Ohio Courts: When Commuting to and From Work Arises Out of Employment

There have been a number of decisions over the last month which addressed whether an employer was liable for injuries to or caused by an employee while the employee was arguably off duty and even off the employer's premises. Therefore, it seemed to be a good time to review when an employer can find itself in legal trouble because of an employee who was not even at work at the time of the incident.

In the first case, a municipal housing inspector slipped and fell on the ice in a restaurant parking lot while he was walking back to his car following his daily, paid rest/coffee break to complete his trip from his office to a home which he had planned to inspect. Miller v. Administrator, Bureau of Workers' Compensation, 2010-Ohio-1347. The trial court granted summary judgment to the employer on the grounds that the coming-and-going rule precluded coverage for an employee with a fixed site of employment who was coming or going from work. The employee argued that he was still on duty at the time of the accident – albeit on a paid coffee break. The Court of Appeals agreed that while the coming-and-going rule might bar coverage for a similar accident during an unpaid lunch break, it might not bar coverage for paid rest breaks:

However, the same is not true of coffee breaks and other breaks taken for the employee's personal comfort, even when the employee is injured while off of the employer's work premises. . . . Unlike the unpaid lunch break, it is generally accepted that although an employee is not technically performing his work duties during a break, taking a break for personal comfort is deemed to be incidental to the employment and therefore in the course of and arising out of the employment. . . . Thus, in examining whether an off-premises break arises out of and in the course of the employment, the issue cannot be resolved solely through the mere determination of the fixed status of the employment and automatic application of the coming and going rule. The court must inquire into the specific circumstances of the injury to determine work-connectedness. Such factors could include the time of the break, whether the break is a right fixed by the employment contract, whether it is a paid break, whether there are any restrictions as to where the employee can take the break, and whether the employee's activity during the break constituted a
substantial personal deviation.

In addition, the court found that the injury occurred in the course of his employment because he "was required to leave his office building in order to satisfy the duties of his employment. Further, consistent with his employment contract, he was entitled to take a fifteen-minute coffee break at a time and location of his choosing. [He] then sustained an injury at a time when he was engaged in the permissible activities of employment. The risk of his injury was a risk inherently related to the nature of his employment and he would not have sustained the injury had he not been required to leave the office in order to satisfy his work duties." Further, the court found that the accident took place in proximity to his regular place of employment because: he "was at a place he could reasonably be expected to be at the time of injury in light of his employment duties and given that he had not deviated from his employment to engage in some activity of a purely personal nature. In addition, he was at a location that was reasonable in light of the location of the inspection site." The court also found that the employer had some degree of control over the employee because it "had control over the time and place where [he] could take his break and elected not to place any restriction upon [him]." Finally, in a mind-twisting move, the court found that the employer benefitted from the employee's rest break in that the employee would then feel renewed and re-energized to continue working.

Therefore, the court of appeals reversed the employer's summary judgment and directed entry of judgment in favor of the employee.

In the second case, Sammetinger v. Bureau of Workers' Compensation, 2010-Ohio-1500, a construction manager was injured in a single car accident when driving home after his regular shift when his son (a fellow employee) fell asleep while driving the company truck issued to the father/manager. The manager commuted to the Powell worksite from his home in Wapakoneta each day in a truck assigned to him by his employer. However, as a manager, his duties were not limited to the construction shift. He often stayed after work to conduct inventory and frequently ran errands in the company issued truck during and after the construction shift. These errands included picking up gasoline and ice for the crew during his commute and taking home company tools to be stored safely in his garage each night. He also frequently fielded cell phone calls while he was commuting to and from work. On the evening of the accident, he was too tired to drive home and asked his son – a fellow employee – to drive instead. Apparently, the son was sleepy as well, fell asleep during the drive and the father/manager was severely injured.

The father/manager brought, among other things, a claim for workers compensation benefits against his employer and sued the employer's insurance company under the UM/UIM portion of the employer's insurance policy (since their son had been driving a company-owned vehicle). The employer denied that the father/manager had been injured in the course of his employment and, thus, would not be covered by workers compensation. The son argued that he was immune from suit as a fellow employee under the workers' compensation statute. The trial court found that the father/manager's injuries were covered by workers' compensation because he was injured in the scope of his employment, and granted summary judgment to the son on the UM/UIM claim because he was a fellow employee.

To be covered by workers' compensation, the injury must occur in the course of and arise out of the employee's employment.

The phrase "in the course of employment" limits compensable injuries to those sustained by an employee while performing a required duty in the employer's service. "To be entitled to workmen's compensation, a workman need not necessarily be injured in the actual performance of work for his employer." An injury is compensable if it is sustained by an employee while that employee engages in activity that is consistent with the contract for hire and logically related to the employer's business. . . . .

Generally, "an employee with a fixed place of employment, who is injured while traveling to and from the place of employment, is not entitled to compensation under the Workers' Compensation Fund because the requisite causal connection between injury and the employment does not exist." MTD Products, Inc. v. Robatin (1991), 61 Ohio.St.3d 66, 68, 572 N.E.2d 661, citing Bralley, supra. However, there are exceptions to the general rule barring compensation when the injury occurs while the employee is "coming and going" to and from his place of employment: if the injury occurs in the "zone of employment;" if it was a result of a "special hazard" of the employment; or if, based upon the totality of the circumstances, there is a sufficient causal connection between the injury and the employment to warrant compensation. Moreover, the Ohio Supreme Court has long recognized that exceptions exist to the requirement that the injury must be suffered at or near the place of employment or within the zone of employment:

(1) where the employer, as an incident of the employment, provides the means of transportation to and from the place of employment; * * * and (3) where the employee is charged while on his way to or from his place of employment or at his home with some duty in connection with his employment.

In this case, the parties agreed that the father/manager had a fixed site of employment. Nonetheless, the court found that "he was acting for the benefit of his employer when he was injured and thus entitled to workers' compensation given the totality of the circumstances surrounding his injuries." The Court was particularly influenced by the amount of post-shift activities and the fact the employer had never prohibited post-shift work:

[The father/manager] closed down the masonry work on the high school and loaded up the pick-up truck that was assigned to him by [the employer] with tools and equipment belonging to [the employer] for transport to and safe-keeping in [the father/manager]'s garage at home. Every day on his way home, he stopped for gas, which was needed to operate a number of tools for the construction . . . the following day. He also stopped to purchase ice for the following day because fresh ice was required by contract to be provided by [the employer] to the workers at the site every day. [The father/manager] also refueled his work truck every other day because the truck was needed to provide him with transportation to and from the site, to provide ransportation for other workers who may have needed a ride, and to deliver [the father/manager]'s paperwork to [his boss] in Lima once a week. The truck was also assigned to [the father/manager] for use on errands such as picking up equipment from other [the employer]' job sites to be used at the high school or to make a run to a local hardware store during the day, and to transport the water containers and ice to and from the job site every day. The ice and gas purchases, which always occurred either in Russells Point or Wapakoneta, were made with a credit card provided by [the employer]

{¶31} Once he was home, [the father/manager] parked the truck in his garage in order to protect the tools and equipment in the truck from theft because a fair amount of tools had been stolen from the job site. In addition, [the father/manager] occasionally performed small repairs and maintenance on some of these tools and pieces of equipment at his home. He also cleaned the water containers and re-filled them at his home because the contract required [the employer] to supply fresh water to the workers every day. Often times, he had a significant amount of paperwork with him to complete because he was unable to finish it during the day because his attention was needed in some other function of his job. Therefore, he would complete this paperwork at home.

{¶32} Throughout the day, beginning at approximately 5:00 a.m. and continuing until approximately 10:00 p.m., [the father/manager] received phone calls on his employer-provided cellular phone. As previously noted, these calls were for a variety of work-related issues. Often times these calls occurred in the morning while [the father/manager] was going to the job site or during the afternoon while he was coming home from the job site. He also received work-related calls at his home.

{¶33} Indisputably, with the exception of an occasional call from his wife, all of these actions by [the father/manager] were directly for the benefit of his employer . . . While the location where [the father/manager] bought the ice and gas was of his own choosing, stopping to purchase these items, bringing home the containers to clean them and fill them with fresh water, transporting the tools and equipment for safekeeping, completing his paperwork for timely delivery to [his boss] every week, and receiving and making phone calls whenever and wherever, were all performed solely for [the employer]' benefit and in an effort to further its best interests. In fact, [the father/manager] summarized it best in his deposition: "My scope of employment doesn't end at 3:30 and doesn't start at 7 o'clock. There are responsibilities that go with my position that I can't control that need to be done, and I'm good at what I do, therefore I do it." Once again, [the employer] presented no evidence to contradict this statement by
[the father/manager] or any of the foregoing evidence regarding the work-related use of the company truck by [the father/manager].

{¶34} [The employer] also presented no evidence to demonstrate that [the father/manager]'s off-site activities were prohibited by it or that [the father/manager] was ever instructed to complete his tasks in a different manner. Although the credit card receipts would have shown that the gasoline and ice were being purchased at a location over fifty miles away from the job site, as well as the undoubtedly high amount of gasoline that was being purchased to drive the truck from Wapakoneta to the high school and back every day, the record is devoid of any evidence that [the employer] told [the father/manager] to purchase these items closer to the job site and not to use its truck and gasoline for daily transportation to and from his home. To the contrary, [the employer], at a minimum, acquiesced to [the father/manager] making these purchases far from the job site and to using the truck for his daily commute.

{¶35} Further, there is no evidence that [the father/manager] was ever instructed not to deliver his paperwork to [his boss's] home, not to complete it at his home, not to work on, transport, or house any of the equipment at his home, or not to make and receive work-related calls after he left the job site. Rather, the evidence indicates that [the father/manager]'s position as a supervisor required him to shoulder a number of responsibilities, to act in the best interest of [the employer]' business, and to do what was necessary to effectively fulfill his role as supervisor, whether he was at the job site, off the job site, or en route to accomplish one of his many required tasks. Moreover, [the employer] provided him with a vehicle, which he never used for personal business, and a phone to aid him in his duties. In sum, the evidence demonstrates that in many ways, the truck, which was under [the employer]' control, was [the father/manager]'s mobile work place.

{¶36} Furthermore, at the time of the accident, [the father/manager] had not completed his work for the day. The accident occurred at a point located between the [construction site] and Russells Point. Russells Point was one of two locations where [the father/manager] always stopped for gas and ice, the other being in Wapakoneta, which [the father/manager] had yet to reach. Thus, [the father/manager] was still en route to purchase the gasoline and ice for the following day when the accident occurred. He also had yet to clean and fill the water containers for the following day. As was customary for him, he was also transporting a number of tools from the high school to his home for safe-keeping at the time he was injured. In addition, shortly before the accident, [the father/manager] received a work-related call on his cellular phone.

{¶37} In short, [the employer] provided the vehicle in which [the father/manager] was injured as an incident to his employment; at a minimum, [the employer] acquiesced to the performance of some of his job duties being conducted on his way to and from work and at his home; it benefitted from the use of his garage to safely keep the vehicle and a
number of its tools and equipment overnight; and [the employer] required [the father/manager] to handle phone calls related to its business whenever they might occur, including on his drive to and from the job site and at his home. While [the employer] may not have directly paid [the father/manager] for each minute he spent doing its business while en route to and from work and at home, as [the father/manager] admitted he never charged his employer for the time he spent after the job site closed for the day on any phone calls, getting gas and ice, cleaning and filling the water containers, or maintaining and repairing the equipment he transported, this fact is of little consequence in light of the benefit [the employer] undoubtedly received from him.

{¶38} Thus, given the broad spectrum of responsibilities that [the father/manager] had as a masonry supervisor for [the employer], as well as the undisputed fact that these responsibilities necessitated him performing some of them away from the high school, including while en route to and at his home, the only reasonable conclusion in examining the totality of the facts and circumstances surrounding [the father/manager]'s injuries is that they occurred in the course of and arising out of his employment for [the employer].

Therefore, the Court of Appeals affirmed summary judgment against the employer on the workers' compensation claim.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Deadline for Federal COBRA Subsidy Again Extended

Last week, Congress passed the Continuing Extension Act of 2010, which among other things, extends unemployment benefits through June 2, 2010 and again extends the federal COBRA subsidy until May 31, 2010. However, the length of time (15 months) for which an individual may receive the COBRA subsidy has not been extended. In addition, the CEA maintains the new provision from the Temporary Extension Act of 2010 which provides that individuals who experience a COBRA qualifying event of a reduction in working hours (which renders them ineligible for medical insurance even though they remain employed part-time) before March 1, 2010, but are laid off after March 1, 2010 are eligible for the COBRA subsidy. The Department of Labor has not yet amended the COBRA notifications which employers must send to eligible employees (and its website still refers to the March 31 date).

The Ohio Department of Insurance reports that on February 25, 2010, Govenor Strickland also signed a bill to authorize the temporary extension of the period of time which the laid-off employees of small employers (i.e., with less than 20 employees who are not subject to the federal COBRA statute) from 12 months to 15 months for as long as a federal COBRA subsidy is available. The ODOI website also still mentions the March 31, 2010 deadline from the TEA and has not yet addressed the affect, if any, of the CEA.

More information about the COBRA subsidy and the notices employers are required to send is available at Employers Must Send Amended COBRA Notices and DOL Publishes Model Notices for COBRA Subsidy Under Stimulus Act to Be Sent by Employers Before April 18.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Puts Burden on Employer to Assure that Harassment Stops After Employee’s First Complaint.

Today, the federal Sixth Circuit of Appeals released an unanimous opinion affirming the award of $1,039,504 in compensatory and punitive damages, back pay, and front pay (but which does not yet include court costs or attorney fees) to a female plaintiff who quit her job paying less than $10/hour after only five weeks on the job because she was sexually harassed by co-workers. West v. Tyson Foods, Inc., No. 08-6516 (6^th Cir. 4/16/10). While the amount of the verdict is enough by itself to get an employer's attention, this case is particularly instructive in watching how many times management dropped the ball despite having good policies and procedures in place because apparently no one was enforcing those policies or administering those procedures when it came to this plaintiff. Moreover, the Court found that the employer was on notice of the continuation of the sexual harassment following the employee's first complaint even though she did not complain to her supervisor again before walking off the job permanently. Therefore, this is a particularly instructive case for human resources professionals.

According to the Court's opinion, the plaintiff worked on an assembly line. She attended an employee orientation which covered the employer's sexual harassment policy twice, and was informed that all sexual harassment complaints would be investigated within two weeks and that the investigation would be kept confidential. Nonetheless, in that same first week, she was harassed verbally by a number of co-workers and within two more weeks the harassment escalated to inappropriate touching which put her in tears. When she reported the harassment to the lead lineperson and her supervisor – giving names and examples of the offending the conduct, she was advised not to take it personally because they're like that to all women and it was because she was "hot." When they saw she was not amused, they said they would look into it, asked her not to report this to HR and then later offered her a transfer to a different location. While the plaintiff thought that her supervisor would report this to HR, instead he just watched out for her for a few days. Nonetheless, the harassment continued for the next two weeks, escalated to groping and she stopped going to work after being followed out to the parking lot by the alleged harassers because she feared getting raped. The employer notified her that it was treating her absence as job abandonment and fired her.

The employer refused to give her the last paycheck until she completed an exit interview. At that point, she met with her first HR employee for 45 minutes and recounted in detail how she had been harassed, how she had reported it to her supervisor and how it had continued even after he transferred her to another location. He promised that an investigation would be conducted within two weeks in accordance with company policy. However, instead of specifically alerting someone or investigating it himself, the HR employee passed on his notes (on the exit interview form) to the inbox of an HR clerk and the form was never seen again. Yet another employee quit because of sexual harassment shortly thereafter and, again, no investigation was conducted.

More than a month later, the plaintiff filed a Charge with the EEOC and the employer received it a few weeks later. At that point, an investigation commenced and a search of over 2300 files was made to find the missing exit interview form. When the form could not be found, a cursory investigation was conducted, but it did not include the HR employee who conducted plaintiff's exit interview, or the offending employees. The employer told the EEOC that it had conducted an investigation after the plaintiff's exit interview, that her complaints to her supervisor had been nonspecific and that she asked him not to report it to HR. Apparently, however, the employer disciplined a number of employees for not reporting the plaintiff's concerns to HR, but not the HR employee who conducted her exit interview.

Most of these facts did not come out, however, until litigation commenced at the end of the year and the employees and supervisors testified under oath. The Court refused to exclude evidence of the employer's post-termination investigation on the grounds that it showed how the employer failed to take prompt remedial action and had shown manifest indifference to her concerns (which was relevant to punitive damages). It also instructed the jury that it was permitted to conclude that the employer "lost" the exit interview notes because the information was favorable to the plaintiff. The jury found in favor of the plaintiff and the trial court agreed during post-trial motions.

The Supervisor's Response to the Plaintiff's Complaint Was Ineffective and He Was at Fault for Not Confirming with Her that the Harassment Had Stopped.

The Court of Appeals affirmed because "[v]iewing the evidence in the light most favorable to [the plaintiff], the jury reasonably could have found that [the employer] knew or should have known of the harassment and that [the employer's] response reflected an attitude of permissiveness." In addition,

a reasonable jury could have concluded from the evidence that [her supervisor] failed to take a number of steps that would clearly be necessary to establish a base level of reasonably appropriate corrective action under the circumstances, such as speaking with the specific individuals identified by [the plaintiff], following up with [the plaintiff] regarding whether the harassment was continuing, and reporting the harassment to others in management. [The supervisor's] failure to do these things at any time supports the conclusion that his response was neither prompt nor appropriate.

The Court had little sympathy for the supervisor when he testified that he thought the harassment had stopped because the plaintiff never complained to him again because she could have relied on his promise to "take care of it." This finding alone should trouble employers because other court decisions have protected employers from continuing harassment claims when the plaintiff failed to notify the employer that the initial remedial actions were insufficient. This case puts the burden on the employer to check back with the complaining employee to ensure that the remedial actions were effective.

The Court also rejected the employer's contention that it could not be held liable for the harassment because it did not have knowledge of it. As the court noted: "In the context of sexual harassment claims, actual notice is established by proof that management knew of the harassment." Thus, when the plaintiff told her supervisor, who had authority to receive sexual harassment complaints and to conduct an investigation, the employer was put on notice as well. To the extent that the employer's ignorance was based on the plaintiff's failure to complain a second time to her supervisor about the continuation of the harassment, "management's ignorance was the result of [the employer's] failure to respond appropriately to the original complaint by, for example, investigating the complaint, speaking to the harassers, or checking back with [the plaintiff], and such failure cannot be used as a shield against a claim of sexual harassment."

The Loss of a Key Piece of Evidence Can Be Held Against an Employer.

The Court also found that it was appropriate to instruct the jury that if it:

believe[s] that the [exit interview] notes are missing as the result of the unjustified or careless actions or inactions of [the employer], or any of its agents, then you may, but are not required to, draw an inference that the missing evidence would be favorable to the Plaintiff and adverse to the Defendant.

The Court also rejected the employer's argument that it was an abuse of trial court discretion to permit evidence about the plaintiff's complaint during her exit interview and the employer's post-termination investigation because it was not relevant to her constructive discharge claim and would confuse the jury about when liability attached for the sexual harassment. However, such evidence was relevant to the plaintiff's claim for punitive damages because the employer's post-termination conduct was relevant to its good faith in responding to her complaint. Moreover, considering the significant amount of other evidence about the employer's indifference and the existence of sexual harassment, the prejudicial affect on the jury was found to be minimal.

The Plaintiff's Constructive Discharge Was Foreseeable and Caused by the Employer's Indifference.

The Court also rejected the employer's attack on the plaintiff's constructive discharge claim:

A claim of constructive discharge requires a determination that "working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Held v. Gulf Oil Co., 684 F.2d 427, 432 (6th Cir. 1982). "To determine if there is a constructive discharge, both the employer's intent and the employee's objective feelings must be examined." Logan v. Denny's Inc., 259 F.3d 558, 569 (6th Cir. 2001). An employer's intent can be shown if the employee quitting is a foreseeable consequence of the employer's actions. An employee who quits has "an obligation not to assume the worst, and not to jump to conclusions too fast."

In this case, because there was evidence that the employer tolerated "badgering, harassment, or humiliation" in that at least the plaintiff's supervisor was aware of the alleged harassment and failed to adequately address them. "The jury could have reasonably found that this evidenced a deliberate choice to allow intolerable working conditions." Moreover, the Court found it was foreseeable – even likely that the plaintiff would resign under the circumstances.

It is foreseeable that, after weeks of continuous physical and verbal harassment that goes unaddressed, an employee in [the plaintiff's] position would choose to resign. Further, it cannot be said that [she] "assumed the worst" or "jumped to conclusions." She waited beyond the two-week period from her initial complaint to [her supervisor] within which [the employer's] policy assured her an investigation would be completed, and an employee subject to continuous verbal and physical harassment is not "jumping to conclusions" when she resigns under those conditions.

Punitive Damages Were Appropriate.

Finally, the Court found that punitive damages were appropriate in light of the employer's reckless disregard for the plaintiff's civil rights. She could show that her supervisor and the HR manager who conducted her exit interview acted in the risk of violating her civil rights by not reporting her harassment complaint to HR and not conducting an actual investigation because management training had included anti-harassment training. In addition, the jury could believe that the employer attempted to mislead the EEOC by claiming that it had promptly conducted an investigation after her exit interview instead of waiting several weeks until it received her EEOC Charge. Finally, considering the different versions of events given at trial, the jury could also find that the employer was untruthful.

Although the employer could have avoided punitive damages by showing that it acted in good faith, this requires more than proof that a policy has been adopted. Instead, an employer must prove an effective implementation of its antiharassment policy. In this case,

[A]lthough there was evidence that [the employer] communicated its policy to its employees with some frequency, there was also substantial evidence that the policy was disregarded in its implementation and enforcement. There was evidence of widespread disregard of the policy by employees in engaging in harassment, by supervisors in not reporting to HR incidents of harassment or failing to conduct follow-up investigations, by co-workers in not reporting incidents of harassment, and by HR managers in not investigating reports of harassment. Further, the investigation, when it did take place, was, as the district court stated, "notably flawed." [The employer's] complete failure to follow through, twice, on complaints of harassment by [the plaintiff], followed by a deficient investigation in response to the EEOC's inquiry, does not fulfill "Title VII's objective of motivating employers to detect and deter Title VII violations."

Employers can learn from this decision by reminding its own staff – as well as front line management – of the importance of reporting sexual harassment concerns to HR and then promptly investigating them instead of hoping that they will just go away on their own. When even a new employee making just above minimum wage can win in excess of a million dollars after working just five weeks, it is time for production and HR supervisors to understand how important it is to report and fully investigate sexual harassment complaints.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Unpaid Breastfeeding Breaks Now Mandated by FLSA Per the Patient Protection and Affordable Care Act

As some of you may recall from my August 27, 2009 post at Lactation Discrimination in Ohio: Toto: We’re Not In Kansas Anymore, the Ohio Supreme Court ruled that employers were not required to provide breaks to new lactating mothers. However, the Patient Protection and Affordable Care Act signed last week by President Obama changed that for Ohio and other employers subject to the FLSA. Among other things, the PPACA amends the FLSA to provide that employers must provide an unpaid break for mothers to express breast milk for one year after the birth of the child in a location (other than a restroom) that is shielded from view and intrusion by the public or coworkers. There is an exception for small employers (with fewer than 50 employees) who can show an undue hardship by the significant difficulty or expense of providing such beaks considering the employer’s size, financial resources, nature or structure.

There is no “official” website for the text of the PPACA yet, but the text of Section 4207 of the PPACA (as reflected by the Senate bill later passed by the House and signed by the President) provides as follows:

Section 4207. Reasonable Break Time for Nursing Mothers.

Section 7 of the Fair Labor Standards Act of 19389 (29 U.S.C. § 207) is amended by adding at the end of the following: “(r)
(1) An employer shall provide –
(A) a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth; and
(B) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.
(2) An employer shall not be required to compensate an employee receiving reasonable break time under paragraph (1) for any work time spent for such purpose.
(3) An employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.
(4) Nothing in this subsection shall preempt a State law that provides greater protections to employees than the protections provided for under this subsection.

A summary of the Public Law 111-148 is available on the Library of Congress website.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Obama DOL Eliminates FLSA Opinion Letters

As some of you may recall from my 3/9/09 post -- DOL Releases New FLSA Opinions from Bush Era Including Letters Addressing Mandatory Use of Vacation or PTO During Temporary Shutdowns -- on the last day of the Bush Administration, the Department of Labor attempted to issue 36 FLSA Administrator Opinion Letters, but only about half them were properly post-marked before the change in administrations. As a result, the Obama Administration published all of the letters on the DOL website, but indicated that it was withdrawing and was reserving the right to review, clarify and even reverse the 18 letters which had not been mailed before the Obama inauguration. (These letters were marked on the website with an asterix). However, the Obama Administration has not issued any FLSA Opinion Letters since that time and last week announced that it would not be issuing any more FLSA Opinion Letters for the foreseeable future (or revising any of the 19 Opinion Letters it previously withdrew pending review). Rather, it will instead be issuing Administrator Interpretations -- general statements of policy applicable to particular industries or involving particular rules:

In order to provide meaningful and comprehensive guidance and compliance assistance to the broadest number of employers and employees, the Wage and Hour Administrator will issue Administrator Interpretations when determined, in the Administrator's discretion, that further clarity regarding the proper interpretation of a statutory or regulatory issue is appropriate. Administrator Interpretations will set forth a general interpretation of the law and regulations, applicable across-the-board to all those affected by the provision in issue. Guidance in this form will be useful in clarifying the law as it relates to an entire industry, a category of employees, or to all employees. The Administrator believes that this will be a much more efficient and productive use of resources than attempting to provide definitive opinion letters in response to fact-specific requests submitted by individuals and organizations, where a slight difference in the assumed facts may result in a different outcome. Requests for opinion letters generally will be responded to by providing references to statutes, regulations, interpretations and cases that are relevant to the specific request but without an analysis of the specific facts presented. In addition, requests for opinion letters will be retained for purposes of the Administrator's ongoing assessment of what issues might need further interpretive guidance.

In the past, FLSA Opinion letters involved the FLSA Administrator's detailed legal analysis of real questions by real employers and these letters could be relied upon as a reasoned legal position of the DOL in an employer was later investigated by the DOL or sued in court. General statements of policy are typically entitled to less judicial deference.

All that being said, the first Administrative Interpretation concerns the exempt status of Mortgage Loan Officers. In doing so, the Obama DOL has withdrawn prior Opinion Letters finding mortgage loan officers to be exempt from overtime wages.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.