In a decision just two weeks after Valentine’s Day, the Ninth U.S. Circuit Court of Appeals (“Ninth Circuit”) has ruled that hugs and kisses may decrease, rather than increase, feelings of affection in the workplace.  Specifically, the Ninth Circuit overturned a lower court decision dismissing a lawsuit filed by a county correctional officer who alleged

A new decision from the U.S. Court of Appeals for the Ninth Circuit continues to leave employers uncertain as to the enforceability of class action waivers in arbitration agreements.  The Seventh and Ninth Circuits are on one side of the issue, and the Second, Fifth, Eighth, and Eleventh Circuits on the other.  The Seventh and

To sit or not to sit, that is the question.  And now the California Supreme Court has given us an answer.  Well, sort of.  They have told us how to find the answer.  Even that’s a stretch.  Pull up a seat and I will explain.

To help it resolve two class actions involving California Wage Order requirements that employers provide employees with suitable seats, the Ninth Circuit recently certified some questions for the California Supreme Court.  The Supreme Court responded in Kilby v. CVS Pharmacy, Inc.  As stated verbatim in the Supreme Court’s responsive opinion, these were the questions posed by the Ninth Circuit:Lucas Clary 02_web

  1. Does the phrase “nature of the work” refer to individual tasks performed throughout the workday, or to the entire range of an employee’s duties performed during a given day or shift?
  2. When determining whether the nature of the work “reasonably permits” use of a seat, what factors should courts consider? Specifically, are an employer’s business judgment, the physical layout of the workplace, and the characteristics of a specific employee relevant factors?
  3. If an employer has not provided any seat, must a plaintiff prove a suitable seat is available in order to show the employer has violated the seating provision?”

If you just want the short answers, the opinion was kind enough to give us those right up front as well.  Again, verbatim:

  1. The “nature of the work” refers to an employee’s tasks performed at a given location for which a right to a suitable seat is claimed, rather than a “holistic” consideration of the entire range of an employee’s duties anywhere on the jobsite during a complete shift. If the tasks being performed at a given location reasonably permit sitting, and provision of a seat would not interfere with performance of any other tasks that may require standing, a seat is called for.
  2. Whether the nature of the work reasonably permits sitting is a question to be determined objectively based on the totality of the circumstances. An employer’s business judgment and the physical layout of the workplace are relevant but not dispositive factors. The inquiry focuses on the nature of the work, not an individual employee’s characteristics.
  3. The nature of the work aside, if an employer argues there is no suitable seat available, the burden is on the employer to prove unavailability.

So, there you go.  If you just wanted the answers, you can stop reading now.  But if you want a little elaboration and more background on how the Court arrived at those answers, and my thoughts on what employers should take away from the opinion, remain seated and continue ahead.

Continue Reading Pull up a Chair: California Supreme Court Weighs in on Suitable Seating

In passing the Employee Retirement Security Act of 1974 (“ERISA”), Congress sought to make it as easy and economical as possible for employers to provide benefits to their workers; for example, pensions, health insurance, life insurance and long-term disability (LTD) insurance.  However, because many of the statutes that govern benefit plans are so complicated, and since the regulations issued by the U.S. Department of Labor frequently are so convoluted, one must wonder if that goal will ever be realized.  A new decision by the Ninth Circuit may bring a bit more clarity to ERISA waters, but it also likely will make it more complex and costly for employers to offer LTD benefits to employees.Brenden-Begley-05_web

In Prichard v. Metropolitan Life Ins. Co., Ninth Circuit Case No. 12-17355, an employer outlined the LTD benefits it offered to employees in a document called a Summary Plan Description (“SPD”).  So far so good, as this is a widespread practice.  In so doing, the employer did not create a separate document known as a plan instrument.  Instead, the employer treated the SPD as the plan instrument – which also is a generally permissible and somewhat common practice.  As one would expect, the employer also obtained an insurance certificate from the carrier who would administer claims and provide benefit payments to eligible disabled employees. 
Continue Reading More ERISA Complications

BethWestBlogThe United States Supreme Court issued its decision in Integrity Staffing Solutions, Ins. v. Busk on December 9, 2014 and reversed the Ninth Circuit Court of Appeal in a much awaited wage and hour decision concerning the issue of “compensable time” under the federal Fair Labor Standards Act (“FLSA”).

The facts of the case are very straight forward.  Integrity Staffing Solutions, Inc. (“Integrity”) required its hourly non-exempt ware­house workers (who retrieved products from warehouse shelves and packaged them for delivery to Amazon.com customers), to undergo a security screening before leaving the warehouse each day.  A number of former employees sued Integrity alleging, in part, that they were entitled to compensation under the FLSA for the roughly 25 minutes each day that they spent waiting to undergo and undergoing those screenings. The employees also alleged that the company could have reduced that time to a de minimis amount by adding screeners or staggering shift terminations and that the screenings were conducted to prevent employee theft and, thus, for the sole benefit of the company and its customers.
Continue Reading VICTORY FOR EMPLOYERS…. The U.S. Supreme Court Holds that Employees are Not Entitled to Compensation for Time Spent Going through Employer’s Security Screening