The Supreme Court has refused to resolve competing appeals court views on the nature of donning and doffing, denying certiorari in Mountaire Farms Inc. v. Perez in late February.
Perez is the latest in a series of cases in which petitioners ask for further clarification on when employees must be paid for putting on and taking of work clothes. At issue is whether the activity is actually part of the job.
In the landmark 2005 case IBP, Inc. v. Alvarez, the high court held that the donning and doffing of protective gear by meat packers working was “an integral and indispensable” part of the work day and those workers were entitled to pay. But since then, the court repeatedly has refused to revisit the issue.
At least three federal courts have since read Alvarez to say that donning and doffing work gear is compensable only when the gear is unique. One court does not use the distinction between “unique” and “generic” gear, and another court simply considers whether donning and doffing itself counts as “work.” As a result of these different tests, factually identical cases have led to different outcomes.
In Sepulveda v. Allen Family Foods, Inc., the Supreme Court refused to consider whether the FLSA’s exclusion for time spent “changing clothes” applies to personal protective gear. There, employees sought review of a decision that personal protective equipment fell into the “changing clothes” exclusion under the FLSA, and therefore, time spent changing into personal protective equipment was not compensable. One court has held that the exclusion does not include personal protective equipment, although it has ruled that donning and doffing “non-unique protective gear,” such as hardhats, hairnets, or safety goggle, does not constitute “hours worked” and is therefore not compensable.
Similarly, in Gorman v. Consolidated Edison Corp., employees sought compensation for time they spent donning and doffing protective gear. The Second Circuit rejected their claim, holding that “a helmet, safety glasses, and steel-toed boots may be indispensable to plaintiffs’ principal activities without being integral.” Gorman also found that donning and doffing generic, non-unique protective gear is not “integral” merely because the employer requires it. The Supreme Court denied certiorari.
Tyson Foods v. De Ascensio was yet another industry case where workers had to wear non-unique protective gear (smocks, hairnets, earplugs, and safety glasses). There, the Third Circuit held that the donning and doffing in that case constituted “work” as a matter of law and therefore was compensable. Again, the Supreme Court denied certiorari.
As the law stands now, some federal courts review these cases under the “work vs. non-work” test (as in Tyson), while others use the “integral and indispensable” test (as in Gorman). While these cases are fact-sensitive, the use of different tests causes confusion and unpredictability. As the Mountaire petition noted, “[b]usinesses need clarity on the issue of what preliminary and postliminary activities are “integral and indispensable” to work, and thus compensable,” and which are not.
Employers in Maryland have 10 months to adjust their employee benefit policies, plan documents and plan language regarding dependents before a law legalizing same-sex marriage goes into effect. But that comes with a couple of caveats: (1) the law may be repealed before it even goes into effect; and (2) if it does go into effect, it will be in conflict with federal law and regulation — guaranteeing administrative complexity for employers and plan administrators, since they’ll have to apply divergent tax and other rules to the same benefits.
Gov. Martin O’Malley (D) signed the Civil Marriage Protection Act into law on March 1. The Maryland House of Delegates had passed H.B. 438, its version of the law, on Feb. 17; the Senate passed its version, S.B. 241, six days later. The measure goes into effect on Jan. 1, 2013.
What the Law Does
The measure changes language in state law stating that only marriage between a man and a woman is valid in Maryland to provide that “only a marriage between two individuals who are not otherwise prohibited from marrying” is valid in Maryland. It specifies that individuals may not marry their parents, children, siblings or grandparents, grandchildren, stepparents, nephews, nieces, aunts or uncles.
The new law contains protections for churches and religious groups and officials. Generally, it states that such organizations and individuals: (1) are not required to conduct same-sex marriages in violation of their doctrines; (2) cannot be fined or penalized for refusing to conduct same-sex weddings; and (3) may not be required to provide services, accommodations, advantages, facilities, goods or privileges related to a marriage that is in violation of the entity’s religious beliefs.
Effective Date Delayed
The bill originally provided for an effective date of Oct. 1, 2012. However, that date was extended to Jan. 1, 2013. This change is in anticipation of proposals by two state legislators for: (1) a statewide voter referendum; and (2) an amendment to the state constitution that would define marriage as between a man and a woman.
What This Means
Employers have the rest of 2012 to prepare to accommodate same-sex spouses in their benefit plans, plan documents and personnel policies — and to prepare to handle the administrative complications of having to apply conflicting state and federal laws. For instance, benefits provided to same-sex spouses will be accorded the same tax breaks under state law as benefits provided to opposite-sex spouses; however, benefits provided to same-sex spouses will be taxable income for purposes of federal law.
An employer may be tempted to wait to make preparations until after the November elections, since a statewide referendum may repeal the law and the state constitution may be amended to define marriage as between a man and a woman. However, while such procrastination may be justifiable, it may not be wise. At this point, it is certain that the law will go into effect on Jan. 1, but there isn’t yet a referendum item on the November ballot; nor is a proposed amendment on the ballot.
Waiting to prepare based on the assumption that these proposals will make it onto the ballot and be passed by voters — therefore repealing the law — could be risky. If these proposals do not secure sufficient support to be on the November ballot — or if they do make it on the ballot and then fail, employers may have to make adjustments in a hurry.
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