Work clothes?

Employees are not ordinarily entitled to be paid for changing into work clothes.  Under Fair Labor Standards Act § 203(o), time spent “changing clothes or washing at the beginning or end of each workday” is excluded from compensable time.  Until last month, that exception also applied to protective gear.  When workers put on their mesh aprons, plastic belly guards, mesh sleeves, plastic arm guards, wrist wraps, mesh gloves, rubber gloves, polar sleeves, rubber boots, shin guards and weight belts before a day processing meat, they were just getting dressed for work.

That has changed.

The exception for changing “clothes” no longer includes “the modern-day protective equipment commonly donned and doffed by workers in today’s … industries where protective equipment is required by law, the employer, or the nature of the job,”  according to the DOL.

Even though putting on a uniform is still not paid time, that activity may be enough to signal the start of the continuous working day.  Anything the employee does after he changes into his work clothes—travel time or waiting, for example—may now be compensable under the FLSA.

You may have a “use it or lose it” policy.  Your manual probably encourages employees to take advantage of their well-earned time off because it expires at the end of the year.  Until last summer, many employers believed they didn’t have to pay departing employees for  such earned but unused vacation time.

Last June, the Supreme Judicial Court clarified the situation. Even if vacation time cannot accumulate from year-to-year, and the employer doesn’t consider the vacation time “earned,” vacation time that accrues during the year is “wages,” and must be paid in full at termination.

Employees may not be forced to use up paid vacation or sick time before taking unpaid maternity leave under the Massachusetts Maternity Leave Act.

The Massachusetts Maternity Leave Act (“MMLA”) guarantees full-time female employees eight weeks of maternity leave, when giving birth or adopting a child.   This maternity leave is unpaid. An employee may choose to use vacation or sick time concurrently with her MMLA leave, but she may not be required to exhaust her paid sick and vacation time in order to use her MMLA leave.

–Nora Adukonis

]]> http://rosenlawoffice.com/vacation-days-are-wages/feed/ 0 http://rosenlawoffice.com/no-such-thing-as-a-free-intern/ http://rosenlawoffice.com/no-such-thing-as-a-free-intern/#comments Sat, 08 May 2010 18:36:20 +0000 joelrosen http://rosenlawoffice.com/?p=290 On-the-job experience is a valuable thing.  As a graduate of Northeastern University School of Law – a school known for its cooperative education program—no one knows this better than me.   Unpaid internships allow students to get their feet wet.  With the economic downturn, students recognize the value of adding experience –even unpaid—to their resumes. However, when an employer uses unpaid interns to supplement its regular workforce, that’s probably a wage-and-hour violation.

Many employers scrupulously comply with Federal and State overtime, minimum wage, and payment of wages laws –not to mention income tax withholding and worker’s compensation laws—but think nothing of allowing a college student to work alongside regular employees, for no wages at all. The college student might be quite content with receiving only experience in return.   However, Federal Law doesn’t allow the parties to benefit from this voluntary relationship—at least in a for-profit context.

“Individuals who are ‘suffered or permitted’ to work must be compensated under the law for the services they perform for an employer.”  Interns –even those receiving academic credit—must be treated as employees unless all of the following criteria are met:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern, and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship

Number four is the kicker. An employer may not derive any immediate advantage from the activities of the intern. That means no filing, no answering phones, no sorting mail. Nothing that actually helps the employer, in other words:

“If the interns are engaged in the operations of the employer or are performing productive work (for example, filing, performing other clerical work, or assisting customers), then the  fact that they may be receiving some benefits in the form of a new skill or improved work habits will not exclude them from the FLSA’s minimum wage and overtime requirements because the employer benefits from the interns’ work.”

If you’re still wondering whether that bright young person in your office is an intern or an employee, or want advice on having interns while still complying with the law, give us a call.

–Nora Adukonis

Oxygen isn’t flammable, but it accelerates fires.  In an oxygen-rich atmosphere, an ember—like the one on the end of a cigarette—will burst into flame.   If you are using oxygen equipment for a respiratory problem—as smokers often must—the gas will seep into your clothes and hair.  The consequences can be dire.

“I had one woman die in a fire,” a medical equipment rep told me.  “When they found her, the plastic tubes from the oxygen were melted to her face and neck.”  Horror stories like that abound in fliers and press releases from the state fire marshal’s office.  “A 71-year-old man who used home oxygen died in a flash fire,” reads one.  “Even after shutting off the oxygen, his clothing and the room were still oxygen enriched. When he lit his cigarette, his clothing suddenly caught fire.  His wife and daughter suffered burns on their hands trying to extinguish the flames.”

In 2009, home oxygen was a factor in five severe fire incidents, according to statistics compiled by the fire marshal.  There have been 24 deaths since 1997 and more than 50 serious injuries.  “There is no safe way to smoke if you use home oxygen,” the fire marshal’s office adds.  “Even after the tank may be shut off, the danger remains.”

If it’s so dangerous, why not make it illegal?  The answer is that they’ve tried.  The Board of Fire Prevention Regulations has considered the problem and always stepped away from it—partly because the Commonwealth’s ban on public smoking does not apply to residences, private clubs, churches, hotel rooms, and in some cases even nursing homes.  There’s a reluctance to ban oxygen users from these places, when smokers are allowed.

So what we have instead is a PR campaign, which started in January, where the fire marshal says bluntly,   “Do not allow smoking inside of a home where oxygen is used.”  Nonsmoking tenants will put the landlord on notice and demand a response.  Then it’s up to individual building owners and management companies to enforce that prohibition or risk being sued for negligence when their invitees—literally–light up.

Some public housing authorities have banned all smoking, as the city of Boston is planning to do.  But that’s not easy for a private landlord.  First, it’s a restriction the lease didn’t contain when the tenant signed it.  A smoker could say it’s a breach of contract.  Second, it’s not easy to rent apartments these days.  Tenants might move somewhere where they can poison themselves and stink up their apartments in peace.

Of course, the landlord can simply ignore the warning.  Fast forward to the trial after the fire.  Plaintiff’s attorney, dramatically pointing his finger at the landlord’s chest:  “So you knew about the fire marshal’s warning:  ‘Do not allow smoking inside of a home where oxygen is used.’  Is there anything about that warning you did not understand?  And the other tenants begged—literally begged—you to take action, correct?  And you decided, for financial reasons, to ignore them, didn’t you?  You valued money over the lives of the people you had a duty to protect….”

The third alternative is to promulgate a policy.  But what would that say?  You can’t tell, from the hallway, whether the oxygen is on when someone is smoking.  And the danger remains even after the oxygen has been turned off.  That means you have to ban all smoking and open flame in apartments where oxygen generating equipment is used, whether or not it’s turned on.

Smokers will say the rule violates their civil rights.  “I didn’t fight in World War II so I could be told what to do in my own apartment,” a tenant of one elderly housing complex said to me during a discussion of the landlord’s new policy.   Condo owners will feel even more strongly about being told what they can do in the units they own.

It’s not hard to formulate a response to the claim of a vested right to smoke in one’s home.  I’ve looked in the Constitution, and I can’t find a fundamental right to set fire to your neighbors.   Smokers are not a protected class, and smoking is not a disability.   See Brashear v. Simms, 138 F.Supp.2d 693, 695 (D.Md. 2001); 42 U.S.C. § 12201(b).

Tenants will probably say the new rule is a material change in the terms of the lease they signed when they moved in.  They’ll say they relied on those terms when they left their former homes or apartments—where they smoked at will.

If a landlord wants to wait until the lease renews, he can insert an appropriate provision into the new lease.  But waiting, in the face of a known danger, may not be an option.  Any decent apartment complex lease has a provision that allows the landlord to promulgate rules that are not inconsistent with its terms.  And it probably has a general prohibition against acts that cause or threaten to cause physical harm or hazardous conditions to others.

A bit thornier is the claim of discrimination.  “My rights are being stepped on,” a tenant said to me.  “I’m disabled.  I need oxygen.  And there’s nothing outside to sit on.  I’m getting it both ways.”   Having emphysema or some other respiratory illness meets the definition of a handicap, because it interferes with major life activities.  If only handicapped tenants are forbidden to smoke in their apartments, they will say the rule is discriminatory.  They are being denied a privilege afforded to every other tenant.  The landlord would be well advised to enter into a dialog with the tenants to see what, if any, accommodation is reasonable.

The first thing smokers will suggest is that the old-fashioned, green tanks—which just pour oxygen into the air—are a thing of the past.  They’ll argue that the new delivery systems produce oxygen on demand.  It goes into the patient’s lungs and comes out as carbon dioxide, eliminating any danger of fire.  I actually called up corporate counsel for the company that makes the new systems and explained that I was trying to straddle the line between an MCAD complaint and a wrongful death action.  “I feel your pain,” she said, laughing.  As long as she was in a good mood, I asked whether she would write me a letter stating that the equipment was safe around cigarettes.  She stopped laughing.  “There is no type of oxygen that is safe for smoking,” she said.  “If we know they’re smoking, we often require them to sign a waiver.”

Next, they’ll ask for a smoking lounge, but that’s probably not an option.  The public smoking statute, G.L. c. 270, § 22, permits a “designated smoking room” in a “lodging home.”  It seems, at first glance, that an apartment complex fits the definition of a dwelling which contains rooming units in which space is let for compensation.   But according to Cheryl Sbarra, senior staff attorney for the Massachusetts Association of Health Boards, this provision refers to dormitories and boarding houses—not apartment buildings.  “This is not the first time a landlord asked whether he could build a private smoking room,” she said.  “The answer has always been, unequivocally, no.”

The best the landlord can do is to create an outdoor space, which is not enclosed, where people can smoke.  He could designate a covered area near the building where tenants can stay out of the rain and sit comfortably as they pollute the air.  But they’ll have to leave their oxygen tanks behind.

Joel originally published this story in Massachusetts Lawyers Weekly on April 26, 2010.

A New Mexico man has sued his neighbor for aggravating his “electromagnetic sensitivities.”   Arthur Firstenberg is seeking $530,000 in damages from Raphaela Monribot, claiming that her laptop computer, wireless router, i Phone, and dimmer switches cause him symptoms including nausea, vertigo and heart arrhythmia.   We will be interested in what a jury thinks of these claims.

Meanwhile, if an employee complains of electromagnetic hypersensitivity, the employer’s analysis is no different from any other allegation of a disability.  The first question is whether a disability exists.  Does the condition interfere with the employee’s major life activities?  This is a question to be addressed by medical professionals—the client’s doctor and your own advisors.  Our nonscientific web search raises questions of whether this sensitivity is real or imagined.

The employee may really be suffering from headache, fatigue, tinnitus, dizziness, memory deficits, irregular heart beat, whole-body skin symptoms, or other symptoms—but it may not be your router that is causing them.  “Sufferers and their support groups are convinced of a causal relationship with electromagnetic fields, but presently the scientific literature does not support such a link….  Double-blind experiments have been published, each of which has suggested that people who report electromagnetic hypersensitivity are unable to detect the presence of electromagnetic fields and are as likely to report ill health following a sham exposure, as they are following exposure to genuine electromagnetic fields.”

Even when an employer is skeptical about a claim of disability, we usually advise taking it seriously and entering into a dialog about what accommodation is reasonable.  As most of the microwave radiation probably originates outside the office, it may impossible for the individual employer to stop it.  The expense of shielding the office may be prohibitive.   If it is practical to allow the employee to work from home, that is one possibility that can be considered.  There are devices on the Internet that claim to block microwaves, although we are far from persuaded of their efficacy.

It’s possible there is nothing you can do.  If the employee has a reasonable suggestion, you might want to hold your skepticism in check and wait for other parties to fight over whether this is a real disability or not.

Susan McBride, a Detroit city planner, sued the city for discrimination after a coworker’s perfume caused health problems.  (McBride v. City of Detroit, No. 07-12794.)  The office-mate used strong perfume and plugged in a room deodorizer too.  The smells overcame McBride to the point where she missed work and had to undergo medical treatment.

McBride asked the city to adopt a “no-scent” policy.  The city declined and later argued that such a policy was not a reasonable accommodation, because it would present an undue hardship.  The federal court disagreed.  The policy she requested was based on one already in use at the Michigan Dept. of Information Technology.  It did not prohibit all scents but stated that “mild scents may be worn in moderation, but strong or offensive scents that become detrimental to the work unit will not be tolerated.”   McBride settled for $100,000.

Almost one in five people has a respiratory problem of some kind and can be affected by the chemicals used in creating fragrances.  Common symptoms are headaches, breathing problems, and nausea.

Many employers—particularly medical offices—are adding no-scent policies to their employment manuals.   Some of these are so strict that they prohibit flowers and magazines with perfumed inserts.  Others, like the one McBride advocated, are more flexible.

You may not need a scent-free policy at all.  You need to listen to your employees and take their requests for accommodation seriously.  In a rock ballad it may be all right for the smell of cheap perfume to go on and on and on—but not at the office.

]]> http://rosenlawoffice.com/a-fragrance-free-workplace/feed/ 4 http://rosenlawoffice.com/were-back/ http://rosenlawoffice.com/were-back/#comments Fri, 19 Mar 2010 02:36:17 +0000 joelrosen http://rosenlawoffice.com/?p=241 The flood waters receded.  A dove flew in with an olive branch.  The power company flipped on the breakers.  And we’re back in business.  We’d like to thank our friends for their patience and good wishes during the past two days.

Business as Usual

We were able to work from home and forwarded our phones and e-mail, so clients were able to reach us without a problem.  Here is another view of our building and parking lot.

Before Smith, a plaintiff had to show that the employer intentionally treated him differently from other workers due to his age.   Smith made it clear that an employer’s action could be discriminatory even if it merely had a disparate impact on older workers.

If Smith made the employee’s case easier to prove, it also lightened the employer’s burden.   The Court said employers no longer need to show that their action was justified by a business necessity.  They simply need to demonstrate that the action was reasonable and was based on something other than age.

The EEOC’s regulations haven’t kept up with that change.  They still say an employment practice that has an adverse impact on older workers “can only be justified as a business necessity.”  The proposed rule gets rid of that requirement.  It says,  “whether a particular employment practice is based on reasonable factors other than age turns on the facts and circumstances of each particular situation and whether the employer acted prudently in light of those facts.”

The proposed rule sets up standards for determining whether the practice is reasonable.  Those factors include: whether the employer took steps to assess the adverse impact of its employment practices on older workers; the extent to which older workers may be harmed by the policy; and whether “other options” were available to the employer.

When an employer has to show that “other options” weren’t available, it sounds suspiciously like the old “business necessity” standard.  But the EEOC  indicates the employer isn’t required to use the other options.   Their availability is one factor to consider in deciding whether the action was reasonable.