burden-shifting analysis, but also whether it entitled the employer to judgment as a matter of law. The Second Circuit, among other decisions, decided an important duty to mitigate case and ruled on the extent of Title VII's anti-retaliation provision. Finally, the Appellate Court issued an important ruling concerning the evidence that can prove the various types of pregnancy discrimination that the state Fair Employment Practices Act prohibits and interesting issues arising under the common law tort of negligent infliction of emotional distress.
This article surveys these and other significant 2005 employment law decisions.
I. WAGE AND HOUR DECISIONS
IBP, Inc. v. Alvarez(fn1) is the United States Supreme Court's "when work begins" decision. The specific issue was
* Both of the Hartford Bar.
1 126 S.Ct. 514, 163 L.Ed.2d 288 (2005).
whether the time employees spent walking to or from their stations after donning and doffing protective clothing was within the coverage of the Fair Labor Standards Act (FLSA); i.e., did it count as time worked for the application of the Act's minimum wage and overtime pay provisions.
By way of background, the Court had ruled in 1946 that the term "workweek" in the FLSA included time walking from time clocks near a factory entrance to workstations in the factory. Anderson v. Mt. Clemens Pottery Co.(fn2) Displeased with this ruling, Congress passed the Portal-toPortal Act the following year. The Portal-to Portal Act amended the FLSA to exempt from its coverage (1) walking to and from an employee's "principal activity or activities" and (2) activities that are "preliminary or postliminary" to "principal activity or activities." It did not otherwise change the Court's descriptions of "work" and "workweek" or define "workday."
In deciding this case, the Court utilized its prior precedent in Steiner v. Mitchel(fn3) in which it held that workers in a battery plant had a statutory right to compensation for the
...time incident to changing clothes at the beginning of the shift and showering at the end, where they must make extensive use of dangerously caustic and toxic materials, and are compelled by circumstances, including vital considerations of health and hygiene, to change clothes and to shower in facilities which state law requires their employers to pro-
vide .....(fn4)
The Court there distinguished "changing clothes and showering under normal conditions" and stressed the important health and safety risks associated with the production of batteries.(fn5) It also concluded that the changing of clothes and showering were "'integral and indispensable'" to "'principal activities'" of the job and therefore not excluded from FLSA coverage precisely because such activities are themselves "principal activities."(fn6)
(fn2)328 U.S. 680, 66 S. Ct. 1187,90 L. Ed. 1515 (1946).
3 350 U.S. 247, 248,76 S.Ct. 330, 100 L.Ed. 267 (1956).
4 Id. at 248. (fn5)Id. at 249. (fn6)Id. at 253.
IBP is a large producer of fresh beef, pork, and related products. Its production employees were required to wear extensive protective gear which took time to don and doff. In 1999, IBP employees filed a class action to recover compensation for preproduction and postproduction work, including the time spent donning and doffing protective gear, as well as the time spent walking between the locker rooms and the production floor before and after their assigned shifts.
Since IBP conceded that the donning and doffing of unique protective gear were "principal activities" under
Section 4 of the Portal-to-Portal Act,(fn7) the only question
before the court was whether "postdonning and predoffing walking time" was compensable under the FLSA.(fn8) IBP insisted it was not. The Court disagreed.
Calling IBP's position "novel," the Court held that "any activity that is 'integral and indispensable' to the 'principal activity' is itself a 'principal activity'" and is covered under the FLSA."(fn9) "Moreover, during a continuous workday, any walking time that occurs after the beginning of the employee's first principal activity and before the end of the employee's last principal activity is excluded from the scope of (the Portal to Portal Act), and as a result is covered by the FLSA."(fn10) Thus, once an employee has donned his protective gear in the locker room, the time spent walking to his principal place of activity and from this place back to the locker room to doff his protective gear was covered under FLSA and, therefore, compensable.
IBP is actually two consolidated cases. The other case(fn11) was brought by employees and former employees of a poultry processing plant in Maine, who sued their employer for wages relating to time waiting to don and doff protective gear. The Court held that the predoffing waiting time was covered under the FLSA and, therefore, compensable because "doffing the gear that... is integral and indispensable to employee's work
7 29 U.S.C. § 254(a).
(fn8)IBP, 125 S.Ct. at 523.
9 Id. at 524.
10 Id. at 525.
11 Tum v. Barbar Foods, Inc., No. 04-66.
is a principal activity . . . [therefore] the continuous workday rule mandates that the time spent waiting to doff" was covered under FLSA.(fn12) In contrast, the Court determined that time spent waiting to don the protective gear before the workday started is not "integral and indispensable" to a "principal activity" and thus is excluded from coverage under FLSA by the Portal to Portal Act.(fn13)
Cashman v. Tolland(fn14) is the state Supreme Court's "when work begins" decision. There, the state department of labor (acting through Shaun Cashman, its Commissioner) sued the town of Tolland to collect unpaid wages for 22 town employees who operated snowplows. The issue was when did the town's obligations to pay wages begin once the employees were called back to work to clear snow - was it from the time they received the call to return to work or from the time they actually returned and reported to work? The town had paid the employees from the time they returned. The department argued that the statute relating to hours worked, CONN. GEN. STAT. Section 31-76b, required pay from the time the employees received the call.
Affirming the trial court, the Supreme Court ruled for the town. It cited the statute's provision that "working time shall begin when the employee is notified of his assignment. . . ."(fn15) It then noted the trial court's finding that employees who were called to return to plow snow did not receive notice of their assignments until they actually arrived at work and punched in. Based on this finding, it was no great leap for the Court to conclude that under the facts of this case, at least, the obligation to pay did not begin with the call to return, but instead began when the drivers received their actual assignment.
II. FMLA DECISIONS
The state Supreme Court's FMLA decision is Cendent Corporation v. Commissioner of Labor.(fn16) There, the
12 Id. at 527.
13 Id.
14 276 Conn. 12, 882 A.2d 1236 (2005).
15 Id. At 16.
16 Id.
employer, Cendent, appealed the ruling of the Department of Labor ("DOL") that it violated the state Family and Medical Leave Act when it failed to reinstate an employee to her position after she sought to return from maternity leave. The DOL awarded the employee over $500,000 in damages.
In the underlying DOL proceedings, Cendent claimed that the employee's job was eliminated following the sale of the business unit in which she worked. It never offered her a specific replacement position, but did accord her the opportunity to apply for several other posts. When the employee failed to take advantage of this opportunity, Cendent interpreted her inaction as a voluntary resignation. The DOL Commissioner, however, found that the employee's position still existed following her maternity leave and that it was filled by somebody else. In concluding that Cendent violated the FMLA, the Commissioner also found that Cendent had "no legitimate business reason for failing to reinstate the" employee."(fn17) The Superior Court affirmed the Commissioner's ruling.
The Supreme Court described the task before it as determining the proper framework for analyzing a claim of interference with an employee's right to reinstatement under the Connecticut Family and Medical Leave Act.(fn18) The state FMLA, like its federal analog, gives employees the right to up to a specified number of weeks of leave for, among other things, the birth of a child, and the additional right to be reinstated to their original or...
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