Joint Versus Separate Employers Under Federal Overtime Law

Recent news reports indicate that local fire departments are under investigation by the United States Department of Labor, possibly for overtime violations related to the joint employer rule under overtime law.  Under federal law, someone can be an employee of separate and distinct employers; each of those employers can count the employee’s hours separately for purposes of determining whether the 40-hours per week threshold has been exceeded.  So you can work your regular full-time day job, and then pick up some extra hours at night working part-time somewhere else for a different employer, without your full-time employer having to count those part-time hours as overtime work.  That’s assuming the two are separate and distinct employers.

A problem occurs when those two employers aren’t separate and distinct, but are instead considered “joint employers.”  In that instance, all the hours worked for the joint employers are combined to determine whether the employee has exceeded forty total working hours in a given week for the joint employers.  If so, then the joint employers owe the joint employee overtime.

This may be what’s happening with the local fire departments.  Municipalities sometimes enter into agreements with each other to share resources, such as fire and rescue.  If that makes the fire departments “joint employers,” then all hours worked for both municipalities are combined for overtime purposes, rather than dividing working time between the two.  It seems that full-time firefighters for one city are working part-time, on-call hours for a different city under one of those sharing agreements.  The question is whether those working hours have to be combined, thus exposing both cities to potential overtime responsibility.

Determining whether two employers are a joint employer can be difficult.  The Department of Labor considers all of the facts in a particular case.  If the facts establish that two or more employers are acting entirely independently of each other and are completely disassociated with respect to the employment of a particular employee, they’ll be considered separate and distinct employers and the employee’s working hours will not be combined.  But if the facts establish that employment by one employer is not completely disassociated from employment by the other employer, then there may be joint employment and all of the employee’s working hours must be combined for overtime purposes.

The courts have devised an “economic realities” test to determine whether two employers are separate and distinct or instead joint.  Courts look at numerous factors in deciding whether joint employment exists, including whether the alleged joint employer had the power to hire and fire the employees, supervised and controlled employee work schedules or conditions of employment, determined the rate and method of payment, and maintained employment records.  The economic realities test is a fluid concept; different courts apply different standards and some standards apply to certain situations but not others.  But the above factors are the main ones.

Overtime cases require legal analysis of federal statutes, U.S. Department of Labor regulations, and court decisions.  I can help you with any employment law or labor law questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.


Service Animals In Public Places — When Must They Be Accommodated?

In an earlier post I wrote about the rules for service animals on airplanes.  But what about service animals in public or commercial places, like restaurants and stores?  Under what circumstances must a business allow service animals inside to avoid a business practices claim?

This issue is governed by the Americans With Disabilities Act (ADA).  Businesses must follow rules that the United States Department of Justice issues about ADA compliance.  The DOJ has responsibility for implementing the provisions of the ADA.  Generally, businesses must permit service animals to accompany people with disabilities in all areas where members of the public are allowed to go.

The starting question is — What is a service animal?  The DOJ now only recognizes dogs and miniature horses as service animals.  Usually, a service animal is a dog that is individually trained to do work or perform tasks for people with disabilitiesService dogs are working animals, not pets.  The work or task a dog has been trained to provide must be directly related to the person’s disability.  Dogs whose sole function is to provide comfort or emotional support do not qualify as service animals under the ADA.

The requirements for service animals in public or commercial establishments have been broadly written to allow flexibility for all the various situations that may arise with service animals.  A one-size-fits-all approach would not work and would be impossible to apply to different types of establishments and different types of disabilities.  The only real constant is the fact that, under federal law, most service animals will be dogs.

The ADA requires state and local governments, businesses, and nonprofit organizations that serve the public generally to allow service animals to accompany people with disabilities in all areas of the facility where the public is normally allowed to go.  A service animal must be harnessed, leashed, or tethered, unless these devices interfere with the service animal’s work or the individual’s disability prevents using these devices.  In that case, the individual must maintain control of the animal through voice, signal, or other effective controls.

A person with a disability cannot be asked to remove his service animal from the premises unless: (1) the dog is out of control and the handler does not take effective action to control it or (2) the dog is not housebroken. When there is a legitimate reason to ask that a service animal be removed, staff must offer the person with the disability the opportunity to obtain goods or services without the animal’s presence.  Establishments that sell or prepare food must allow service animals in public areas even if state or local health codes prohibit animals on the premises.  People with disabilities who use service animals cannot be isolated from other patrons, treated less favorably than other patrons, or charged fees that are not charged to other patrons without animals. In addition, if a business requires a deposit or fee to be paid by patrons with pets, it must waive the charge for service animals.

When it is not obvious what service an animal provides, only limited inquiries are allowed. Staff may ask two questions: (1) is the dog a service animal required because of a disability, and (2) what work or task has the dog been trained to perform. Staff cannot ask about the person’s disability, require medical documentation, require a special identification card or training documentation for the dog, or ask that the dog demonstrate its ability to perform the work or task.  Allergies and fear of dogs are not valid reasons for denying access or refusing service to people using service animals. When a person who is allergic to dog dander and a person who uses a service animal must spend time in the same room or facility, for example, in a school classroom or at a homeless shelter, they both should be accommodated by assigning them, if possible, to different locations within the room or different rooms in the facility.

Service Animals On Commercial Air Flights

A recent incident on a U.S. Airways flight involving a disabled veteran and his service dog has brought attention to the issue of service animals on  commercial flights.  The veteran was ejected from the flight because he refused to put his service dog on the floor in front of him.  Instead, he insisted that the dog be allowed to sit on an empty seat next to him.  This is a rare publicized episode of a business practices area of disability discrimination law (service animals on commercial flights) that has received scant attention from the courts.

A few starting points.  First, this is not a issue under the Americans With Disabilities Act (ADA).  Rather, this situation is covered by the federal Air Carrier Access Act (ACAA), which is interpreted by the U.S. Department of Transportation.  Second, although a moot point here because the passenger’s service animal was a dog, beginning March 15, 2011 the U.S. Department of Justice issued new rules under the analogous ADA that restrict the definition of “service animal” to dogs and miniature horses.  If the DOT follows suit in revising the ACAA’s rules, eventually only dogs and miniature horses will be allowed on planes as service animals, assuming there’s even a way to get a miniature horse on an airplane and keep it somewhere in the cabin.

So let’s focus on a common type of service animal, dogs.   The DOT’s rules currently state that a service animal is (i) an animal individually trained and which performs functions to assist a person with a disability; (ii) an animal that has been shown to have the innate ability to assist a person with a disability, e.g., a seizure alert animal; or (iii) an emotional support animal.  Airlines must permit dogs and other service animals used by passengers with a disability to accompany the passengers on their flights.  In addition, such passengers must be allowed to have their service animal accompany them to their assigned seat and remain there as long as the animal does not obstruct the aisle or other areas that must remain unobstructed for safety reasons.  Moreover, disabled passengers must be able to keep their service animals with them unless the animal poses a direct threat to the health or safety of others or presents a significant threat of disruption to the airline service in the cabin.

There are numerous decisions and considerations that are implicated by service animals on an aircraft.  Too many to address in a single post.  The main questions are (1) Is the passenger with the animal disabled?  (2) Is the animal a service animal or a pet?  (3) Can the service animal be transported in the aircraft’s cabin?

You might wonder why this is even an issue since most airlines allow dogs to travel with passengers in the aircraft cabin.  It has to do with the special considerations given to passengers with service dogs.  DOT rules require that the dog fly free, that the disabled passenger receive special seating consideration to accommodate the dog, and that the airline waive some requirements regarding when a dog can’t be transported in the passenger cabin (for example, size or weight restrictions).  Unfortunately, some people who aren’t disabled or who don’t have a true service animal lie in an effort to gain one or more of those special considerations to which they normally wouldn’t be entitled.

So who was right in the dispute between U.S. Airways and the disabled veteran regarding placement of his service dog?  Probably U.S. Airways.  To my knowledge, no federal court has ever issued a decision on whether a disabled passenger must be allowed to keep their service animal on an adjacent unoccupied seat.  But the DOT’s policy guidance concerning service animals in air transportation suggests that airlines can insist that service animals be placed in front of, not on a seat next to, a disabled passenger.  The DOT’s policy guidance specifically references placing service animals on the floor in  front of the passenger.  It also notes that airlines are not required to furnish more than one seat per ticket in order to accommodate a service animal, which implies that if a disabled passenger wants the service animal on the adjacent seat and the airline allows that, the airline can ask the disabled passenger to pay for the second seat.

Please feel free to contact me if you have any questions about service animals under the Americans With Disabilities Act or the Air Carrier Access Act.

The Iowa Court Of Appeals Is Smarter Than A Jury And Other Lessons From Smith v. Iowa State

On Wednesday the Iowa Court of Appeals issued its decision in  Smith v. Iowa State and State of Iowa.  Smith is arguably the first actual statutory whistleblower case that has gone to trial in Iowa.   The case was brought under Iowa Code 70A.28.  That’s a special law that provides whistleblower protection for public employees, like an ISU employee.

Dennis Smith sued ISU and the state after he was fired.  He claimed he was fired in retaliation for blowing the whistle about mismanagement and financial issues by other ISU employees and officials.  The jury agreed with Mr. Smith and he was awarded a substantial wrongful termination verdict against ISU and the state.  They then appealed the verdict.

The Smith case is noteworthy for several reasons.  First, whistleblower claims are rare, and successful ones are even more rare.  Not all “whistling” is protected under the public employee whistleblower statute.  Rather, protection from whistleblowing only arises if “the employee reasonably believes the information evidences a violation of law or rule, mismanagement, a gross abuse of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”

Second, the Iowa Court of Appeals substituted its judgment for the jury’s.  That’s also an extremely rare event.  Normally, when a jury speaks trial judges and appellate judges bend over backwards to uphold the jury’s verdict.  That’s why appeals from adverse jury verdicts fail over 90% of the time.  This is especially surprising in a wrongful termination case like Smith given that for decades Iowa’s appellate courts have been drilling into our heads that the reason for a person’s termination (i.e., “causation”) is generally a jury question.  So it seems odd that in Smith the jury rules on an issue (causation) that is generally for the jury but is then overturned by a three-judge appellate panel.  

Third, the Smith decision provides an important lesson about causation in wrongful termination cases.  Lawyers for employees in wrongful termination cases have to play a game of “connect-the-dots.”  Unless the actions complained of (the retaliation) are connected to the protected activity (whistleblowing in the Smith case), the employee loses.  It’s not enough that bad things are happening to an employee at the same time the employee is engaging in protected conduct.  There needs to be proof of cause-and-effect.  In Smith the Iowa Court of Appeals determined that he offered insufficient proof that his firing and the other retaliatory action against him was connected to his whistleblowing, so he lost.  

Compensability Of Training Time Under The Fair Labor Standards Act

A common overtime pay issue is whether time spent training counts as “working time” that must be compensated at at least 1.5 times the employee’s regular pay rate.  Like many “working time” questions under federal overtime law, the answer is “maybe” and depends upon the facts and circumstances of each situation.  This is a well-settled area of federal overtime law.

Training time is generally compensable.   Attendance at lectures, meetings, training programs, and similar activities need not be counted as working time if the following four criteria are met: (a) Attendance is outside of the employee’s regular working hours; (b) attendance is in fact voluntary; (c) the course, lecture, or meeting is not directly related to the employee’s job; and (d) the employee does not perform any productive work during such attendance.

Federal law assumes that an employee’s time spent in attending lectures, meetings, or training programs must be counted as time worked unless each of those four criteria are met.  Criteria (a) and (d) are self-explanatory and don’t usually form the basis for a working time dispute.  But criteria (b) and (c) are often a subject of dispute between employers and employees.  So how does federal law interpret “voluntary attendance” and “training directly related to an employee’s job?”

Attendance at training is not voluntary if it is required by the employer.  It is not voluntary if the employee is given to understand or led to believe that the employee’s present working conditions or the continuance of employment would be adversely affected by nonattendance.  But a plaintiff seeking to show that it is “required” by his employer to attend training need not show that the employer has a rule terminating those who do not attend training.

Training is directly related to an employee’s job if it is designed to make the employee handle the job more effectively as distinguished from training the employee for another job, or for a new or additional skill.   When a training course is instituted for the bona fide purpose of preparing for advancement through upgrading the employee to a higher skill, and is not intended to make the employee more efficient in the present job, the training is not considered directly related to the employee’s job even though the course incidentally improves the employee’s skill in doing the regular work.  Training is not directly related to an employee’s job if it develops skills that are either beyond the requirements of the employee’s specific job or so basic and transferrable that the skills would be useful to the employee in any job and beyond.

Overtime cases require legal analysis of federal statutes, U.S. Department of Labor regulations, and court decisions.  I can help you with any employment law or labor law questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.

Legal Liability For Abuse Of Process

Invariably, when I represent someone or a company that gets sued, early questions from my client include “how can they just sue me?”, “don’t they have to have proof?,” and “can I get my attorney fees after we win the defense?”  Let me discuss the attorney fee question.  It’s extremely rare, absent a contract or statute that provides for attorney fees, for a successful party to recover attorney fees from the losing party.  Usually, upon successfully defending a case the only way you can recover your attorney fees is if the lawsuit against you had absolutely no basis in law or fact or was brought for an improper purpose.  One such claim for attorney fees is called “abuse of process.”

Abuse of process is the use of legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it was not designed.  The improper purpose is ordinarily an attempt to secure from another some collateral advantage not properly includable in the process itself and is a form of extortion in which a lawfully used process is perverted to an unlawful use.  An abuse of process can occur even though there is probable cause to bring the action and the original action terminates in favor of the plaintiff.  At the same time, the mere failure of a legal claim, without more, furnish proof of some attempt to gain a collateral advantage by pursuit of the claim.  Any type of legal claim, including business or contract law cases, motor vehicle accidents, motorcycle crashes, dog bite cases, private nuisance actions, employment law matters, construction defect claims, personal injury or wrongful death claims, or products liability claims, can be improper and thus expose the party bringing the action to a later abuse of process claim.

To prove a claim of abuse of process, a plaintiff must show (1) use of the legal process, (2) in an improper or unauthorized manner, and (3) that damages were sustained as a result of the abuse.   With respect to the second element of the cause of action for abuse of process, a plaintiff must prove that the defendant used the legal process primarily for an impermissible or illegal motive.  Id. 

A very restrictive view is taken of the “impermissible or illegal motive element.”  Proof of an improper motive by the person filing the lawsuit for even a malicious purpose does not satisfy this element.  This is so to protect the right to ready access to the courts.  An ulterior motive does not alone satisfy the requirement for an action in abuse of process; a definite act or threat outside the process is required.  Consequently, this is a difficult element to establish.

All of this is true as long as the act that is alleged to be improper is in fact proper in the regular prosecution of the proceeding.  A defendant is not liable if it has done no more than carry the process to its authorized conclusion, even with bad intentions.  There is no action for abuse of process when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant.  For abuse of process to occur there must be use of the process for an immediate purpose other than that for which it was designed and intended.  The usual case of abuse of process is one of some form of extortion, using the process to put pressure upon the other to compel him to pay a different debt or to take some other action or refrain from it.

Any act that is proper in the regular prosecution of a proceeding cannot be relied upon as a basis for an abuse of process claim.  Rather, to show abuse of process, a plaintiff must show defendants took some specific action in connection with their use of process which can be characterized as unlawful or irregular.  In other words, plaintiff must show defendants committed some act in the use of process that was not proper in the regular prosecution of the proceeding.  Proof of an improper motive by the person filing a lawsuit, even a malicious purpose, does not satisfy that element.

Abuse of process will not lie for a civil action that inconveniences a defendant, or for one filed in expectation of settlement (a “nuisance” suit).  Wilson, 464 N.W.2d at 267.  Settlement is included in the goals of proper process, even if the suit is frivolous.  Id.  Additionally, there is no abuse of process when the action is filed to intimidate and embarrass a defendant knowing there is no entitlement to recover the full amount of damages sought.  Id.


When Is “Travel Time” Compensable Under Federal Overtime Law?

A frequent question in overtime cases is whether an employee’s “travel time” counts as “working time” for purposes of determining how many hours in a given week an employee has worked.  Travel time is sometimes compensable, but maybe not to the extent that some believe it is.  Travel time issues can be broken into three common categories.

First, the time spent “commuting,” or driving from home to the worksite and back again, is almost never compensable.  A 1996 federal law rendered it almost impossible to argue that an employee should be paid for basic commuting time.  Now, if the employee’s actually working for the employer while commuting (for example, on a cell phone or as a passenger in the vehicle, or maybe even driving a company work vehicle) that may change things and make the commuting time compensable.  But forget about trying to bill your employer for the time you spend just fighting traffic back and forth on I-235.  You don’t ever get paid for that.

Second, time spent by an employee in travel as part of the employee’s principal activity, such as travel from job site to job site during the workday, must be counted as hours worked.  If an employee’s required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the work place is part of the day’s work, and must be counted as hours worked regardless of contract, custom, or practice.

A frequent example of this is people in an occupation with lots of home or offsite office visits (service and maintenance calls, painting, landscaping, on-site computer or technology work, deliveries, etc.)  These types of employees may start their day at a central location (say, the home office of an HVAC company).  The employee may switch to a company van or truck and perhaps pick up tools or receive initial job assignments.  Then the employee hits the road and moves from one house or business to the other throughout the day.  All of that drive time, including the time from the home office to the first job assignment and the time from the last job assignment back to the office is compensable working time.

A third common area of travel time allegations concerns travel away from an employee’s home community.  Travel that keeps an employee away from home overnight is travel away from home.  Normally, only an employee’s actual travel time is counted as extra working time on overnight trips, and only if the employee’s traveling during normal working hours (including Saturday and Sunday, even if the employee normally doesn’t work weekends, as long as the weekend travel time occurs during the time period that the employee would usually be working on a weekday).

Overtime cases require legal analysis of federal statutes, U.S. Department of Labor regulations, and court decisions.  I can help you with any employment law or labor law questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.