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Tue Feb. 4th, 2014 PTWWW Legal Alert

Donning and Doffing Not Compensable
On January 27, 2014, the U.S. Supreme Court in Sandifer v. United States Steel Corp. held that the time spent by employees donning and doffing (putting on and taking off) certain protective gear is not compensable under Section 203(o) of the Fair Labor Standards Act (FLSA).  This ruling will significantly impact the ability of employees to seek compensation for the donning and doffing of certain items in the unionized setting.  As a result of this ruling, unionized employees should not be able to recover under Section 203(o) for most time spent donning and doffing standard protective gear when an applicable Collective Bargaining Agreement expressly excludes this activity from measured working time, or where the time is excluded under that Collective Bargaining Agreement by custom or practice.     

New Law Addresses Sexual Harassment Against Men
Senate Bill 292, sponsored by the California Employment Lawyers Association, overrules the Court of Appeal’s decision in Kelley v. Conco Companies – a case that had a perverse effect on employee’s protections under California anti-harassment law because it held that sexually harassing conduct must be motivated by sexual desire.  The enactment of SB 292 shifts the focus to whether the harasser targeted the victim because of his or her gender, not whether the harasser had sexual intent or desire for the victim.  Now, California law affords protection to male employees who’ve been subjected to unwanted, sexually harassing comments and conduct by other heterosexual males in the workplace – a serious issue that had been long overlooked or downplayed. 

Can an Employer Intentionally Downsize to Avoid Providing On-Duty Meal Breaks to Employees?
In Abdullah v. U.S. Security Associates, Inc., the Ninth Circuit upheld the lower court’s grant of class certification where the employer required “on-duty meal period agreements” based on its contention that off-duty breaks were incompatible with “the nature of the work.”   The Court explained  that an employer might legitimately require on-duty meal breaks “where the employee is the only person employed in the establishment and closing the business would work an undue hardship on the employer.”  But the Court also noted that this defense may be dicey where, as in most cases, it was the employer who made the decision to staff only one employee in the first place.  The Abdullah decision signals that employers cannot merely rely on their own desire to avoid additional staffing expenses as a rationale for requiring on-duty meal breaks.