June 2014 FBA Labor and Employment Law Third Circuit Update

Stephen E. Trimboli, Esq.

Trimboli & Prusinowski, L.L.C.

An employer need not demonstrate specific intent to take advantage of the special FLSA overtime exception for public safety employees under 29 U.S.C. Sec. 207(k). And the employer’s established custom and practice under its labor agreement of not compensating employees for time spent changing into and out of uniforms is lawful under 29 U.S.C. Sec. 203(o).

Rosano, et al v. Township of Teaneck, ­— F.3d —-, 2014 WL 2576962, C.A.3 (N.J.), June 10, 2014, available at www2.ca3.uscourts.gov/opinarch/131263p.pdf

The Rosano matter arose from an action commenced by eighty-eight former and current Teaneck Township police officers under the federal Fair Labor Standards Act (FLSA) for alleged overtime payments owed. The District Court granted summary judgment in Teaneck’s favor on all of the plaintiffs’ claims, and the Third Circuit affirmed. In doing so, the Third Circuit addressed two significant issues under the FLSA: Application of the public safety employee exception under 29 U.S.C. Sec. 207(k), and whether Teaneck’s established custom and practice under its labor agreement of not compensating employees for time spent changing into and out of uniforms was lawful under 29 U.S.C. Sec. 203(o).

The FLSA generally requires employers to pay their employees at overtime rates, (one and one-half times the employee’s regular rate of pay), for all work in excess of forty hours per work week. 29 U.S.C. 207(a)(1). However, 29 U.S.C. Sec. 207(k) contains a partial exception for public employers that employ law enforcement or fire protection personnel. The partial exception has two components. First, in lieu of the standard seven-day work week, the public employer may establish a “work period” that may be a minimum of seven or as long as twenty-eight days in length. Second, in lieu of the standard forty hour threshold, overtime pay is required for all hours worked in excess of 212 hours in a twenty-eight day work period for fire protection employees, and in excess of 171 hours in a twenty-eight day work period for law enforcement employees. 29 C.F.R. Sec. 553.230(c). For work periods of less than twenty-eight days, the respective overtime work hour thresholds are reduced proportionately. For work periods of the minimum duration of seven days, the overtime thresholds are 53 hours for fire protection and 43 hours for law enforcement. Id.

FLSA regulations define a “work period” as “any established and regularly recurring period of work.” 29 C.F.R. Sec. 553.224(a). Teaneck argued that two such “work periods” existed in its police department. Certain officers worked a “Six and Three” schedule consisting of six eight-hour tours followed by three days off – 48 hours worked in a nine-day work period. Other officers worked a “Five and Two” schedule consisting of five eight-hour tours followed by two days off – 40 hours worked in a seven-day work period.

Under the 207(k) exception, officers on the “Six and Three” schedule would not be entitled to overtime under the FLSA until they worked 55 hours within their nine-day work period, leaving an apparent cushion of seven hours between their contractual work week and the FLSA overtime threshold. Sec. 553.230(c). Officers on the “Five and Two” schedule would not be entitled to overtime under the FLSA until they worked 43 hours within their seven-day work period, leaving an apparent cushion of three hours between their contractual work week and the FLSA overtime threshold.

The plaintiffs, however, argued that Teaneck was not entitled to take advantage of the 207(k) exception because Teaneck had never “intended” to adopt the exception. According to the plaintiffs, the mere existence of established and regularly recurring period of work is not sufficient; rather, the employer must demonstrate a specific intention to adopt the 207(k) exception.

This was a question of first impression for the Third Circuit. However, the Rosano Court joined the First, Seventh, Eighth, Tenth and Eleventh Circuits in holding that a specific intention to adopt the 207(k) exception is not required. The Rosano Court based its holding on the text of 29 U.S.C. 207(k) itself, which contains no language requiring employers to express their intent to qualify for or operate under the exception. The Rosano Court reasoned:

The Rosano Court also noted that every other federal Court of Appeals “to consider this issue {has} held that, in order for an employer to qualify for the {Section} 207(k) exemption, only a factual inquiry is involved and no notice or declaration of intent is required on the part of the employer.”

Because it was undisputed that seven or nine day “work periods” actually existed in Teaneck, the Rosano Court concluded that Teaneck could lawfully utilize the Section 207(k) exception.

The Rosano Court then went on to address clothes-changing time under 29 U.S.C. Section 203(o). This FLSA provision excludes from “hours worked” any time spent changing clothes or washing at the beginning or end of a work day, when such an exclusion is established either by the express terms of, or a custom and practice existing under, a bona fide collective bargaining agreement applicable to the employees in question. Such a custom and practice was found to exist in Teaneck. However, the Rosano Court was then called upon to apply the definition of “clothes” recently propounded by the United States Supreme Court in Sandifer v. United States Steel Corp., _U.S._, 134 S.Ct. 870 (2014).  The Sandifer Court distinguished “clothing” from wearable items that are not clothes, such as equipment and devices. Time spent changing clothes is not considered time worked under the FLSA, but time spent putting on and removing wearable items that are not clothes is considered time worked. When both clothes and wearable items that are not clothes are involved, courts must determine “whether the period at issue can, on the whole, be fairly characterized as ‘time spent in changing clothes or washing.’” Sandifer, 134 S.Ct. at 881, emphasis in original.

Applying this standard, the Rosano Court analyzed the twenty-seven items that the plaintiffs assigned to the Uniform Division change into at the beginning, and out of at the end, of the work day. Fourteen of the items constituted clothing, and thirteen of the items constituted wearable items that are not clothes. The Rosano Court then reasoned:

The Court therefore concluded that Teaneck’s officers were precluded from seeking compensation “for time spent doffing and donning their uniforms and safety equipment.”

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The Younger abstention doctrine precludes federal courts from enjoining administrative disciplinary proceedings for public employees established under state law.

Gonzalez v. Waterfront Commission of the New York Harbor, — F.3d —-, 2014 WL 2724127, C.A.3 (N.J.), June 17, 2014, available at www2.ca3.uscourts.gov/opinarch/132023p.pdf

This matter involved a detective employed by the Waterfront Commission of New York Harbor, a bi-state agency of New York and New Jersey, who offered a sworn affidavit in support of a co-worker’s unsuccessful lawsuit against the Waterfront Commission under the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964. After the termination of the co-worker’s lawsuit, the Waterfront Commission initiated disciplinary action against the detective for making what the Waterfront Commission considered to be false statements in his affidavit. The detective thereupon commenced action in the United States District Court for the District of New Jersey to enjoin the Waterfront Commission from processing disciplinary charges or conducting a disciplinary hearing, on the ground that the Waterfront Commission’s action against him constituted unlawful retaliation under the ADA, Title VII, and the First Amendment. The District Court terminated the lawsuit based on the Younger abstention doctrine. On appeal, the Third Circuit affirmed.

The Younger abstention doctrine, first announced by the United States Supreme Court in Younger v. Harris, 401 U.S. 37 (1971), and subsequently extended, instructs federal courts to decline requests to enjoin state criminal proceedings, and certain state civil and administrative proceedings, absent a showing of bad faith or intent to harass. While the Gonzalez appeal was pending, the United States Supreme Court decided Sprint Communications, Inc. v. Jacobs, _U.S._, 134 S.Ct. 584 (2013), which more clearly defined the category of state civil and administrative proceedings to which the Younger abstention doctrine applies. As the Gonzalez Court explained:

In the case of civil enforcement proceedings, such as the proceeding at issue in Gonzalez, abstention generally is appropriate only when the state civil enforcement proceeding is  “akin to a criminal prosecution” in “important respects:”

The Gonzalez Court then reasoned:

The disciplinary proceeding was designed to punish the detective for conduct that the Waterfront Commission deemed to be “contemptible,” and the penalty the detective faced if the charges were sustained is clear: Termination from employment.

Having determined that the Waterfront Commission’s disciplinary proceeding fell within the category of state enforcement proceedings eligible for Younger abstention, the Gonzalez Court then applied the three-part test articulated in Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423 (1982), to determine whether abstention was appropriate. The Middlesex factors include whether the state administrative hearing (1) was judicial in nature, (2) implicated important state interests, and (3) offered an adequate opportunity for Gonzalez to present his federal claims. The Gonzalez Court concluded that each of the Middlesex factors was satisfied.

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The Third Circuit addresses three procedural questions of first impression in the Circuit with respect to employment discrimination claims

Hildebrand v. Allegheny County, — F.3d —-, 2014 WL 2898527, C.A.3 (Pa.), June 27, 2014, available at www2.ca3.uscourts.gov/opinarch/131321p.pdf

In this decision, the Third Circuit addressed three procedural issues of first impression the Circuit. First, the Third Circuit held that a state or local government employee may not pursue an age discrimination claim under 42 U.S.C. Sec. 1983, but must instead bring suit under the Age Discrimination in Employment Act, 29 U.S.C. Sec. 621, et seq.

Second, the Third Circuit held that a plaintiff need not plead exhaustion of administrative remedies with the level of specificity required for the underlying cause of action under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). It is sufficient for the plaintiff to plead in general terms that the required administrative process has been completed.

Third, the Third Circuit held that the Intake Questionnaire currently in use by the Equal Employment Opportunity Commission (EEOC), when properly completed, constitutes a charge of discrimination. The importance of this holding is that a complainant who submits a fully completed Intake Questionnaire to the EEOC within 300 days of the last date of alleged discrimination will be deemed to have timely filed a charge with the EEOC and will not have his or her charge time-barred, even if the complainant had not submitted a formal charge of discrimination within the 300-day time frame.