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5th Cir.: Where Employees Were Represented in Grievance Process By Their Union and Its Attorneys, Private Settlement of a Bona Fide Dispute Enforceable
August 18, 2012 10:01 am / 1 Comment on 5th Cir.: Where Employees Were Represented in Grievance Process By Their Union and Its Attorneys, Private Settlement of a Bona Fide Dispute Enforceable
Martin v. Spring Break '83 Productions, L.L.C.
Following the entry of summary judgment on behalf of the defendants, the plaintiffs appealed. As discussed here, plaintiffs challenged the trial court's holding that the private settlement reached between their union and one of their alleged employers was binding and enforceable. Specifically, the plaintiffs argued that absent: (1) court approval, (2) DOL supervision, or (3) a showing that they had been paid their wages in full without compromise, the settlement previously reached was not binding and/or enforceable. Affirming the decision below, the Fifth Circuit held that the settlement agreement was binding and enforceable notwithstanding the lack of court or DOL supervision, because it was a resolution of a bona fide dispute. While it is not entirely clear, it appears that the Fifth Circuit reasoned that the agreement, at least arguably could be said to be "without compromise," thus making it binding and enforceable.
The case concerned grips and other movie production employees who worked on the set of a movie. Laying out the relevant procedural/factual background, the Fifth Circuit explained:
The plaintiffs "filed a grievance against Spring Break Louisiana alleging that they had not been paid wages for work they performed. The Union sent a representative to investigate the merits of the claims. After his investigation, the representative concluded that it would be impossible to determine whether or not Appellants worked on the days they alleged they had worked. The Union and Spring Break Louisiana entered into a Settlement Agreement pertaining to the disputed hours allegedly worked by Appellants."
Discussing the issue of whether the private settlement here was binding and enforceable the Fifth Circuit reasoned:
The district court concluded that the plain language of the Settlement Agreement "is binding upon the [Appellants] in their individual capacities and prohibits those individuals from pursuing future legal action against Spring Break Louisiana after receiving their settlement payments." We agree. The Settlement Agreement, in relevant part, states:
The Union on its own behalf and on behalf of the IATSE Employees agrees and acknowledges that the Union has not and will not file any complaints, charges or other proceedings against Producer, its successors, licenses and/or assignees, with any agency, court, administrative body, or in any forum, on condition that payment in full is made pursuant to the terms of this Settlement Agreement.
The Settlement Agreement also states that the Union "has the full power and authority to enter into this Settlement Agreement on behalf of IATSE Employees and bind them in accordance with the terms hereof." By this plain language, the Appellants, who were IATSE Employees, were bound by its terms. Appellants contend, however, that the Settlement Agreement is unenforceable because they never signed it or agreed to it—instead, the Settlement Agreement was signed by Union representatives. However, Appellants do not dispute that they received full payment for their claims pursuant the terms of the Settlement Agreement. Nor do Appellants dispute that they cashed the Settlement Agreement payment checks they received. The Appellants were members of the Union and, under the CBA, Spring Break Louisiana recognized "the Union as exclusive representative of the employees in the bargaining unit." Considering that Appellants, who were members of the Union, received and accepted full payment for their FLSA claims under the Settlement Agreement, the fact that Appellants did not themselves personally sign the Settlement Agreement does not render it unenforceable. See N.L.R.B. v. Allis–Chalmers Mfg. Co., 388 U.S. 175, 180, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967) ("The employee may disagree with many of the union decisions but is bound by them.").
On appeal, the plaintiffs argued that the settlement agreement was not binding and enforceable, because generally individuals may not privately settle FLSA claims. In response the defendants argued that that a private compromise of claims under the FLSA is permissible where there exists a bona fide dispute as to liability (and as to the amount of appropriate damages). After a discussion of the relevant Fifth Circuit precedent, the court agreed with the Defendants and held the settlement agreement at issue to be enforceable.
Significantly the court reasoned:
[H]ere, there is a bona fide dispute between Appellants and Spring Break Louisiana over the number of hours for which they are owed their set rate of pay. In fact, the Union representative conducted an investigation into the dispute and received conflicting information from various sources, ultimately concluding that it would be impossible to determine whether or not Appellants worked on the days they claimed they had worked in their grievance. Approving of this rationale, we hold that the payment offered to and accepted by Appellants, pursuant to the Settlement Agreement, is an enforceable resolution of those FLSA claims predicated on a bona fide dispute about time worked and not as a compromise of guaranteed FLSA substantive rights themselves. See Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 714, 65 S.Ct. 895, 89 L.Ed. 1296 (1945) ("Our decision … has not necessitated a determination of what limitation, if any, Section 16(b) of the [FLSA] places on the validity of agreements between an employer and employee to settle claims arising under the Act if the settlement is made as the result of a bona fide dispute between the two parties, in consideration of a bona fide compromise and settlement."); see also D.A. Schulte, Inc. v. Gangi, 328 U.S. 108, 114–15, 66 S.Ct. 925, 90 L.Ed. 1114 (1946) ("Nor do we need to consider here the possibility of compromises in other situation which may arise, such as a dispute over the number of hours worked or the regular rate of employment."); 29 U.S.C. § 253(a).
Apparently the court also believed that the settlement at issue here could arguably be said to be "without compromise" such that the third permissible basis for an enforceable private settlement was met:
Notably, in Thomas v. Louisiana, 534 F.2d 613 (5th Cir.1976), we held that a private settlement of FLSA claims was binding and enforceable where the settlement gave employees "everything to which they are entitled under the FLSA at the time the agreement is reached." Id. at 615. We explained that, "[a]lthough no court ever approved this settlement agreement, the same reason for enforcing a court-approved agreement i.e., little danger of employees being disadvantaged by unequal bargaining power[,] applies here." Id. Here, Spring Break Louisiana and the Union agreed in the Settlement Agreement that the payments Appellants were paid pursuant to that agreement were the "amounts due and owing" for the disputed number of hours they claimed they had worked and not been paid for. The Settlement Agreement was a way to resolve a bona fide dispute as to the number of hours worked—not the rate at which Appellants would be paid for those hours—and though Appellants contend they are yet not satisfied, they received agreed-upon compensation for the disputed number of hours worked.
Lastly, the court distinguished a settlement privately negotiated by a union and its attorneys from a situation where a labor union purports to waive an employees' rights under the FLSA through a collective bargaining agreement, a longstanding no-no under well-established FLSA jurisprudence:
Finally, Appellants contend, citing Barrentine v. Arkansas–Best Freight Sys., 450 U.S. 728, 745, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981), that because the Supreme Court has held that a union cannot waive employees' rights under the FLSA through a collective bargaining agreement, they cannot have settled their FLSA claims in the Settlement Agreement, which was arrived at through the Union-facilitated grievance procedure laid out in the CBA. See Barrentine, 450 U.S. at 745, 101 S.Ct. 1437 ("FLSA rights … are independent of the collective-bargaining process. They devolve on petitioners as individual workers, not as members of a collective organization. They are not waivable."). Although the terms and conditions of Appellants' employment with Spring Break Louisiana were covered by a collective bargaining agreement, Barrentine is distinguishable. In Barrentine, the plaintiffs' grievances based on rights under the FLSA were submitted by the union to a joint grievance committee that rejected them without explanation, a final and binding decision pursuant to the collective bargaining agreement. 450 U.S. at 731, 101 S.Ct. 1437. Here, Appellants accepted and cashed settlement payments—Appellants' FLSA rights were adhered to and addressed through the Settlement Agreement, not waived or bargained away. The concerns the Court in Barrentine expressed, that FLSA substantive rights would be bargained away, see id. at 740, 101 S.Ct. 1437 ("This Court's decisions interpreting the FLSA have frequently emphasized the nonwaivable nature of an individual employee's right to a minimum wage and to overtime pay under the Act. Thus, we have held that FLSA rights cannot be abridged by contract or otherwise waived because this would 'nullify the purposes' of the statute and thwart the legislative policies it was designed to effectuate."), are not implicated by the situation here where Appellants' Union did not waive FLSA claims, but instead Appellants, with counsel, personally received and accepted compensation for the disputed hours. We reiterate that FLSA substantive rights may not be waived in the collective bargaining process, however, here, FLSA rights were not waived, but instead, validated through a settlement of a bona fide dispute, which Appellants accepted and were compensated for. Therefore, the district court did not err by finding an enforceable release resolving this wage dispute.
Given, the somewhat unique facts of this case, it remains to be seen whether the Fifth Circuit's decision while trigger a change in longstanding FLSA jurisprudence regarding the enforceability of privately-negotiated settlements, or whether this case will remain an outlier, largely limited to its facts. For example, it is not clear whether the settlement would have been enforced absent the fact that plaintiffs were represented by both their union and attorneys in the negotiations, or if this was a "straight time" case where there was demonstrative evidence of the precise number of hours at issue. Stay tuned, for what's likely to be an influx of cases where defendant-employers seek to expand this case's holding while plaintiff-employees seek to limit the holding to the facts at bar (which are not likely to be oft-repeated).
Click Martin v. Spring Break '83 Productions, L.L.C. to read the entire Decision. For an excellent historical overview of more typical decisions regarding the enforceability of private settlements of FLSA claims click here to read an outline from the folks at Outten & Golden.
9th Cir.: Repayment Provision In CBA That Required Repayment Of Training Costs Did Not Constitute Impermissible "Kick-Back"
November 28, 2010 5:11 pm / Leave a comment
Gordon v. City of Oakland
In this case, a former employee brought a putative class action, alleging that the Defendant violated the minimum wage provisions of Fair Labor Standards Act (FLSA), and related state laws, by requiring her to reimburse it for part of her training costs due to voluntarily leaving city's employment before completing five years of service. Holding that such repayment was not an impermissible kick-back, the lower court dismissed. The Ninth Circuit agreed and affirmed.
The Court laid out the following pertinent procedural/factual background:
"The facts here are taken from Gordon's Proposed First Amended Complaint and the attachments thereto. Since the late 1990s, the City and the collective bargaining unit for City police officers, the Oakland Police Officers' Association, have entered into successive collective bargaining agreements. These agreements provide that officers who voluntarily separate from the City's employment prior to completing five years of service must repay a pro rata share of their police academy training costs. The agreement at issue here states that the cost of the training is $8,000, and it establishes the following repayment schedule:
Length of Service % of Repayment Due
Separation prior to 1 year 100% repayment of the $8,000.
Separation after 1 year but before completing the second year 80% repayment of the $8,000.
Separation after 2 years but before completing the third year 60% repayment of the $8,000.
Separation after 3 years but before completing the fourth year 40% repayment of the $8,000.
Separation after 4 years but before completing the fifth year 20% repayment of the $8,000.
Separation after 5 years 0% repayment
Gordon was a successful applicant for the position of Police Officer Trainee. She was advised that she was required to sign the "Conditional Offer of Position as a Police Officer Trainee" ("Conditional Offer") to complete the hiring process. The Conditional Offer restated the training repayment schedule established in the collective bargaining agreement but it did not include a statement that the City would withhold an officer's paycheck in satisfaction of any repayment owed. Gordon accepted and signed the Conditional Offer and became a police officer trainee employed by the City. The City directed her to attend its police academy, and she successfully completed her training in June 2006. She then became a police officer for the City.
On January 25, 2008, before completing her second year of service, Gordon resigned. At that time, she was earning $37.8025 per hour. In her final two weeks of work, Gordon was compensated for sixty hours. Her regular hourly pay, combined with an educational incentive in the amount of $117.33, resulted in Gordon earning $2,385.48 in gross pay for her final two workweeks. Gordon received a final paycheck reflecting this amount.
On the same day as her resignation, the City's Fiscal Services Division notified Gordon that the City was entitled to recover $6,400 (eighty percent of $8,000) in training costs as set forth in the Conditional Offer Gordon signed. This notification stated that the City had withheld, in partial satisfaction of these claims, the paychecks for Gordon's accrued unused vacation ($1,295.57) and compensatory time off ($654.77). Thus, the City's total remaining demand was $4,449.66.FN2 This unpaid demand increased to $5,268.03 in March 2008 with the addition of a "collection fee."
Gordon, on behalf of herself and others similarly situated, filed this action in district court seeking damages and declaratory relief under the FLSA, 42 U.S.C. § 1983, and various California state laws. The district court granted the City's motion to dismiss Gordon's complaint for failure to state a claim and gave Gordon fourteen days within which to file a motion for leave to file an amended complaint.
Following the court's dismissal, Gordon paid the City the $5,268.03 it claimed was due and moved for leave to file her Proposed First Amended Complaint. The new complaint eliminated all but the FLSA claims and included that she paid the City $5,268.03 for "training reimbursement" and "collection costs." The district court concluded that the proposed amended complaint still did not demonstrate that Gordon was paid less than the federal minimum wage during any workweek, and it denied her leave to file her minimum wage claim in the amended complaint. The district court did, however, grant Gordon leave to amend to assert a claim for violation of the overtime wage requirements under 29 U.S.C. § 207(o). Gordon subsequently dismissed with prejudice all overtime wage claims under 29 U.S.C. § 207(o) and entered into a Stipulation for Judgment of Dismissal for the purpose of facilitating this appeal."
Holding that the repayment scheme laid out in the CBA was not a prohibited kick-back, the Court reasoned:
"The issue in this case is whether the Conditional Offer's training reimbursement agreement, which required Gordon to repay $6,400 at the time of her resignation, caused her to receive less than the federal minimum wage during her final workweek. Gordon contends that there is no legal difference between deducting a sum from an employee's check and directly demanding the employee surrender a sum after being paid. She maintains that after subtracting the costs she paid to the City for the training program, she was actually paid a negative sum for her last week of work. The district court, however, concluded that because the City issued Gordon a paycheck exceeding the minimum wage amount, the City's reimbursement demand did not violate the FLSA's minimum wage provision. We affirm.
The FLSA requires all covered employers to pay their employees at least the federal minimum hourly wage every workweek. 29 U.S.C. § 206. As a "public agency," the City is a covered employer under the FLSA and must comply with the FLSA's minimum wage requirements. 29 U.S.C. § 203(d). Additionally, employees cannot waive the protections of the FLSA, Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 707, 65 S.Ct. 895, 89 L.Ed. 1296 (1945), nor may labor organizations negotiate provisions that waive employees' statutory rights under the FLSA. Barrentine v. Arkansas-Best Freight Sys., 450 U.S. 728, 740-41, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981). Consequently, neither the Conditional Offer nor the collective bargaining agreement limit Gordon's right to receive at least minimum wage.
The United States Department of Labor has adopted regulations outlining employers' FLSA obligations. One such regulation is 29 C.F.R. § 535.31, which provides in pertinent part:
Whether in cash or other facilities, 'wages' cannot be considered to have been paid by the employer and received by the employee unless they are paid finally and unconditionally or 'free and clear.' The wage requirements of the Act will not be met where the employee 'kicks-back' directly or indirectly to the employer or to another person for the employer's benefit the whole or part of the wage delivered to the employee. This is true whether the "kick-back" is made in cash or in other than cash.
Because Gordon did not allege she was paid below the federal minimum wage for any given week, the only way Gordon has stated a cognizable claim is if her payment to the City for a portion of her training costs is a "kick-back" payment as described in section 535.31.
While this court has not previously addressed this issue, we find persuasive the Seventh Circuit's reasoning in Heder v. City of Two Rivers, Wisconsin, 295 F.3d 777 (7th Cir.2002). Heder was decided in the context of a similar reimbursement scheme for city firefighters. The City of Two Rivers funded its firefighters' mandatory paramedic training but required a firefighter to reimburse the city for the costs of training if the firefighter left the city's employment before completing three years of service. Id. The Seventh Circuit upheld the reimbursement agreement, comparing it to a loan; the cost of the training was a loan the city made to its firefighters, repayment of which was forgiven after three years. Id. at 781-82. If, however, a firefighter left before three years of service, the loan became due. Id. As long as the city paid departing firefighters at least the statutory minimum wage, it could collect the training costs as an ordinary creditor. See id. at 779.
The Seventh Circuit's analysis is applicable here. The $5,268.03 payment Gordon made to the City is repayment of a voluntarily accepted loan, not a kick-back. Instead of requiring applicants to independently obtain their police training prior to beginning employment, which the City could do by only hiring individuals already possessing a POST certification,FN5 the City elected to essentially loan police officer trainees like Gordon the cost of their police academy training. The Conditional Offer Gordon signed explained that the City would forgive her repayment obligation at the specified rate and that she would owe nothing after five years of service. Gordon, however, chose not to serve the five years necessary to secure complete forgiveness. Despite the debt Gordon owed following her resignation, the City satisfied the FLSA's requirements by paying Gordon at least minimum wage for her final week of work. The City was therefore free to seek repayment of Gordon's training debt as an ordinary creditor.
Because Gordon's repayment of her training costs is not a kick-back under section 531.35, the training reimbursement agreement does not violate the FLSA since she was paid at least minimum wage for her final workweek. Accordingly, we affirm the district court's partial denial of Gordon's Motion for Leave to File her Proposed First Amended Complaint."
S.D.N.Y.: NYLL Unpaid Gratuities and FLSA Overtime Claims Not Precluded By LMRA or CBA; No Interpretation of CBA Required To Determine Whether Defendant Violated Law
August 28, 2010 3:55 pm / Leave a comment
Alderman v. 21 Club Inc.
Plaintiffs, unionized waitstaff who worked Defendant's private banquets filed suit seeking the recover of unpaid tips, pursuant to the New York Labor Law, and unpaid overtime, pursuant to the FLSA. Plaintiffs specifically sought the portion of service charges charged by Defendant, but not paid to Plaintiffs as "tips" as required by New York law. The Defendant moved to dismiss, asserting that Plaintiffs' claims for unpaid tips were precluded by the LMRA (the CBA stated that banquet waitstaff would receive the equivalent of 18% of the gross price of any banquet they worked). The Court denied Defendant's Motion, because the claims were pendant not on the CBA, but on the NYLL.
The Court explained:
"As described earlier, plaintiffs' first claim is under NYLL § 196-d for unpaid gratuities to plaintiffs who worked banquet events at the '21' Club. Defendants contend that this claim in reality is one under Section 301 of the LMRA, 29 U.S.C. § 185, which preempts the application of state labor law. Section 301 of the LMRA provides:
Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce … may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
The Supreme Court has interpreted Section 301 "as a congressional mandate to the federal courts to fashion a body of federal common law to be used to address disputes arising out of labor contracts." Allis-Chalmers Group v. Lueck, 471 U.S. 202, 209 (1985). When a state law claim alleges a violation of a labor contract or when the resolution of a state law claim depends on an interpretation of a collective bargaining agreement, Section 301 preempts that claim. See Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 261 (1994). But if a state "prescribes rules or establishes rights and obligations that are independent of a labor contract, actions to enforce such independent rights or rules would not be preempted by section 301." Vera v. Saks & Co., 335 F.3d 109, 115 (2d Cir.2003). Indeed, the "bare fact that a collective-bargaining agreement will be consulted in the course of state-law litigation plainly does not require the claim to be extinguished." Livadas v.. Bradshaw, 512 U.S. 107, 124 (1994). In order to determine whether a state law claim is preempted because it requires interpretation of a collective bargaining agreement, the court must analyze whether the "legal character" of the state law claim is truly independent of the rights conferred under the collective bargaining agreement. Salamea v. Macy's East, Inc., 426 F.Supp.2d 149, 153-54 (S.D.N .Y.2006).
In the present case, plaintiffs bring their gratuities claim under NYLL § 196-d and not under the CBA. Both § 196-d and the CBA give employees rights in respect to gratuities, although they are worded differently in ways that have significance in this case. Specifically, the CBA guarantees gratuities in the amount of 18% of the total bill for the function. Section 196-d guarantees to the employees whatever has been charged to provide gratuities, without reference to a specific percentage. It is necessary, therefore, for the court to define exactly what plaintiffs' claim is and then to determine whether it fits under § 196-d or under the CBA or both.
The relevant portions of the complaint are paragraphs 21 and 22 in the factual allegations and paragraphs 33 and 34 stating the claim:
21. For private events, Defendants charged gratuities to the hosts of the events equal to a percentage of the cost of the events.
22. While Defendants distributed a potion of these gratuities to the service staff that worked these parties, Defendants did not distribute all of the gratuities. Thus, Defendants illegally retained substantial portions of the gratuities paid by private event hosts, instead of distributing them in their entirety to service staff.
33. Defendants received gratuities from customers for all private banquets.
34. Defendants retained portions of Plaintiffs' tips and Class members' tips.
On their face, the allegations of the complaint do not refer to 18%. However, they are not precise in excluding the possibility that in fact plaintiffs are seeking the 18% referred to in the CBA. But the court believes that the December 29, 2008 letter of union president Bill Granfield is relevant in construing the nature of the gratuities claim. This letter makes a demand that the '21' Club pay to employees "the difference between your service charge rate and the 18% gratuity rate contained in the contract." The reference to "the contract" presumably means the CBA. Thus, in late 2008, the Union was claiming that the service charges were greater than the 18% referred to in the CBA and was demanding that the entire amount be paid to the employees.
The court concludes that the complaint should be taken on its own terms and cannot properly be construed as actually referring only to the 18%.
The complaint asserts that it is made under NYLL § 196-d. That statute provides:
No employer or his agent or an officer or agent of any corporation, or any other person shall demand or accept, directly or indirectly, any part of the gratuities, received by an employee, or retain any part of a gratuity or of any charge purported to be a gratuity for an employee. This provision shall not apply to the checking of hats, coats or other apparel. Nothing in this subdivision shall be construed as affecting the allowances from the minimum wage for gratuities in the amount determined in accordance with the provisions of article nineteen of this chapter nor as affecting practices in connection with banquets and other special functions where a fixed percentage of the patron's bill is added for gratuities which are distributed to employees, nor to the sharing of tips by a waiter with a busboy or similar employee.
The first sentence of the statute prevents an employer from taking the gratuities received by an employee. The relevant part of the last sentence states that nothing in the statute affects the practice in connection with functions where a fixed percentage is added to the patron's bill for gratuities which are distributed to employees. The statute is somewhat confusing because the assurance of the employee's rights in the first sentence is followed by the latter portion of the last sentence which states that the statute is not applicable to functions where an amount is added to the patron's bill for gratuities.
Plaintiffs cite authorities that they contend give them rights under the statute. It is not the province of the court on the present motion to resolve questions which may arise as to the exact construction of the statute. It is sufficient to say that, as far as state law is concerned, plaintiffs would surely be entitled to attempt to recover under the statute. What defenses there may be under state law, and how the issues are resolved, remains to be seen. One thing is clear under § 196-d, and that is that there is no reference to 18% or any limit of 18%.
On the question of whether plaintiffs' gratuities claim should be construed as in reality coming under the CBA so that federal law applies, the language of the CBA was quoted earlier in this opinion. The CBA only guarantees 18%. Consequently, a claim for more than 18% is not properly one under the CBA. It is properly made under § 196-d.
The result is, and the court so holds, that the gratuities claim is not preempted by federal law.
The court notes the contention that the history of the Union submissions by way of grievances constitutes an admission that the gratuities claim in the present case properly falls within the ambit of the CBA. The court rejects this argument. The employees did not give up their right to assert a gratuities claim under § 196-d in the present action."
The Court also ruled that Plaintiffs were not required to submit their claims to arbitration, based on the language in the CBA.
To read the entire opinion, click here.
7th Cir.: 203(o) Does Not Preempt State Law; Notwithstanding The Fact That Time Spent Donning/Doffing Of PPE Constitutes Changing "Clothes" Under the FLSA, Such Time Is Compensable Under WI State Law And Not Waivable By CBA
August 4, 2010 9:52 am / Leave a comment
Spoerle v. Kraft Food Global, Inc.
In this case, the Plaintiff-employees brought a collective action against employer under the Fair Labor Standards Act (FLSA) and state law, contending that hourly employees at employer's plant should be paid for time spent donning and doffing safety and sanitation articles and walking to and from their work stations at the beginning and end of their shifts. The trial court granted employees' motion for summary judgment, and employer appealed. The Seventh Circuit held that the employees' claims were not preempted by FLSA and affirmed.
The Court framed the issue as "whether § 203(o ) preempts state law that lacks an equivalent exception[?]" Answering in the negative, the Court reasoned:
"The Fair Labor Standards Act has a saving clause:
No provision of this chapter … shall excuse noncompliance with any Federal or State law or municipal ordinance establishing a minimum wage higher than the minimum wage established under this chapter or a maximum work week lower than the maximum workweek established under this chapter…. No provision of this chapter shall justify any employer in reducing a wage paid by him which is in excess of the applicable minimum wage under this chapter, or justify any employer in increasing hours of employment maintained by him which are shorter than the maximum hours applicable under this chapter.
29 U.S.C. § 218(a). This means, the district court concluded, that donning and doffing time counts toward the workweek (and overtime rates) if state law so provides. Kraft Foods concedes that Wisconsin requires time spent donning and doffing safety gear to be compensated at the minimum wage or higher, and that this time counts toward the limit after which the overtime rate kicks in. See Wis. Stat. §§ 109.03, 103.02; Wis. Admin. Code § DWD 272.12(2)(e). (This makes it unnecessary to decide whether federal law would require payment for this time, in the absence of a § 203(o ) agreement. See Pirant v. United States Postal Service, 542 F.3d 202, 208-09 (7th Cir.2008) (discussing which kinds of required safety gear are "integral and indispensable" for purposes of the analysis in IBP ).) Kraft Foods contends, however, that § 203(o ) preempts Wisconsin's law. The district judge rejected that argument and entered judgment in plaintiffs' favor as a matter of Wisconsin rather than federal law, see 626 F.Supp.2d 913 (W.D.Wis.2009), a step supported by the supplemental jurisdiction of 28 U.S.C. § 1367.
Kraft Foods contends that § 203(o ) embodies a federal decision to permit a collectively bargained resolution to supersede the rules otherwise applicable to determining the number of hours worked. That's an accurate statement, as far as it goes. But "as far as it goes" means "as far as § 203(o ) itself goes." And the statute tells us exactly how far it goes. The first words of § 203(o ) are: "In determining for the purposes of sections 206 and 207 of this title the hours for which an employee is employed …". Section 206 sets the federal minimum wage per hour worked. Section 207 specifies how many hours a person may work in a given period before overtime pay commences. These are rules of federal law. States are free to set higher hourly wages or shorter periods before overtime pay comes due. That's what § 218(a) says. Nothing in § 203(o ) limits the operation of § 218(a).
As far as we can tell, this is the first time an employer's argument that § 203(o ) preempts state law has reached a court of appeals. All three district judges who have considered this argument have rejected it. In addition to the decision under review, see In re Cargill Meat Solutions Wage & Hour Litigation, 632 F.Supp.2d 368, 392-94 (M.D.Pa.2008); Chavez v. IBP, Inc., 2005 U.S. Dist. LEXIS 29714 at *112-22 (E.D.Wash. May 16, 2005). If Wisconsin had provided for a minimum hourly wage exceeding the rate in the collective bargaining agreement between Kraft Foods and Local 538, the state law would trump the CBA. And if this is so for the hourly rate, it must be equally so for the number of hours, because how much pay a worker receives depends on the number of hours multiplied by the hourly rate. It would be senseless to say that a state may control the multiplicand but not the multiplier, or the reverse, because control of either one permits the state to determine the bottom line (provided that the state's number exceeds the federal minimum; § 218(a) does not allow a state to authorize employers to pay less than the federal floor).
As Kraft Foods sees things, Wisconsin is meddling with collective bargaining, so that federal labor law preempts state law if § 203(o ) does not do the trick. Yet nothing in the Wisconsin statutes gives a state court, or other state official, any role in interpreting or enforcing a collective bargaining agreement. What Wisconsin requires is that the collective bargaining agreement be ignored, to the extent that it sets lower wages or hours than state law specifies. Cf. Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988) (state rules that disregard, rather than interpret, collective bargaining agreements are not preempted by federal labor policy). Suppose the CBA set a wage of $8 per hour, higher than the current federal minimum wage of $7.25, while Wisconsin law set a minimum wage of $8.25. (Wisconsin's actual minimum wage is $7.25, but some states, including Illinois, use $8.25.) No one would contend that the employer could pay the workers $7.25 an hour, even though that is allowed by federal law if labor and management agree (this is the same sense that excluding donning and doffing time is allowed by § 203(o )). Which rate would prevail: $8 from the CBA or $8.25 from state law? According to § 218(a), the employer must pay $8.25 an hour; state law supersedes the collective bargaining agreement. And if this is so about the wage per hour, it is equally true about the number of hours.
Nothing that labor and management put in a collective bargaining agreement exempts them from state laws of general application. If a CBA were to say: "the workers will receive the minimum wage under FLSA, and not one cent more no matter what state law provides," that would be ineffectual. So too would an agreement along the lines of: "Because our base hourly rate is more than 150% of the minimum wage, we need not pay overtime rates under state law." States can set substantive rules that determine the effective net wage, even when a CBA plays a role (as it does when a law requires overtime pay at some multiple of the base pay set in a collective bargaining agreement). Every state's overtime-compensation rule could affect collective bargaining-knowing that state law requires pay at time-and-a-half, labor and management might agree to a lower base rate per hour-but that effect would not prevent application of the state's wage-and-hour statutes.
Management and labor acting jointly (through a CBA) have no more power to override state substantive law than they have when acting individually. Imagine a CBA saying: "Our drivers can travel at 85 mph, without regard to posted speed limits, so that they can deliver our goods in fewer compensable hours of work time." That clause would be ineffectual. And a CBA reading instead that "our drivers can travel at a reasonable rate of speed, no matter what state law provides" would be equally pointless. Making a given CBA hard to interpret and apply (as the word "reasonable" would be) would not preempt state law on the theory that states must leave the interpretation of CBAs to the National Labor Relations Board and the federal judiciary; states would remain free to enforce laws that disregarded CBAs altogether. That is what Wisconsin does when determining which donning and doffing time is compensable.
The district court therefore did not err in concluding that plaintiffs are entitled to be paid for all time required by Wisconsin law, and the judgment is AFFIRMED."
M.D.Tenn.: Even If Time Spent Donning And Doffing A Uniform Is Non-Compensable Under § 203(o), It Might Still Start The Workday Under § 254(a) And The Continuous Workday Rule
February 15, 2010 10:40 am / Leave a comment
Arnold v. Schreiber Foods, Inc.
Before the court was the Motion for Summary Judgment filed by defendant Schreiber Foods, Inc. The Court granted the defendant's motion in part and denied in part. Of interest, while the Court determined certain time donning and doffing clothes was properly excluded from Plaintiffs' compensable time under § 203(o), it held that such time spent donning and doffing clothes may still constitute the first activity integral to the Plaintiffs' principle activities and start the so-called continuous workday, requiring Defendant to compensate Plaintiffs for all time spent after donning such clothes.
In discussing the applicability of § 203(0), to exclude time Plaintiffs spent "changing clothes," the Court explained that, "[t]he defendant's plant is unionized, and the United Food and Commercial Workers Union ("UFCW") is the exclusive bargaining agent for all hourly employees. In September 2004, Schreiber and the UFCW negotiated a new collective-bargaining agreement. One of the UFCW's proposals was for Schreiber to compensate employees for time spent donning and doffing uniforms at the beginning and end of the workday. After further negotiation, this proposal was withdrawn, and it was not included in the final agreement. The same thing happened when the two sides negotiated a new agreement in 2008."
The Court next addressed Plaintiff's argument that "because their workday begins when they don their uniforms and ends when they doff them, post-donning and pre-doffing 'travel and waiting time' is compensable" explaining that:
"Under the continuous workday rule, the workday begins at the commencement of the employee's "principal activities," which include activities that are an " 'integral and indispensable part of the principal activities.' " IBP, 546 U.S. at 30 (quoting Steiner, 350 U.S. at 252-53). The factors relevant to determining whether an activity is integral and indispensable are (1) whether the activity is required by the employer, (2) whether the activity is necessary to the employee's principal activities, and (3) whether the benefit of the activity inures primarily to the employer. Jordan v. IBP, Inc., 542 F.Supp.2d. 790, 808 (M.D.Tenn.2008) (citing Alvarez, 339 F.3d at 902-03;Bonilla v. Baker Concrete Constr., Inc., 487 F.3d 1340, 1344 (11th Cir.2007)). "The changing of clothes may be considered integral and indispensable to an employee's principal activities 'where the changing of clothes on the employer's premises is required by law, by rules of the employer, or by the nature of the work.' " Id. (quoting Ballaris v. Wacker Siltronic Corp., 370 F.3d 901, 910 (9th Cir.2004)).
Here, it is at least a question of fact whether the act of donning and doffing uniforms is integral and indispensable to the plaintiffs' job. It is undisputed that Schreiber requires its employees to wear clean uniforms, as mandated by Tennessee state regulations. See Tenn. Dep't of Agric. Rule 0080-3-3-.04(5) (requiring that dairy plant employees who engage in the "manufacturing, packaging, or handling dairy products" wear "[c]lean white or light-colored washable outer garments"). Employees are required to don the uniforms at Schreiber's plant, and the benefit of the sanitary uniforms to Schreiber is obvious-it allows the company to create uncontaminated food products. Numerous cases involving similar circumstances have found that donning and doffing uniforms can be an integral and indispensable activity. E . g., Jordan, 542 F.Supp.2d at 810 (finding that it was integral and indispensable for meat processing plant employees to don and doff safety and sanitary gear); Johnson v. Koch Foods, Inc., No. 2:07-CV-51, 2009 U.S. Dist. LEXIS 106058, at *28-30 (E.D.Tenn. Nov. 13, 2009) (finding a question of fact as to whether donning and doffing safety and sanitary gear was integral and indispensable for chicken processing plant employees); Gatewood v. Koch Foods of Miss., LLC, 569 F.Supp.2d 687, 696-98 (S.D.Miss.2008) (same). A reasonable jury could find that, under the continuous workday rule, the plaintiffs' workday starts when they don their uniforms and ends when they doff them.
'[D]uring a continuous workday, any walking time that occurs after the beginning of the employee's first principal activity and before the end of the employee's last principal activity is excluded from the scope of [§ 254(a) ], and as a result is covered by the FLSA .' IBP, 546 U.S. at 37. Each day, Schreiber employees spend time walking and waiting (1) after donning their uniforms but before clocking in, and (2) after clocking out but before doffing their uniforms. Disregarding § 203(o), and assuming that donning and doffing is integral and indispensable, this walking and waiting time is compensable.
This raises two questions. The first is whether § 203(o) affects the compensability of the plaintiffs' walking and waiting time. Courts are split on this issue. Some courts have held that when donning and doffing "is excluded from hours worked under § 203(o), [post-donning and pre-doffing] walking time [does] not follow or precede a principal work activity, and therefore is not compensable." Hudson v. Butterball, LLC, No. 08-5071-CV-SW-RED, 2009 U.S. Dist. LEXIS 104649, at *1 1 (W.D.Mo. Oct. 14, 2009); see also Sisk v. Sara Lee Corp., 590 F.Supp.2d 1001, 1011 (W.D.Tenn.2008) ("[O]nce an activity has been deemed a section 3(o) activity, it cannot be considered a principal activity.") This accords with the Department of Labor's current view that "activities covered by section 3(o) cannot be considered principal activities and do not start the workday." U.S. Dep't of Labor, Wage & Hour Div. Advisory Op. Ltr. No. FLSA2007-10.
A greater number of courts, however, have held that determining what constitutes a "principal activity" and determining what constitutes "changing clothes" are separate inquiries. Even if time spent donning a uniform is non-compensable under § 203(o), it still might start the workday, making subsequent activities compensable under § 254(a) and the continuous workday rule. See Sandifer, 2009 U.S. Dist. LEXIS 96715 at *40 ("The court can't conclude as a matter of law that the non-compensability … under [§ 203(o) ] excludes consideration of whether, pursuant to [§ 254(a) ], those activities are an integral and indispensable part of the employees' principal activities…."); Andrako v. United States Steel Corp., 632 F.Supp.2d 398, 412-13 (W.D.Pa.2009) ("Section 203(o) relates to the compensability of time spent donning, doffing, and washing in the collective-bargaining process. It does not render such time any more or less integral or indispensable to an employee's job."); Johnson, 2009 U.S. Dist. LEXIS 106058 at *32 ("[I]f the donning, doffing, and washing excluded by § 203(o) are determined by the trier of fact to be integral and indispensable, those activities could commence the workday."); Gatewood, 569 F.Supp.2d at 702 ("Although the statute precludes recovery for time spent washing and 'changing clothes,' it does not affect the fact that these activities could be the first 'integral and indispensable' act that triggers the start of the continuous workday rule for subsequent activities…."); Figas v. Horsehead Corp., No. 06-1344, 2008 U.S. Dist. LEXIS 87199, at *66-67 (W.D.Pa. Sept. 3, 2008) ("The Court is not convinced that § 203(o) changes the 'principal' nature of donning and doffing activities, or that 'principal' activities somehow become 'preliminary' or 'postliminary' under the Portal Act simply because they are rendered noncompensable by a collective-bargaining agreement in accordance with § 203(o).").
The court agrees that this is the best way to reconcile the application of § 203(o) with Supreme Court precedent. In IBP, the Supreme Court made it clear that the continuous workday starts upon the employee's first principal activity. 546 U.S. at 29, 37. Logically, whether an activity counts as "changing clothes" under § 203(o) does not necessarily affect whether it is a principal activity. One court found it odd that the uncompensated act of changing clothes might convert an employee's subsequent, otherwise-non-compensable activity into compensable activity. Sisk, 590 F.Supp.2d at 1011. But this oddity diminishes as the period of the subsequent activity grows longer. For example, if an employer required employees to don uniforms in a company locker room and then spend 30 minutes traveling to a work site, it would not seem "illogical," id., to require the employer to pay for the travel time. The court finds that § 203(o) does not bar the plaintiffs from receiving compensation for post-donning and pre-doffing activities.
The second question is whether the plaintiffs' walking and waiting time is noncompensable because it is de minimis. "When the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded. Split-second absurdities are not justified by the actualities of working conditions or by the policy of the Fair Labor Standards Act." Mt. Clemens Pottery, 328 U.S. at 692.
Courts look to three factors in deciding whether otherwise compensable time is de minimis: "1) the practical administrative difficulty of recording the additional time; 2) the size of the claim in the aggregate; and 3) whether 'the claimants performed the work on a regular basis.' " Brock v. City of Cincinnati, 236 F.3d 793, 804 (6th Cir.2001) (quoting ( Lindow v. United States, 738 F.2d 1057, 1062-63 (9th Cir.1984)). Although there is no rigid mathematical rule, "[m]ost courts have found daily periods of approximately 10 minutes de minimis even though otherwise compensable." Lindow, 738 F.2d at 1062;see also Von Friewalde, 339 Fed. Appx. at 454. "The burden is on the employer to show that the time consumed by the activity is de minimis." Gilmer v. Alameda-Contra Costa Transit Dist., No. C 08-05186, 2010 U.S. Dist. LEXIS 3405, at *24 (N.D.Cal. Jan. 15, 2010) (citing Rutti v. Lojack Corp., Inc., 578 F.3d 1084, 1095 n .11 (2009)).
As explained earlier, § 203(o) covers the plaintiffs' clothes-changing activities through the time that they retrieve and don their hairnets, beard nets, and earplugs. According to the plaintiffs' declarations, "[o]nce the Workers retrieve their hairnets, beard nets (if applicable), and ear plugs, the Workers clock-in." (E.g., Docket No. 42, Ex. 1 ¶ 12). The hairnet, beard net, and earplug dispensers are located approximately 40 feet from the time clocks. (Docket No. 36, Ex. 1.) Although it seems unlikely that this journey takes a significant amount of time, it is possible that employees are forced to wait for some period of time before clocking in. The defendant has not presented evidence directly addressing this matter, so it has not met its burden of showing that the walking and waiting time is de minimis. Therefore, the court cannot dismiss this aspect of the plaintiffs' claim at this stage."
Not discussed here, the Court denied Defendant's Motion to the extent they sought a finding that time Plaintiffs spent sanitizing their boots should be excluded.
5th Cir.: Notwithstanding The Language of § 203(o), Actual Bargaining Is Not Necessary In Order To Find That A "Custom or Practice" Exists Under § 203(o); Pattern Of Non-Compensation Sufficient
January 9, 2010 2:43 pm / Leave a comment
Allen v. McWane Inc.
This collective action under the Fair Labor Standards Act ("FLSA"), on behalf of hourly employees of McWane, Inc., sought payment for pre-and post-shift time spent donning and doffing protective gear. The district court granted summary judgment on the basis that at each plant there existed a custom or practice of not compensating pre- or post- shift time spent putting on and taking off protective gear. Despite the clear language of the statute, the Fifth Circuit affirmed, holding that absent any evidence that the parties had ever actually discussed or agreed during collective bargaining, that such time would not be compensable, any employer who has consistently failed to compensate employees for otherwise compensable work time may utilize the limited exception of § 203(o), thus barring employees' claims seeking payment for such time.
In reaching its conclusion, the Court dismissed Plaintiff's arguments based on the plain reading of § 203(o), stating, "Allen argues that here the facts do not establish a 'custom or practice under a bona fide collective-bargaining agreement' that would make changing time non-compensable. Allen claims that compensation for the pre- and post-shift changing time is a pre-existing right under the FLSA, subject to exclusion only if it has been affirmatively bargained away in CBA negotiations; i.e., negotiation of whether to pay for pre- and post-shift changing time must be shown before the court may conclude that there was a custom or practice as provided in § 203(o). According to Allen, there has been no acquiescence or waiver here because the union representatives did not have knowledge of the right to compensation for this pre- and post-shift changing time, nor any knowledge of or acquiescence to a policy of nonpayment for that time.
This court addressed a related issue in Bejil: whether employees had a right to compensation for changing time where the union and the employer had discussed that very question during CBA negotiations, but the CBA ultimately remained silent on the matter. 269 F.3d at 480. We concluded that such silence in the CBA, after the parties negotiated over the matter, resulted in a "custom or practice" of not compensating the employees for the changing time, and therefore § 203(o) barred claims for back wages for such time. Id. Here, unlike in Bejil, there was no discussion of whether McWane should compensate the Allen plaintiffs for such clothes changing time.
The Third and Eleventh Circuits have considered the specific question of whether § 203(o) requires the employees and employer to have discussed the issue of compensation for pre- and post-shift changing time, where the CBA is silent on the issue, in order to find that a custom or practice of nonpayment existed pursuant to a CBA. The Third and Eleventh Circuits concluded that it was not necessary for the issue to have been raised in negotiations. Anderson v. Cagle's, Inc., 488 F.3d 945, 958-59 (11th Cir.2007); Turner v. City of Philadelphia, 262 F.3d 222, 226 (3d Cir.2001).
Turner presented the following uncontested facts: (1) Philadelphia had not compensated corrections officers for uniform change time for over 30 years; (2) every CBA between Philadelphia and the officers had been silent as to compensation for change time; (3) the union president proposed at labor management meetings with Philadelphia's Labor Relations Administrator that change time be made compensable, but the union did not make this request in formal CBA negotiations; (4) the union did, however, ask for and receive a uniform maintenance allowance; and (5) the union never filed a grievance or demanded arbitration based on the non-compensability of change time. Turner, 262 F.3d at 225.
The Turner plaintiffs made an argument similar to the one articulated by Allen, that "a 'custom or practice' of non-compensability cannot come into being unless (1) the issue of compensability is specifically raised in formal collective bargaining negotiations, and then (2) dropped by the negotiators." Id. at 226. Rejecting this approach, the Third Circuit held that the plaintiffs and their union had acquiesced to the municipal government's thirty-year policy of not compensating for changing time. Id. at 227. The court explained:
We think that plaintiffs interpret the phrase "custom or practice under a bona fide collective-bargaining agreement" too narrowly, placing undue emphasis on the clause "under a bona fide collective-bargaining agreement" while virtually reading the clause "custom or practice" out of § 203(o). In essence, plaintiffs construe "custom or practice under a bona fide collective-bargaining agreement" as "custom or practice established through formal collective bargaining negotiations." To the contrary, we view the phrase as simply restating the well-established principle of labor law that a particular custom or practice can become an implied term of a labor agreement through a prolonged period of acquiescence. Id. at 226. The Turner court also rejected the argument that the plaintiffs had an antecedent right to payment under the FLSA such that they could not acquiesce to non-compensation without the issue being negotiated, noting that § 203(o) itself defines what work time is encompassed by that right to payment. Id. at 226-27.
In Anderson, the employer had not compensated the employees for time spent donning and doffing protective gear for approximately ten years. 488 F.3d at 958. Additionally, the court assumed for purposes of its decision that every CBA during the relevant time period had been silent as to compensation for changing time, and assumed that the parties had never discussed the policy. Id. at 958. The Anderson court followed Turner, also rejecting the argument that a custom or practice under § 203(o) cannot exist unless the parties negotiated about the non-compensation policy. Id. at 958-59. "Relying again on a common sense understanding of the statute's language, we believe that a policy concerning compensation … for clothes changing, written or unwritten, in force or effect at the time a CBA was executed satisfies § 203(o)'s requirement of a 'custom or practice under a bona fide' CBA." Id. "Absence of negotiations cannot in this instance equate to ignorance of the policy. Rather, it demonstrates acquiescence to it." Id. at 959.
The Eleventh Circuit noted that the issue in Anderson was not controlled by the Fifth Circuit's decision in Hoover v. Wyandotte Chemicals Corporation, 455 F.2d 387 (5th Cir.1972). In Hoover, another action to recover overtime pay under the FLSA, this court held that employees were not entitled to additional compensation for the extra eight to ten minutes of clothes changing time that they requested during collective bargaining negotiations, but which was not incorporated into the executed CBA. Id. at 388. The custom and practice of the employer for approximately fifteen years had been to pay for fifteen minutes of changing time. During the most recent CBA negotiations, pay for 23-25 minutes of time had been requested but not adopted. Hoover held that the request did not change the custom or practice, which was to pay only for fifteen minutes of changing time. Id. at 389. Although the employer had agreed to pay for changing time, where the employees raised the issue during CBA negotiations but there was no change in practice by the employer or change to the CBA on the issue, the relevant custom of non-payment for clothes changing time over fifteen minutes remained unaltered.
Allen both criticizes the reasoning of Turner and Anderson and tries to distinguish them. Allen observes that in Anderson the plaintiffs did not contend that they lacked notice of the relevant compensation policy, whereas here the employees and their union representatives were unaware of the potential for compensation under the FLSA. 488 F.3d at 959. However, neither Turner nor Anderson address the employees' awareness of the law, much less find it to be a controlling factor in their holding. Anderson merely observed that the plaintiffs were aware that the company had a policy of not paying for pre- and post-shift clothes changing time. Id. Similar facts were present in Turner. 262 F.3d at 225. Both courts concluded that silence by the employees and their union as to the non-compensability of this time when the CBAs were executed meant that a custom or practice of nonpayment was established pursuant to a CBA, and thus the time was not to be calculated as "hours worked" under § 203(o).
Allen relies heavily on the reasoning employed by Kassa v. Kerry, Inc., 487 F.Supp.2d 1063, 1071 (D.Minn.2007). In Kassa, the defendant moved for summary judgment based on § 203(o). The court voiced its agreement with Turner, and determined that § 203(o) may apply even where non-payment for changing time was never raised in negotiations. The court then identified three elements as essential to determine the existence of a "custom or practice" under § 203(o): time, knowledge, and acquiescence. Id. at 1070-71 (relying on Detroit & Toledo Shore Line R.R. Co. v. United Transp. Union, 396 U.S. 142, 154 (1969)). Kassa assigned the burden to the defendant to show that "its policy of non-compensation for clothes-changing time lasted for a sufficiently long time, with sufficient knowledge and acquiescence by [the] employees, that the policy became an implicit term-a 'custom or practice'-under the CBA." Id. at 1071. In Kassa, the record established that the non-payment by defendant had occurred for six years and the union had never complained about non-payment when executing the CBA. Id. The district court found this insufficient as a matter of law to establish a custom or practice, and denied summary judgment.
Allen also relies on the Supreme Court's statement in Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 740 (1981), that "FLSA rights cannot be abridged by contract or otherwise waived…." Barrentine addressed whether employees at a union-organized plant operating under a CBA could sue their employer for violations of the minimum wage provisions of the FLSA. The CBA in Barrentine required the employees to submit the claim to a grievance committee; when they did so, the committee rejected their claims. The Court held that the right to sue for the violation of the FLSA could not be abridged or waived. Id. at 740. There is a significant distinction between the minimum wage provision at issue in Barrentine and the application of § 203(o) in the instant case: the FLSA rights at issue in Barrentine are independent of the collective bargaining process. Id. at 745. By contrast, under § 203(o) the right to be paid for pre- or post-shift changing time may be abridged by contract-a bona fide CBA. See also Livadas v. Bradshaw, 512 U.S. 107, 131-32 (1994) (addressing question of meaningful bargaining under the National Labor Relations Act, referring to § 203(o) of the FLSA as an example of a "narrowly drawn opt-out provision," and noting employees have full protection of the minium standard "absent any agreement for something different").
We are persuaded by the reasoning of the Third and Eleventh Circuits, and join them in holding that even when negotiations never included the issue of non-compensation for changing time, a policy of non-compensation for changing time that has been in effect for a prolonged period of time, and that was in effect at the time a CBA was executed, satisfies § 203(o) 's requirement of "a custom or practice under a bona fide" CBA. See Anderson, 488 F.3d at 958-59 (policy of non-compensation had been in place for at least ten years); Turner, 262 F.3d at 226 (policy of non-compensation had been in place for thirty years). In such instances, regardless of whether the parties negotiated regarding compensation for changing time, acquiescence of the employees may be inferred. By contrast, where there have been no relevant negotiations and the facts do not demonstrate that a policy of non-compensation for changing time has been in effect for a prolonged period of time, other evidence of knowledge and acquiescence by the employees will be required. See Gatewood v. Koch Foods of Miss., 569 F.Supp.2d 687, 698-700 (S.D.Miss.2008) (holding that even in the absence of a long-standing tradition of non-compensation or negotiations for compensation of time spent changing clothes, "when employees and union representatives are conclusively aware of the facts surrounding compensation policies for changing clothes at the beginning and end of each workday, and reach an agreement under a CBA that does not compensate employees for the time, a 'practice' exists under the CBA sufficient to invoke the § 203(o) defense").
Thus, as long as there was a company policy of non-compensation for time spent changing for a prolonged period of time-allowing the court to infer that the union had knowledge of and acquiesced to the employer's policy-and a CBA existed, the parties need not have explicitly discussed such compensation when negotiating the CBA. McWane "only need prove that the parties had a 'custom or practice' of non-compensation under the agreement." Bejil, 269 F.3d at 479. It is undisputed that McWane has never compensated its employees for changing time, going as far back as 1965. After more than forty years of non-compensation, we may safely infer that McWane's employees had knowledge of and acquiesced to the policy of non-compensation. Therefore, we conclude that McWane has demonstrated a "custom" of non-compensation for changing time."
Interestingly, the Court noted that the parties had stipulated that the time spent donning and doffing personal protective equipment was synonymous with "changing clothes" and thus potentially waivable, creating the narrow issue before the Court. Inasmuch as there are recent decisions from around the country falling on both sides of this issue (i.e. some finding such time not to constitute "changing clothes") the Court's holding may have limited application going forward, because if the disputed time was not time spent "changing clothes" 203(O) would have no applicability.
4th Cir.: Because Donning and Doffing of Protective Clothing Constitutes "Changing Clothes," Compensability of Such Time is Waivable, Under § 203(o), By Collective Bargaining Agreement
January 5, 2010 11:18 am / Leave a comment
Sepulveda v. Allen Family Foods
Deciding an issue that has divided courts across the country, the 4th Circuit held that, because the donning and doffing of personal protective equipment (PPE) constitutes "changing clothes," the right to be compensated for such time may be collectively bargained away in a Collective Bargaining Agreement (CBA).
"Under the Fair Labor Standards Act, 29 U.S.C. § 201 seq.bargaining to exclude "any time spent in changing clothes. . . at the beginning or end of each workday" from compensable work time. § 203(o). In this case, we are asked to determine whether the donning and doffing of protective gear at a poultry processing plant constitutes "changing clothes" within the meaning of Section 203(o). We conclude that it does. Consequently, the employer and union here may—as they currently have—exclude donning and doffing from compensable work time."
Realizing the factually intensive nature of most, if not all so-called donning and doffing cases, the Court noted that its decision did not mean that the donning and doffing of such PPE was not compensable time, stating "[o]ur holding, of course, does not mean that employees should not be paid for time spent donning and doffing protective gear. Instead, it simply recognizes that the purpose of Section 203(o) is to leave this issue to the collectivebargaining process. Employers and unions are free to determine for themselves how much compensable time should be allocated and for what activities of "changing clothes." This sort of fact-intensive determination has classically been grist for the mill of collective bargaining, and Congress ensured that employers and unions could keep it that way by enacting Section 203(o)."
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N.D.Ill.: Idle Hours Are Compensable "Hours Worked" For Purposes Of Labor Management Relations Act (LMRA), Because Compensable Under FLSA
December 10, 2009 12:52 pm / Leave a comment
Laborers' Pension Fund v. Eagle America Corp.
Plaintiffs Laborers' Pension Fund and Laborers' Welfare Fund of the Health and Welfare Department of the Construction and General Laborers' District Council of Chicago and Vicinity, and James S. Jorgensen, Administrator (collectively "the Funds"), brought suit against Defendant Eagle America Corporation under ERISA, 29 U.S.C. § 1132(e), and the LMRA, 29 U.S.C. § 185(a). The Funds claimed that Eagle America violated ERISA and the LMRA by failing to make proper employee benefit contributions, failing to pay proper union dues, and failing to maintain a surety bond to guarantee the payment of wages and contributions for all "hours worked." The case was before the Court on Plaintiffs' Motion for Summary Judgment. Finding, in part, that Plaintiffs' members were entitled to be paid for idle time, as "hours worked" under the FLSA, the Court granted Plaintiffs' Motion for Summary Judgment.
Of interest here, the Court analyzed Plaintiffs' claims for unpaid idle hours under the framework of the FLSA, determining such hours to be compensable as "hours worked" under the FLSA, thereby finding Defendant liable for unpaid wages and benefits to Plaintiffs.
"Before determining whether there is a genuine dispute as to the accuracy of the audit reports, the Court must analyze the controversy over whether Eagle America is responsible for contributions to the Funds for every hour that a covered employee showed up to work. The controversy essentially boils down to a dispute over whether the requirement that Eagle America make contributions for "each hour worked" covers hours when employees are at the job site waiting for appliances to be delivered or loading docks and elevators to become available.
Eagle America argues that these were not "hours worked" because its employees were idle during these hours due to causes that were "unavoidable" from the Company's perspective. The Company points to the CBA provision requiring the Company to give four hours payment for time lost to employees reporting for work who are not put to work. The Company notes that the provision contains an exception for occasions when the Company cannot put employees to work for "unavoidable causes." The parties agree that the Company often has no control over whether appliances, elevators, and docks are available. Thus, the Company argues, because the CBA does not require the Company to pay the employees for these "idle hours," it need not make contributions for these hours.
The Funds argue that the provision regarding "unavoidable causes" is irrelevant. Instead, they look to federal rules interpreting the Fair Labor Standards Act (FLSA) for guidance on the issue of what constitutes an "hour worked." According to those rules, which clarify the concepts of compensable time and time worked under the FLSA, "[a]n employee who is required to remain on call on the employer's premises or so close thereto that he cannot use the time effectively for his own purposes is working while 'on call.' " 29 C.F.R. 785.17 (emphasis added). Eagle America argues that even if the Court looks to the FLSA as a guide, the question of whether waiting time is to be considered working time is a "question of fact to be resolved by appropriate findings of the trial court," Skidmore v. Swift, 323 U.S. 134, 136-37, 65 S.Ct. 161, 163, 89 L.Ed. 124 (1944), and urges the Court to deny summary judgment on that basis.
This lawsuit does not arise under the FLSA. However, in construing the terms of a contract, the Court will take the legal framework in place into account. Florida E. Coast Ry. Co. v. CSX Transp., Inc., 42 F.3d 1125, 1129 (7th Cir.1994). The Court may assume that the parties understood the law in effect at the time of the CBA's execution and interpret the term accordingly. Id. at 1129-32 (construing settlement agreement not to apply in situations where it would be illegal). Thus, the Court will assume that the parties intended the CBA to require Eagle America to compensate its employees for all hours that are compensable under the FLSA.
The Skidmore Court refused to "lay down a legal formula" as to which "waiting hours" are compensable, holding that courts must address the issue as a case-specific question of fact. 323 U.S. at 136-37, 65 S.Ct. at 162-63. While the interpretive rule cited above is more specific, it does not bind the Court. Brigham v. Eugene Water & Elec. Bd., 357 F.3d 931, 940 (9th Cir.2004) (citing U.S. v. Mead Corp., 533 U.S. 218, 232, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001)). Nonetheless, courts have frequently looked to the rules for guidance in disputes under the FLSA, id. (compiling cases), and, as the rule suggests, the question of whether an employee must remain on or near the premises while waiting is often a factor in the courts' determinations. See, e.g., Armour & Co. v. Wantock, 323 U.S. 126, 133-34, 65 S.Ct. 165, 168-69, 89 L.Ed. 118 (1944) (affirming judgment in favor of firefighters who could spend time on call playing cards and engaging in other "amusements," but who were required to remain on premises); see also Owens v. Local No. 169, Ass'n of W. Pulp & Paper Workers, 971 F.2d 347, 351-54 (9th Cir.1992) (compiling factors, distinguishing cases in which employees had to remain on, near, or were frequently called back to premises). In cases where on-premises hours were not considered "working hours," the workers were allowed to use their time on premises for long resting periods, eating, and engaging in recreational activities. See, e.g., Allen v. Atl. Richfield Co., 724 F.2d 1131, 1137 (5th Cir.1984) (reversing summary judgment to plaintiffs because they were "free to sleep, eat at no expense, watch movies, play pool or cards, exercise, read, or listen to music during their off-duty time"); Rousseau v. Teledyne Movible Offshore, Inc., 805 F.2d 1245, 1248 (5th Cir.1986) (affirming dismissal of claim by plaintiffs who were "free to sleep, eat, watch television, watch VCR movies, play pingpong or cards, read, listen to music, etc….[and] seldom or never did any physical work after their shift ended").
In this case, Eagle America has provided no facts to call into dispute whether the "idle hours" spent on the jobsite by its employees were in fact "hours worked." Instead, the Company points to the contract language regarding "unavoidable cause" and stresses that this is a question of fact. However, Eagle America cannot survive the summary judgment phase of these proceedings merely because there is a question of fact involved. The Court will deny summary judgment if there is a "genuine issue as to [a] material fact." Fed.R.Civ.P. 56(c). Eagle America is correct that in instances of uncertainty regarding whether "hours waiting" are "hours working" the Court "must take account of the arrangement plaintiffs themselves chose." Binges v. Sacred Heart St. Mary's Hospitals, Inc., 164 F.3d 1056, 1059 (7th Cir.1999). In other words, the Court will look to the CBA in cases of uncertainty. However, given Eagle America's failure to put forward any facts regarding the freedom its workers have while waiting for deliveries, loading docks, and elevators, the Court does not find uncertainty in this case.
Assuming for the moment that there is some level of uncertainty, however, and that the CBA is relevant, the Court does not stray from its decision. The Company reads the referenced CBA provision to apply to situations when employees are waiting for elevators and the like. However, the Court reads the provision differently. The provision, which appears under the heading "Reporting for Work," applies to employees "reporting for work" but "not put to work." The CBA generally requires Eagle America to pay these employees four hours' worth of pay for "lost time." Under the Company's reading, employees would receive this four hours' pay regardless of whether they were sent home immediately or were sent home after waiting on the jobsite for eight hours. Or, in the case at issue here, when the Company does not put an employee to work for an "unavoidable cause" such as a late delivery, the employee might be paid nothing for waiting eight hours. The provision makes much more sense if it applies only in situations when an employee is sent home and unable to work the hours that he or she expected to work and not in situations when the employee is required to remain on premises waiting for hours at a time or waiting for minutes between tasks for an entire day.
This reading of the provision finds support in the text of the provision itself. While the Company focuses on the fact that it need not provide any pay in instances of "other unavoidable cause," the CBA also exempts the Company from paying employees when they are not put to work because of "weather conditions, fire, [or] accident." In cases of inclement weather, however, the CBA requires the Company to pay employees for hours spent waiting for the weather to clear up. Moreover, in the provision regarding inclement weather, the CBA alternatively refers to "reporting pay" as "show up" pay. These provisions lend a great deal of support to the notion that the parties to the CBA intended for the "Reporting for Work" provisions to require four hours' pay for employees who "show up" for work but are sent home. They also support the notion that the parties intended workers to get paid for hours spent waiting. Finally, the Court finds further support in the fact that the CBA provides specific exceptions for "weather conditions, fire, [or] accident," but not for the circumstances at issue in this case. If all parties understood that employees would regularly be required to wait for elevators, loading docks, and deliveries, and they intended for those circumstances to be covered by this provision, it seems unlikely that they would not have included an explicit reference to those circumstances.
The FLSA overrides contracts, so agreements such as the CBA are only relevant in close cases. Dinges, 164 F.3d at 1059. Eagle America has not placed material facts in this case in dispute, and it is therefore not a close case. Furthermore, the Court's interpretation of the CBA favors the Funds. Thus, even making all inferences in favor of the Company, the Court can resolve this question of fact on summary judgment."
Thus, the Court granted summary judgment in favor of the Funds on the issue of liability.
Andrew R. Frisch
8151 Peters Road, Suite 4000
888-OVERTIME [683-7846]


Vesperbild signifies the Lamentation of Christ. It depicts the Virgin Mary cradling the lifeless body of Jesus and is a marked event in Christian art. However, Agostino Arrivabene 's 'Vesperbild' is a profound contemporary interpretation of this theme. His work projects transitory almost metamorphic stages between light and dark, twilight, transfiguration and rebirth.
Agostino's exhibition, 'Vesperbild' is show at The Giovanni Bonelli Gallery from May 22 – July 26 2014.


Overview: "CoPower was founded with a single mission: to unlock capital for climate solutions by empowering individuals to participate in clean energy investing, for profit and planet. Our green bonds are backed by a portfolio of senior, secured loans to distributed clean energy and energy efficiency projects that generate steady revenues from the sale of clean power or by reducing energy consumption. Bondholders earn steady fixed returns, while generating measurable carbon reductions and building more clean energy infrastructure in North America.


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Strong spring earns Diaz spot with Indians
By Jordan Bastian
GOODYEAR, Ariz. -- Yandy Diaz admitted that he was extremely nervous when he was called into Indians manager Terry Francona's office on Thursday afternoon. When the rookie emerged, he was soon greeted with celebratory hugs inside Cleveland's clubhouse.The Indians rewarded Diaz's strong spring showing with a spot on the Opening
GOODYEAR, Ariz. -- Yandy Diaz admitted that he was extremely nervous when he was called into Indians manager Terry Francona's office on Thursday afternoon. When the rookie emerged, he was soon greeted with celebratory hugs inside Cleveland's clubhouse.
The Indians rewarded Diaz's strong spring showing with a spot on the Opening Day roster as the club's third baseman. Francona also informed veteran Michael Martinez that he will break camp with the big league club as a utility man off the bench.
Diaz was at a loss for words when asked for his reaction to the news.
"I can't even tell you. I'm so happy," Diaz said through team translator Anna Bolton. "This is my first time playing in the big leagues. I think about all the sacrifices I've made over the past four years to make it here. I don't even know what to say. I just thank God I'm here."
Both Diaz and Martinez -- in camp as non-roster invitees -- will need to be added to Cleveland's 40-man roster prior to Opening Day. Third baseman Giovanny Urshela and infield prospect Erik Gonzalez were optioned to Triple-A Columbus, bringing an end to the last two spring competitions. Francona said the Indians want Gonzalez getting regular at-bats in the Minors, rather than sitting on the Major League bench.
The third-base job became available after second baseman Jason Kipnis was sidelined with a right shoulder injury earlier this spring. With Kipnis beginning the season on the 10-day disabled list, Jose Ramirez will move off third and play second base. Until Kipnis' return, Diaz will fill in at third base.
"This was a really difficult decision," said Chris Antonetti, the Indians' president of baseball operations. "That's a reflection of the work that Gio and Erik did, in addition to how Yandy and Michael played. Again, it was a very difficult decision, but we feel this puts us in a strong position to start the season."
Cleveland will need to clear one spot on the 40-man roster to add Diaz, Martinez and outfielder Austin Jackson. One spot was cleared when Rule 5 draftee Hoby Milner was returned to the Phillies, and another will open when righty Cody Anderson (Tommy John surgery on his right elbow) is placed on the 60-day DL. Lefty Tim Cooney (left forearm) is also a 60-day DL candidate.
Diaz, who is rated as the Tribe's No. 10 prospect by MLBPipeline.com, was considered for a promotion to the Majors down the stretch last season, but Cleveland opted instead to trade for veteran outfielder Coco Crisp. Diaz was focusing on a transition to the outfield at the time and that continued into the early portion of Spring Training.
Diaz is not at the same defensive level as Urshela, but he worked diligently behind the scenes in a move back to third base. Offensively, Diaz stood out in a big way. In 18 Cactus League games this spring, he hit .429 (18-for-42) with two home runs, four doubles, 13 RBIs and more walks (eight) than strikeouts (five).
"The way Yandy played, it's kind of hard to ignore that," Francona said. "We tested him a lot and there's an opportunity, and it looks like he deserves it."
Jordan Bastian has covered the Indians for MLB.com since 2011, and previously covered the Blue Jays from 2006-10. Read his blog, Major League Bastian, follow him on Twitter @MLBastian and listen to his podcast.

redpajama_set_name: RedPajamaCommonCrawl


This is a sweet little in-home family photography session. I love shooting in home newborn sessions. The energy is always calm and quite, even amidst the chaos of two older siblings.
You don't need to have the perfect clean home, or the perfect outfits. These sessions are all about your family navigating the early days with your newest love.
This is a sweet little in home session with a new family of five, with three little girls. Shot when on a mentoring session with Janine at White-salt.


(Friday, November 16, 2012, St. Petersburg, FL); Give or share the gift of music this season with friends and family. Whether in our acoustically perfect mainstage Hough Hall, or in our intimate, candlelit Side Door Cabaret, you will find music and artists to suit every taste and budget this holiday. To enjoy advance notices about the best shows and seats in town year 'round, you may want to join The Palladium's all-new "Friends With Benefits" membership program. Drop by, call the Box Office (727) 822-3590, or visit My Palladium for more information and tickets for show or membership information. Visit PalladiumPaul'sBlog and subscribe to receive emails updates on newly-booked performances. Group, student, senior and St. Petersburg College family discounts are available for many shows, as are Palladium Gift certificates, perfect for holiday giving. Volunteer opportunities abound at the Palladium – contact jones.nancy@spcollege.edu.
Harry O'Donoghue is a storyteller, songwriter and ambassador of contemporary and traditional Irish folk music. Carroll Brown is also a much-loved artists on the Celtic music circuit. Together, their Celtic Christmas show is a mix of popular carols, along with some original compositions and Irish holiday songs. Show is back by popular demand. 7:30 p.m.
Be part of a live studio audience and participate in authentic radio theatre, complete with sound effects! This benefit show for the Radio Theatre Project will put you in the holiday spirit with music, gifts and the magic of radio. Plus a special episode of The Continuing Adventures of Noel Berlin, Cabaret Detective written just for the occasion. 7 p.m.
The high-energy, all-star 60s band returns! 8 p.m.
Fri., 11/30, 7 p.m., Sat., 12/1, 2 p.m., 7 p.m., Sun., 12/2, 3 p.m.
Students of the MIRA (Music Industry/Recording Arts) program at St. Petersburg College present a showcase of music from four outstanding ensembles: Hip-Hop, R&B, Rock and Laptop & Electronic Arts performing electronic and electro-acoustic music. 7:30 p.m.
Vernon Taranto, SPC Music Director conducting. 7:30 p.m.
All new, all-star! This year's band features national jazz artists – Ken Peplowski (clarinet and saxophone) and Chuck Redd (vibes) – plus the legendary John Lamb (bass), local favorite Stephen Bucholtz (drums), and a special guest vocalist. Nate and the band will be doing a portion of Duke Ellington's Jazz Nutcracker along with holiday favorites. 8 p.m.
Holiday highlights from Bach's Christmas Oratorio, Tchaikovsky's Nutcracker, arias, a sneak preview of next season, and more! Mark Sforzini, Artistic Director.
Tue., 12/18 and 19, 7:30 p.m.
Damon Fowler has joined forces with guitarist/singer JP Soars and Memphis-based piano man/singer Victor Wainwright to form Southern Hospitality. Get ready for an evening of Delta blues, Memphis soul, Boogie-Woogie and Funky grooves.
Fri. & Sat., 1/11 & 12, 8 p.m.
The Calidore Quartet is emerging as one of the most notable young chamber music ensembles in America. The quartet features violinists Jeffrey Myers and Ryan Meehan, violist Jeremy Berry, and cellist Estelle Choi.
Nicki Parrott is a world renowned double bassist and jazz vocalist who performs regularly in New York City as part of the legendary Les Paul Trio. Nicki was Paul's bassist and vocalist for over 10 years. Parrot is joined by Rossano Sportiello (piano) and Eddie Metz Jr. (drums).
Legendary guitar blues masters Roy Book Binder and Paul Geremia come to the Palladium for one very special night. 8 p.m.


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Home darjeeling tea Voodoo farming methodology of Darjeeling tea goes beyond taste
Voodoo farming methodology of Darjeeling tea goes beyond taste
Although many fans of Darjeeling tea attribute its unique flavour to voodoo farming, a new book says the farming methodology goes beyond taste and aims at striking an ecological harmony.
American travel writer Jeff Koehler who has come out with his new book "Darjeeling: A History of the World's Greatest Tea" says it is really hard to gauge how voodoo or biodynamic farming actually affects the muscatel flavour of one of the world's most prized tea.
"Taste might almost be secondary. Biodynamics is a holistic approach to farming that seeks more than just flavor.
It is a way of creating an ecological harmony on the garden, a tight web that interlinks the soil, plants, animals, and those who live on the estates," Koehler said.
However he said there is no question that those who farm biodynamically treat their bushes with particular care and that is often reflected in the taste of the teas.
The author wonders whether biodynamic farming actually makes the taste better, as many believe it to be the secret behind the unmatchable taste.
"Does planting according to the moon's orbit and the position of the constellations make a difference in that final judgement of a tea when it's sipped from the cup? Does spraying the leaves with ground silica crystals that have been buried in cow horns give deeper muscatel flavours? A more nuanced body?," he writes in the book published by Bloomsbury.
Makaibari tea garden's manager and one-time owner Rajah Banerjee is a follower of Austrian philosopher Rudolf Steiner who had devised this alternative form of farming.(sns)
Read latest post filed under darjeeling tea


The phosphoric acid (H3PO4) transported by the Ece came from the OCP (Office Chérifien des Phosphates) one of the world leaders in crude phosphate production, exporting crude phosphate, phosphoric acid and solid fertilisers to around 40 different countries. The phosphoric acid onboard the Ece was an acid with a low concentration of heavy metals.
Phosphoric acid is used in the manufacture of fertiliser (superphosphates), the protection of metals, the pharmaceutical industry, water treatment, cleaning, paint and certain food products.
Phosphoric acid is one of the most bulk transported basic chemicals. Phosphoric acid holds ninth position on the American coastguards' list of the most spilled chemicals.
Cedre edited an intervention and response guide about the risk of phosphoric acid spills in their series of chemical response guides, began to be published in 2004. This document provides information on the evolution of the product in the case of an accidental spill in water. It includes accidental spill scenarios in the sea, in rivers and in lakes, with recommendations about intervention (personal safety) and pollution response.
In this incident, no major spill of fuel or cargo was observed. However iridescences of hydrocarbon surfaced and exploration of the wreck may confirm the hyphothesis that phosphoric acid may seep out via cracks in the hull, piping, or tank vents. The leakage could reach 25 m³/hour. There were therefore no major pollution risks, but a risk of progressive leakage remained. The product was, as far as we know, colourless or nearly colourless, with a refractive index close to that of water. Leaks were therefore difficult to detect by video observation.
Phosphoric acid is, like all acids, a corrosive liquid. It is non volatile and does not produce vapour. It has a higher density than that of seawater (density of 1.53 at 20 °C for a solution of ~50% P2O5 ou ~75% H3PO4) and therefore sinks when spilled. It is totally soluble in water and does not build up in the food chain.
The main risk for humans is essential linked to contact with the skin or mucus membranes, causing irritation or even burns in the case of prolonged contact with a concentrated solution. The same risk applies to marine animals. Phosphoric acid leaking from the wreck would mix with water and acidify the immediate surroundings. Once the leaking stopped, the neutralising power from the seawater would quickly raise the pH back to its original value (around 8) in the affected zone. The environmental impact would be too temporary and localised to be quantifiable.
The GESAMP, a group of experts selected by OMI (the International Maritime Organisation) to study the scientific aspects of pollution at sea, gave the pollution 0, on a scale of 0 to 5, for persistance in the environment, 1, on a scale of 0 to 6, for acute aquatic toxicity and 3, on a scale of 0 to 4, for toxicity to aquatic mammals due to contact ot ingestion.
The 1973 MARPOL convention divided transported products into 4 categories (A, B, C, D), according to the risks they involved for marine resources, human health and the accreditation of the sites. Category D is the classification for the least dangerous products. This includes harmful liquids which, when spilled in water, present a "discernible risk for marine resources and human health or may slightly harm the site or other legitimate uses of the sea and therefore lead to certain precautionary measures concerning the conditions of use".
There was therefore no immediate major pollution risk from the phosphoric acid. However the question which came to light, as with all wrecks, was the question of whether to remove the potential pollutants (acid and fuel) trapped in the wreck.
To help decide what observation operations should be carried out and what action should be taken, a series of dilution tests in Cedre's laboratory were carried out using coloured phosphoric acid and water acidity measurements. The first results showed that the acid spread out at the bottom, before diluting in a matter of a few minutes without any currents. When strong currents were simulated, the acid diluted rapidly as soon as it touched the water. It progressively decomposed into hydrogen ions (H+), responsible for the decrease in pH, and into phosphate ions (PO4--).
Cedre was asked about the possible fertilising effect of the phosphate ions, which could lead to an anarchical development of green algae in the event of a major spill. This question is IFREMER's domain. However in this case the pollution did not involve a major spill and the availability of phosphate ions in February is not a key factor in the developmant of green algae.
Main accidental chemical spills listed by the American Coastguards (1992-1996).
1. Introduction of a closed jar of phosphoric acid coloured using rhodamine into a crystallizing dish of seawater.
2. Slow dissolution of the acid after opening the jar without shaking.
3. The acid, heavier than seawater, sinking and spreading at the bottom.
4. Agitating the acid, which dissolves rapidly.


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No to Blockchain Credentials of COVID-19 Test Results for Entry to Public Spaces
By Adam Schwartz
An ill-conceived California bill endorses a blockchain-based system that would turn COVID-19 test results into permanent records that could be used to grant access to public places.
EFF and ACLU oppose California A.B. 2004. The newest version of this bill would create a pilot program for using "verifiable health credentials" to report COVID-19 and other medical test results. The bill defines such a credential as "a portable electronic patient record," for which authenticity "can be independently verified cryptographically." The bill's fact sheet explains that these credentials "use blockchain technology" to create "a provable health record" for purpose of "travel, returning to employment, immunization status, and so on." Three rounds of official bill analysis provide the same explanation.
This bill is a blockchain solution in search of a problem, and COVID-19 is a problem that will not be so easily solved.
That's a huge privacy concern. No one should have to unlock their phone and expose their health information in order to gain entry to their office, school, or neighborhood market.
Medical test results are a poor fit for public ledgers. First, per the recommendations of California's Blockchain Working Group, the "most critical question" when considering adopting blockchain technology is whether "a permanent record [is] warranted." Here, it clearly is not. A person's COVID-19 status may change from day to day, and tests are often hard to come by. This system could unfairly punish those who can't afford to be tested nearly constantly. Second, while verifiable credentials might make sense for reporting a binary fact (such as whether or not a person is 21), medical tests come with strong caveats and significant margins of error. For example, some COVID-19 diagnostic tests have a false negative rate as high as 20 or 30%. The science behind testing for COVID-19 immunity is even less settled. According to the CDC, "we do not know how much protection [COVID-19] antibodies may provide or how long this protection may last." This nuance is lost when a test result is turned into a credential. In short, this bill is a blockchain solution in search of a problem, and COVID-19 is a problem that will not be so easily solved.
Worse, the bill would take us a troubling step towards a national identification system. It would habituate people to present a digital token as a condition of entry to physical spaces, and habituate gatekeepers to demand such digital tokens. Such systems could be expanded to track every occasion that a person presented their digital token, or to prove other pieces of personal information like age, pregnancy, or HIV status. Further, such systems would create new information security problems when people hand their unlocked phones to gatekeepers, and create new social equity problems given the one-in-five people who don't have a smartphone.
EFF and ACLU also opposed an earlier version of this bill. You can read here our lengthier explanation of this bill's many problems. We urge the California legislature to reject A.B. 2004. It will do nothing to address the COVID-19 crisis, and much to invade our digital rights.
COVID-19 and Digital Rights
Deeplinks Blog by Karen Gullo, Veridiana Alimonti | January 27, 2023
Brazil's Telecom Operators Made Strides and Had Shortcomings in Internet Lab's New Report on User Privacy Practices
Brazil's biggest internet connection providers made moderate advances in protecting customer data and being transparent about their privacy practices, but fell short on meeting certain requirements for upholding users' rights under Brazil's data protection law, according to InternetLab's 2022 Quem Defende Seus Dados? (Who Defends Your Data?) report. In...
Deeplinks Blog by Joe Mullin | December 27, 2022
Users Worldwide Said "Stop Scanning Us": 2022 in Review
The online conversations that bring us closer together can help build a world that's more free, fair, and creative. But talking to each other only works when the people talking have their human rights respected, including their right to speak privately. The best tool to defend that right in...
Deeplinks Blog by Veridiana Alimonti | December 25, 2022
Hacking Governments and Government Hacking in Latin America: 2022 in Review
In 2022, cyber-attacks on government databases and systems broke into headlines in several Latin American countries. These attacks have exposed government systems' vulnerabilities—including sometimes basic ones, like failing to keep software updated with critical patches—and shown how attacks can affect government data, services, and infrastructure. On the other hand, they...
Deeplinks Blog by Bill Budington, Cooper Quintin | December 24, 2022
EFF's Threat Lab Sharpens Its Knives: 2022 in Review
EFF's Threat Lab is dedicated to deep-dive investigations that examine technology-enforced power imbalances in society. In 2022 we've sharpened our knives and honed our skills in an effort to bring down the stalkerware industry, taken aim at invasive surveillance by police, raised red flags around the security and privacy...
Deeplinks Blog by Ross Schulman | December 22, 2022
A Roller Coaster for Decentralization: 2022 in Review
This year has been a roller coaster for the movement to decentralize the services and tools that we rely on every day. Decentralizing internet services may help remedy concerns ranging from traditional big business competition to online privacy.In order to devote closer attention to these issues which impact user autonomy...
Deeplinks Blog by Adam Schwartz, Corynne McSherry | December 21, 2022
California Courts Must Protect Data Privacy
If our legal rights to data privacy aren't enforceable, they are just empty promises. One of the best ways to enforce them is to let people sue the companies that violate their data privacy. Unfortunately, the U.S. Supreme Court has been chipping away at private enforcement by rewriting...
Deeplinks Blog by Gennie Gebhart | December 9, 2022
A Promising New GDPR Ruling Against Targeted Ads
Targeted advertising's days may be numbered. The Wall Street Journal and Reuters report that the European Data Protection Board has ruled that Meta cannot continue targeting ads based on user's online activity without affirmative, opt-in consent. This ruling is based on the European Union's General Data Protection Regulation...


Presentation by Niall Munro at EDINA on 06/07/2016.
Presentation on how to deliver native HTML5 multimedia with flash fallback as well as how to prepare & protect your assets with some background information along the way.
At the end of the slides I'll take you through ffmpeg examples that have been updated to include adaptive streaming examples.
Presentation slides can be found in html5-multimediastreaming.pptx.