You Be the Judge—Top Staffing Cases From 2016

You Be the Judge—Top Staffing Cases From 2016 PANEL FACILITATOR Stephen C. Dwyer, Esq., general counsel, American Staffing Association PANELISTS Eric H. Rumbaugh, Esq., partner, Michael Best & Friedrich LLP Donald W. Schroeder, Esq., partner, Foley & Lardner LLP

How This Time Will Work Three to four cases will be presented, time permitting. Each side will be either plaintiff’s attorney or defendant’s attorney. Each party has approximately 10 minutes to present the facts. Audience acts as panel of judges and can ask questions of the parties. Stephen Dwyer acts as Chief Judge. The audience will vote at the end of the proceedings, and the Chief Judge will provide the verdict. Cases are adapted from actual cases. Attorneys will discuss the verdict and legal theory applied in the real-life version, and answer questions.

Wells v. Prime The players Prime Temporary Staffing: temporary staffing firm located in California Judy Wells and similarly situated individuals: candidates for temporary positions

Wells v. Prime The key facts Candidates for temporary positions were required to complete the following activities once they advanced to a sufficiently late stage of the application process: - Watch two short videos, review a handbook, and complete government-required forms Candidates signed an agreement acknowledging that they would be employees of the staffing firm only when they were placed on an assignment

Wells v. Prime What happened? Wells filed a class action lawsuit against Prime for failure to compensate candidates for time spent applying to temporary jobs, purportedly in violation of California’s wage and hour law. Prime filed for summary judgment.

Wells v. Prime The issue and law The issue: The law: - Was Prime required to compensate Wells and other candidates for time spent in the application process (including watching training videos, reviewing the handbook, and completing government-required forms)? The law: - California’s wage and hour laws apply only when an employer–employee relationship exists. California courts use a “totality of the circumstances” test to determine whether an employment relationship exists.

The Verdict

DOL v. Hard Hat Corp. The players U.S. Department of Labor Hard Hat Corp.: a skilled labor leasing company that “leased” skilled workers to construction contractors

DOL v. Hard Hat Corp. The key facts To receive a job offer from Hard Hat, candidates were required to complete a 10-hour general construction safety course. Candidates were informed of this requirement during their employment interview. - Candidates who had not completed the course at the time they interviewed with the company were informed that they would be offered immediate employment if they registered for the course within 60 days and completed it within a reasonable time.

DOL v. Hard Hat Corp. What happened? DOL investigated Hard Hat’s practices and determined that it violated the FLSA by - Not compensating employees for time spent in the safety course - Failing to pay overtime when workers’ course attendance time and regular hours exceeded 40 in a given week DOL sued Hard Hat for purported violations of the FLSA, and the trial court found that Hard Hat’s practices violated the FLSA Hard Hat appealed this ruling to the Sixth Circuit

DOL v. Hard Hat Corp. The issue and law The issue: The law: - Was time spent by employees in the safety course compensable? The law: - Under the FLSA’s interpretive regulations, time spent in training programs is not compensable if (a) attendance is outside the employees’ regular working hours; (b) attendance is voluntary; (c) the training is not directly related to the employee’s job; and (d) the employee does not perform any productive work during such attendance. - The only contested issue was whether attendance was voluntary.

The Verdict

McGwire v. Steel City Maintenance The players Steel City: provides maintenance and contracting services to mines throughout the U.S. McGwire and similarly situated employees: Steel City’s current and former underground mine workers, each of whom was assigned to work at the same mine

McGwire v. Steel City Maintenance The key facts Steel City required its miners to attend a 15-minute safety meeting before entering the mine to begin each shift. Miners were not compensated for any time spent attending these meetings.

McGwire v. Steel City Maintenance What happened? McGwire filed a putative collective action lawsuit under the FLSA, alleging that Steel City violated the FLSA by failing to compensate miners for time spent in the preshift safety meetings. Steel City moved for summary judgment on this issue.

McGwire v. Steel City Maintenance The issue and law The issue: - Was time spent in the required safety meetings compensable under the FLSA? The law: - Under the Portal-to-Portal Act, as recently interpreted by the U.S. Supreme Court in Integrity Staffing Solutions Inc. v. Busk, time spent on preliminary or postliminary activities is compensable if they are “principal activities” or “integral and indispensable” to the employees’ principal activities.

The Verdict

Anthony Benjamin v. Jersey Inc. The players Benjamin: an employee of Staffing Resources (“SR”) that provided temporary on-site staffing to Jersey Inc. Jersey Inc.: a company to which SR provided on-site temporary employees

Anthony Benjamin v. Jersey Inc. The key facts Benjamin was an employee of SR. SR assigned Benjamin to provide on-site services to Jersey. Benjamin injured himself during the course of providing services to Jersey. Jersey was listed as an alternate employer on the Alternate Employer Endorsement portion of SR’s workers’ compensation insurance policy.

Anthony Benjamin v. Jersey Inc. What happened? Benjamin sued Jersey, arguing that the statutory workers’ compensation bar does not apply because Jersey is not his direct employer.

Anthony Benjamin v. Jersey Inc. The issue and law The issue: - Can Benjamin bring suit against Jersey for his injuries? The law: - Alternate employers are immune from suit under the act by virtue of the Alternate Employer Endorsement.

The Verdict

Questions?