Lots of Work for New Labor Secretary

Perez Faces Daunting Obstacles

Labor Secretary Tom Perez pledged this week to aggressively defend workers rights in a speech to the AFL-CIO but it may be a bit early to break out the balloons and confetti.

For one thing, Perez, who was appointed by President Barack Obama in July, has little power to overcome some of the daunting obstacles facing both the labor movement and American workers generally.

Research earlier this year documented what many casual observers already knew – the U.S. Supreme Court is, in fact,  the most anti-employee rights court in modern U.S. history.

In the past two years, the Court has issued decisions that make it far more difficult for plaintiffs to prevail in employment discrimination lawsuits, retaliation lawsuits and class action lawsuits. See One-Two Punch by Anti-Worker Court and Wal-Mart Doges Bullet.

Congress has done little or nothing to repair these devastating blows to worker rights.

Congress has not even addressed the Court’s absurd 2009 decision in Gross v. FBL Financial Services  to treat plaintiffs in age discrimination lawsuits less favorably than plaintiffs in race or sex discrimination lawsuits.

Finally, Congress’ so-called budget compromise – the sequester  – threatens to devastate the U.S. Department of Labor, which faces a potential budget cut of up to 26 percent in 2014.

Still …  Let the wind be at his back as Perez defends collective-bargaining rights, aggressively enforces wage laws and takes steps to improve workplace safety.

He also plans to crack down on employers who unlawfully misclassify workers as contractors instead of as employees and extend wage protections—such as overtime pay—to groups like home health-care workers who now have limited protections. Mr. Perez also said the DOL also will focus on job-training skills, calling he agency the “Department of Opportunity.”

And there’s no time like the present!

Union membership is down from a high of 20 percent in 1983 to 11.3 percent in 2012 (of which only 6.6 percent are private sector workers).


Amazon’s Free Lunch

AmazonA recent federal court decision offers a glimpse into the miserly working conditions of hourly workers at two national distribution centers for Amazon.com in Nevada.

Two workers, Jesse Busk and Laurie Castro, filed a class action lawsuit in 2010 arguing that they should be paid for the 25 minutes it takes them to depart the Amazon distribution warehouse at the end of their shift. They said workers must stand in line for a security clearance that requires them to remove their wallets,  keys and belts and walk through a metal detector.  

Busk and Castro are former employees of Integrity Staffing Solutions, Inc., which provides warehouse space and staffing to Amazon.com in Fernley and Las Vegas.  

The workers also argued they should be paid for their 30-minute lunch break because they had to pass through a security clearance when they left the factory floor and it took ten minutes to get to and from the cafeteria.  Also, they said, supervisors frequently “reminded” them during the lunch period to “finish their meal period quickly so that they would clock back in on time.”  

An appeals court panel ruled on April 12 that the Fair Labor Standard Act (FLSA) requires workers to be compensated for the time spent undergoing the security clearance at the end of their shift but does not require compensation for time deducted from their 30-minute lunch break.

In Busk, et al v. Integrity Staffing Solution ,a three-judge panel for  U.S. Court of Appeals for the Ninth Circuit said the time the spent on the security clearance at the end of the day was necessary to employees’ primary work as warehouse employees filling orders placed through Amazon.com. Also, the panel wrote,  “Integrity allegedly requires the screening to prevent employee theft, a concern that stems from the nature of the employees’ work (specifically, their access to merchandise).”

 However, the appeals court panel ruled the workers’ lunch-break time was not compensable under the FLSA because it was not integral and indispensable to the workers’ principal activity of filling orders placed through Amazon.com.  

The panel contended that any time spent by workers going through the security clearance during the lunch break was “de minimus” or too inconsequential to require compensation.   The panel noted that employees claimed they were required to pass through the security check only on their way to the cafeteria and “not on the return trip. The relatively minimal time expended on the clearance in this context differs from the 25-minute delay alleged for employees passing through security at day’s end.”

Finally, the panel writes, “That supervisors may have ‘interrupted’ Busk and Castro …  does not make their lunch periods compensable absent any claim that they performed a work duty.”

While throwing out the federal FLSA claim, the appellate panel did say the workers’ could raise a state law claim they asserted in the appeal with respect to their shortened lunch period.  The plaintiffs argued that workers have greater protection under a Nevada law that requires that an employer provide a half-hour meal break if it employs a worker for a continuous eight-hour period.

The panel reversed a lower court’s pre-trial dismissal of the case and remanded the case back to the district court for further consideration.   

The panel noted that Busk and Castro did not claim the walk to and from the cafeteria deprived them of adequate time to eat lunch.  “We express no view on whether such a claim is cognizable under FLSA, nor on whether the plaintiffs could amend their complaint to state a valid claim under FLSA. We leave that to the district court’s consideration on remand,” the panel states