Tag Archives: seventh circuit court of appeals

Donning and Doffing: paying for changing “work clothes”?

The U.S. Supreme Court agreed Tuesday to decide the Donning and Doffing issue as, how does Section 203(o) of the Fair Labor Standards Act (“FLSA”) define “changing clothes.”

In Sandifer v. U.S. Steel, a class of 800 members filed a collective action against U.S. Steel Corp.  The issue on the 7th Circuit Court was whether workers deserved overtime pay for the time spent changing into work clothes and walking from locker rooms to their work site.

The FLSA ordinarily requires that workers be paid at least the federal minimum wage for all hours worked, and time and a half for hours worked over 40 hours in a week.  However, Section 203(o) provides that any time spent changing “clothes” at the beginning or end of each workday may be excluded from working time by the express terms of, or custom or practice under, a bona fide collective bargaining agreement.  In Sandifer, the collective bargaining agreement did not require compensation for changing time.

In this collective action, the class argued that Section 203(o) exclusion was inapplicable because their work attire did not constitute “clothes,” but rather “safety equipment.”  The alleged work clothes in this case included: flame-retardant pants and jacket, work gloves, metatarsal boots, hard hats, safety glasses, ear plugs, and a “snood” (a hood that covers the top of the head, the chin, and the neck).

The district court held that the FLSA did not require compensation for clothes-changing time.  The 7th Circuit Court of Appeals affirmed.  The 7th Circuit explained that the articles seems to be clothing.  The 7th Circuit stated that the articles of clothing were both, clothing and personal protective equipment,

Protection – against sun, cold, wind, blisters, stains, insect bites, and being spotted by animals that one is hunting – is a common function of clothing, and an especially common function of work clothes worn by factory workers.  It would be absurd to exclude all work clothes that have a protective function… and thus limit the exclusion largely to actors’ costumes and waiters’ and doormen’s uniforms.  Remember that the section covers not only clothes-changing time but also washing-up time, and workers who wear work clothes for self-protection in a dangerous or noxious work environment are far more likely to require significant time for washing up after work than a waiter.”

(emphasis added).

In addition, the 7th Circuit relied heavily on the fact that the collective bargaining agreement did not imply that workers were to be compensated for the time spent changing into work clothes, and washing up and changing back.

via Courthouse News Service.

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Filed under Appellate, civil rights, courts, employment, labor, legal decision, Supreme Court, union, wage

Lawyer’s misconduct did not prevent class action certification

In a class action, lawyers’ conduct when contacting (or trying to contact) possible putative class members, is regulated by the court or federal statute.

In this case, the 7th Circuit Court of Appeals determined  that class counsel’s faxing of unsolicited advertisement was misconduct.  The decision rested on the question of whether the law firm bribed a third-party in order to obtain a list of the possible putative class members.  Due to a lack of evidence that the payment of $5,000 was a bribe, the court allowed the class to be certified.

I raise this case because it raises the issue of attorney misconduct.  First of all, there are across-the-states ethics rules that govern attorneys’ conduct.  You can access ethics rules governing attorneys by going to the state court’s website and looking for the Board of Professional Responsibility or ethics rules.

As the 7th Circuit Court of Appeals highlighted multiple times, the law firm’s misconduct could possibly warrant disciplinary action.  The Court of Appeals commented that litigants and attorneys should report to the relevant bar authority (the Board of Professional Responsibility) instances of attorney misconduct.  Otherwise, the court warned, unpunished and inappropriate attorney conduct will continue.

In fact, there are ethical rules that discuss the reporting of misconduct.  In Minnesota, Rule 8.3 discusses the reporting of professional misconduct.  Rule 8.3 states, in relevant part,

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

Secondly, in a class action, the class representatives through their class counsel must show that the class counsel can appropriately represent the class.  In other words, the court must decide that the law firm can properly represent the entire class (which may in the hundredths).

So, if a law firm possibly engaged in misconduct, i.e. shows a lack of integrity – is the law firm’s representation proper?  The court did state that unethical conduct (regardless of whether it is prejudicial) raises “serious doubt” as to counsel’s ability to adequately represent the class.

via Courthouse News Service.

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Filed under Appellate, attorneys, courts, legal decision, Minnesota, rules, sanctions, Supreme Court