Labor and Employment - John O'shea Sullivan and K. Alex Khoury

• Publication year: 2006

Labor and Employmentby Jerry C. Newsome^* and K. Alex Khoury^**

Several significant opinions affecting labor and employment law in the Eleventh Circuit were handed down by the Supreme Court and the Eleventh Circuit's trial and appellate courts during this survey period (January 1, 2005 to December 31, 2005). For example, the United States Supreme Court clarified the meaning of a continuous workday in IBP, Inc. v. Alvarez,¹ expanding the amount of nonproductive time for which employers must pay their workers under the Fair Labor Standards Act ("FLSA").² Further, the Eleventh Circuit Court of Appeals and the United States District Court for the Middle District of Florida enforced a strict standard for placing an employer on notice when employees request leave under the Family and Medical Leave Act ("FMLA")³ related to pregnancy.⁴

The most intriguing cases decided this year, however, came from outside the pale of the more commonly litigated labor and employment statutes. In Williams v. Mohawk Industries, Inc.,⁵ the Eleventh Circuit Court of Appeals may have opened up a whole new battlefield in the labor and employment practice by holding that employees can sue their employers under federal and state RICO statues for hiring undocument- ed workers.⁶ Additionally, in an area of labor and employment practice that promises to become more heavily litigated in the next few years, the Eleventh Circuit limited liability under the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA")⁷ by limiting a "successor in interest" under the Act to a company involved in a merger or transfer of assets with the former employer.⁸

This Article will examine these and other cases in a look back at some of the significant decisions of 2005 affecting labor and employment law in the Eleventh Circuit.

I. The Fair Labor Standards Act—Compensable Time

The big news in FLSA law in the Eleventh Circuit in 2005 came from the United States Supreme Court. Time spent donning and doffing specialized protective gear in the workplace has long been held to be compensable time.⁹ In IBP, Inc. v. Alvarez,¹⁰ the Supreme Court unanimously expanded the definition of compensable time for employees required to wear protective gear to include time spent walking between their changing area and the production area, and time spent waiting to doff their protective gear.¹¹ The Court, however, excluded the time spent waiting to don protective gear at the beginning of the work day from compensable time.¹²

Alvarez is a consolidated opinion, in which the Court unanimously resolved similar issues raised in IBP, Inc. v. Alvarez¹³ and Tum v. Barber Foods, Inc.¹⁴ The employers in both cases owned meat processing plants. Employees working in the slaughter and processing divisions of these plants were required to wear protective equipment while they worked. These employees stored their protective gear in lockers provided by their employers. Despite requiring the slaughter and processing employees to report to the locker rooms at the beginning of their shifts to don their protective gear and to return to the locker rooms at the end of their shifts to doff their gear, the employers only paid these employees for time spent at their workstations. The time the employees spent donning and doffing their protective gear, waiting to don and doff their protective gear, and walking time between the locker rooms and the employees' work stations totaled approximately ten minutes per day of unpaid time.¹⁵

The first issue considered by the Court was whether "postdonning" and "predoffing" time spent walking between a changing area and the production area was compensable under the Portal-to-Portal Act of 1947,¹⁶ which amended the original FLSA.¹⁷ The Portal-to-Portal Act previously had been interpreted to exclude from FLSA coverage any time spent on an employer's premises walking to and from the location of the employee's "principal activities."¹⁸ In Alvarez, however, the Court held that "during a continuous workday, any walking time that occurs after the beginning of the employee's first principal activity [e.g., donning protective gear] and before the end of the employee's last principal activity [e.g., doffing protective gear] is . . . covered by the FLSA."¹⁹

The second issue considered by the Court was whether time spent waiting to don and doff protective gear was compensable.²⁰ Applying its continuous workday analysis, the Court held that time spent waiting to don "the first piece of protective gear was not compensable because such time was "preliminary" to, and not an "integral and indispensable" part of, the employee's first principal activity of the workday (i.e., donning protective gear).²¹ In contrast, the Court held that time spent waiting to doff protective gear is compensable because waiting to doff the gear fell after the employee's first principal activity and before the employee's last principal activity, and therefore it was part of the continuous work day.²²

Alvarez makes it clear that the workday for employees required to wear protective gear begins when they put on their gear at the beginning of their shift, and it stops only after they take their gear off at the end of their shift. The Supreme Court's emphasis on the "continuous workday" method of computing a worker's compensable time will require employers to pay their employees for more of their nonproductive time while at work.

II. The Family and Medical Leave Act

A. Notice Requirements Under the FMLA

In Cruz v. Publix Super Markets, Inc.,²³ the Eleventh Circuit Court of Appeals ("Eleventh Circuit") held that an employee telling her employer that she would be absent from work due to her daughter's pregnancy was not sufficient to put her employer on notice that she was requesting FMLA leave.²⁴ The plaintiff in Cruz was a long-time employee of the defendant. When the plaintiff learned that her daughter was pregnant with the plaintiff's second grandchild, she requested two weeks of unpaid leave to be present for her grandchild's birth. The defendant authorized the plaintiff's leave request under its unpaid leave policy, not the FMLA.²⁵

The plaintiff's daughter went into labor two weeks before the plaintiff's originally requested leave date. The plaintiff informed her assistant manager, who agreed to allow her to leave at an earlier date. The plaintiff also informed the assistant manager that she planned to return on her originally scheduled return date, thereby extending her leave from two weeks to four weeks long. The defendant refused to grant the extension of the leave period. Despite being told that she did not qualify for FMLA leave, the plaintiff completed the defendant's paperwork for FMLA leave requests with a letter from her daughter's physician. The letter stated that her daughter needed her to help with the labor and that the plaintiff's son-in-law would be unable to help with the coaching. The defendant denied the plaintiff's FMLA leave request and scheduled her to work regular hours beginning at the end ofher two weeks of approved leave. When the plaintiff failed to return to work at the end of two weeks, the defendant terminated her for job abandonment. The plaintiff filed a complaint against the defendant, claiming that the defendant improperly denied her FMLA leave and that she was terminated in retaliation for exercising her FMLA rights.²⁶ The district court granted summary judgment in favor of the defendant because the plaintiff failed to give the defendant "sufficient notice that her leave was due to a potentially FMLA-qualifying reason."²⁷

The Eleventh Circuit affirmed the district court's decision, holding that the plaintiff did not qualify for FMLA leave because she failed to notify the defendant that her daughter had a serious health condition.²⁸ The court emphasized that there was a distinction between being pregnant and being incapacitated because of pregnancy within the FMLA's meaning of a "serious health condition."²⁹ The court held that because the plaintiff failed to provide information that her daughter was incapacitated due to complications from her pregnancy, the plaintiff did not provide sufficient notice that her leave potentially implicated the FMLA.³⁰

The decision in Cruz makes it clear that in order to place an employer on notice that an employee is requesting FMLA leave, employees must provide facts or information that somehow convey to the employer that an event has occurred triggering FMLA applicability.³¹ Unlike a pregnancy with complications or actual childbirth, a normal pregnancy does not implicate the FMLA. Thus, mere mention of a pregnancy, whether it be the employee's pregnancy or the pregnancy of an immediate family member, is not enough to put the employer on notice that a request for FMLA leave has been made.

B. Return to Work Requirements Under the FMLA

Two district courts in the Eleventh Circuit addressed the return to work requirements for employees after FMLA leave in 2005, and both cases ended with the courts granting summary judgment for the employers. In Barnes v. Ethan Allen, Inc.,³² the United States District Court for the Southern District of Florida held that the defendant did not interfere with the plaintiff's FMLA rights when it terminated her for failing to submit a valid certification after her FMLA leave expired.³³ On December 5, 2003, the plaintiff in Barnes notified the defendant that she was diagnosed with kidney stones. The plaintiff's leave expired on January 26, 2004. The defendant required the plaintiff to submit a "fitness-for-duty certificate" before she could be re-instated in her former position. The plaintiff was notified in writing that she could be terminated if she failed to submit the certification.³⁴ The plaintiff alleged that she submitted a note from her physician on January 14, 2004, stating she was under his care until "4-6 weeks from today 01/14/04."³⁵

By March 18, 2004, the plaintiff still had not...