On Sunday, November 4, 2018, at 2:00 a.m., daylight saving time will end. This World War I–era practice of turning back the clock one hour in the fall became a federal law in the United States when President Lyndon Johnson signed the Uniform Time Act in 1966. The jury is still out on whether “falling back” is beneficial. Claims that it helps to conserve energy are dubious. Most people probably don’t get an extra hour of sleep that night. And, the time change doesn’t actually increase the number of hours of sunlight per day. However, it does present a good opportunity for employers to examine their timekeeping practices with regard to nonexempt employees.
Employers currently face a patchwork of state and local “fair workweek” laws that are difficult to navigate. While federal lawmakers have recently stepped into the fray with their own proposals, seeking to establish more consistent nationwide protections, these proposals are unlikely to become law anytime soon. In the meantime, employers should stay apprised of the varying legal protections in order to ensure compliance.
Affirming a district court order dismissing a putative class action, the Ninth Circuit Court of Appeals has held that Taco Bell’s policy of requiring employees to eat employer-discounted meals in the restaurant does not convert the meal period into “on duty” time such that the meal period becomes compensable under California law. Rodriguez v. Taco Bell Corporation, 2018 U.S. App. LEXIS 19825 (9th Cir. July 18, 2018).
Yesterday, the Department of Labor (DOL) under the Trump administration issued its first wage-hour opinion letters. Two of these opinion letters may be of general interest to employers and concern issues of (1) when an employee’s travel time must be compensated as hours worked under the Fair Labor Standards Act (FLSA), and (2) when break time taken by employees for medical reasons (protected by the FMLA) must be compensated under the FLSA.
Executive Summary: The Wage and Hour Division of the Department of Labor (DOL) issued two opinion letters today, April 12, 2018. One opinion addressed when employers must pay employees for travel time away from their homes and the second dealt with compensability of rest breaks covered by the Family and Medical Leave Act (FMLA). Essentially, the DOL stated that employers are not required to pay for travel time where an employee has no regular working hours if the employer uses one of the permissible methods for identifying the employee’s normal working hours in determining whether travel time is compensable. In another opinion, the DOL addressed the issue of FMLA-protected employees who need fifteen-minute breaks every hour. The DOL concluded that such large, frequent break times were non-compensable under both the FLSA and the FMLA because the breaks predominantly benefitted the employee. It noted, however, that these FMLA-protected employees must be compensated for break time provided to all employees, such as two fifteen-minute breaks per day.
Dear Littler: What Does Our Company Need To Do Before We Begin Using Biometric Timeclocks?
Dear Littler: We are going to replace the punch-card timeclocks in our U.S. facilities with timeclocks that allow employees to “clock in” each day using their fingerprint. I’ve read about a flood of recently filed class action litigation against companies that collected biometric information and understand that many of these cases have been filed against employers that use biometric timeclocks. Can we go ahead and roll out the timeclocks? Or is there something more that we need to do?
Concluding that the unstructured time spent by the plaintiffs between arriving at the oil refinery and the beginning of their shifts was not “integral and indispensable” to their duties erecting scaffolds at the refinery, the Fifth Circuit held that this time was not compensable under the FLSA. Bridges v. Empire Scaffold, LLC, 2017 U.S. App. LEXIS 22520 (5th Cir. Nov. 9, 2017).
In a decision rendered on November 9, 2017, the United States Court of Appeals for the Fifth Circuit affirmed a district court’s ruling that an employer was not liable under the Fair Labor Standards Act (“FLSA”) for failing to compensate its employees for pre-shift wait time.
We have recently focused upon the growing number of federal court decisions under the federal Fair Labor Standards Act that have given legal weight to carefully-crafted, well-maintained employer policies requiring employees to report all of their worktime. Several such courts have relied upon the principle that workers can recover FLSA-required wages for alleged off-the-clock work only if the employer had actual or constructive knowledge of the work.
As Hurricane Harvey continues to wreak havoc on Houston, Texas, and surrounding areas, undoubtedly, many businesses have been damaged or destroyed, while others have closed temporarily for safety and security reasons. These businesses may remain closed, or operate with limited hours, for days, weeks, or possibly months. When such closures occur as a result of nature’s forces, what are an employer’s obligations to continue paying its employees?
The City of Chicago lacked either actual or constructive knowledge that members of the Chicago Police Department were performing after-hours work on their smartphones, the Seventh Circuit Court of Appeals has ruled, affirming a trial court’s earlier ruling that the City was not liable for this work under the Fair Labor Standards Act. Allen v. City of Chicago, 2017 U.S. App. LEXIS 14230 (7th Cir. Aug. 3, 2017). The Seventh Circuit has jurisdiction over Illinois, Indiana, and Wisconsin.
Q. Our company would like to enter a team in a local 5K charity race to do some good for the community and provide some positive PR for the company. Do we have to pay employees for time spent in this activity?
What Activities Do You "Pay For"?
ABC Corporation sometimes conducts in-house, during-the-workday, performance-improvement training for its employees. Its Policy Manual includes a sentence saying, "The Company pays for the time employees spend in work-related training."
Inclement Weather FAQs: Who Gets Pay for a Snow Day?
As winter progresses, employers may find themselves monitoring the weather and wondering how to handle numerous operational headaches. Should a worksite close? If so: when, and for how long? Who can work from home, and who must be paid for what time? The kids may be hoping for a snow day, but employers know that winter weather creates a host of complications, including dangerous commutes and school closings, as well as delivery and service delays.
We have written previously about how important the "workweek" concept is in complying with the federal Fair Labor Standards Act's minimum-wage and overtime requirements.
Time clock rounding is a longstanding employer practice whereby employers round employee starting and stopping times to the nearest five minutes, or to the nearest one-tenth or quarter of an hour. Is the practice legal? For over 50 years, a federal regulation has authorized the practice, but until recently, no federal appellate court had endorsed the practice. In May of 2016, the Ninth Circuit Court of Appeals determined that an employer’s time clock rounding procedures complied with federal law in Corbin v. Time Warner Entertainment-Advance/Newhouse Partnership, 821 F.3d 1069 (9th Cir. 2016).
Much like a mom doesn't have to parcel out her kids' ice cream into servings that are exactly equal, an employer doesn't have to ensure that its policy of rounding employees' time stamps evens out perfectly, a federal appeals court has ruled.
Back in December, we wrote about a case involving the Chicago Police Department, in which officers alleged that they were owed additional overtime for time spent responding to calls and messages on their Blackberry devices, but which they failed to report in accordance with Police Department procedures. The court ruled for the City, holding that while the officers may have worked hours for which they weren't paid, the City was not liable because it did not have actual or constructive knowledge of the uncompensated work. It was a clear win for the City and for employers in general. But before anyone gets carried away, they should read a subsequent decision from another judge in the Northern District of Illinois that illustrates the limits of the idea that employers are not on the hook for work they don't know about.
Another federal appellate court, this time the Fifth Circuit U.S. Court of Appeals (with jurisdiction over Mississippi, Louisiana, and Texas) has rejected an employee's claim to have been entitled to federal Fair Labor Standards Act overtime compensation for unreported hours worked over 40 in a workweek. Readers will recall our 2012 post discussing a decision from the Tenth Circuit saying that, under the right circumstances, an employee's failure to report all hours worked can be fatal to such an "off the clock" claim.
If a tree falls in the forest but there is no one around to hear, does it make a sound? If a non-exempt worker answers an e-mail message after hours on her Blackberry but fails to put in for overtime, has she performed compensable work? While I'm not aware of any firm legal authority on the first question, a recent ruling by the U.S. District Court for the Northern District of Illinois offers a detailed and instructive analysis of the second.
Q. We keep track of work hours for non-exempt employees using an electronic timekeeping system. For our exempt employees, we really have no records of how many hours they are working each day or week. Are we required to? Even if it's not required, should we?
Joining similar decisions applying the Supreme Court’s interpretation of the Portal-to-Portal Act in Integrity Staffing Solutions, Inc. v. Busk, Senior District Judge Terrence F. McVerry of the Western District of Pennsylvania recently held that time spent attending allegedly mandatory pre-shift safety meetings was not compensable under the FLSA because those safety meetings were neither “principal activities” nor “integral and indispensable” to the mining employees’ principal activities. Bonds v. GMS Mine Repair & Maint., Inc., 2015 U.S. Dist. LEXIS 127769 (W.D. Pa. Sept. 23, 2015).
Applying the Supreme Court’s unanimous decision in Integrity Staffing Solutions, Inc. v. Busk, the United States Court of Appeals for the Ninth Circuit recently ruled that firefighters are not entitled to compensation under the FLSA for time spent moving certain necessary gear to and from temporary work assignments at fire stations other than their “home” stations. Balestrieri v. Menlo Park Fire Prot. Dist., 2015 U.S. App. LEXIS 15785 (9th Cir. Sept. 4, 2015).
The best defense for employers confronted with claims of “off-the-clock”, (i.e., unrecorded) work under the FLSA are accurate contemporaneous time records created by employees based on clearly communicated time keeping practices. The effectiveness of such records was recently demonstrated in Roberts v. Advocate Health Care, 2015 U.S. Dist. LEXIS 103631 (N.D. Ill. Aug. 7, 2015).
Last month, Georgia became the latest state to pass legislation governing the payment of wages via “payroll cards.” Gov. Nathan Deal signed the new law on May 5, 2015. Prior to the passing of this bill, the payment of wages via payroll cards in Georgia was neither explicitly lawful nor unlawful. Any open questions about that issue have now been put to rest by the new legislation.
Although most employers are aware that an employee’s time spent working is generally compensable, the question of what actually constitutes compensable “working time” under the Fair Labor Standards Act (FLSA) is an area fraught with uncertainty and the subject of substantial litigation. Indeed, in December 2014, in the case of Integrity Staffing Solutions, Inc. v. Busk, the U.S. Supreme Court concluded that employees’ time spent waiting to undergo and undergoing security screenings was not compensable working time. If the amount of litigation surrounding this issue is any indication, determining whether employee activity connected to employment is compensable is an area where mistakes are easily and commonly made by employers.
Last summer, we highlighted an example of how good recordkeeping practices can result in a favorable decision. In the Kaiser Foundation Health Plan case, the employer successfully defended an “unauthorized overtime” claim where an employee worked off the clock against Kaiser’s policies and without its knowledge. A recent Eleventh Circuit decision demonstrates the limits of relying solely on policies as a defense in these types of cases.
This past spring (here and here), I discussed rounding time clock punches (usually automatically with a time clock system) at the beginning and end of a shift. To recap briefly, rounding is the practice of adjusting time clock punch times within specific bounds. For example, if your employees punch in for work at 7:57, 8:01, and 8:02, your rounding rules may treat all of those punches as occurring at 8:00 a.m. for payroll purposes.
Employers should be relieved to know that they are not required to pay employees for security check time. In a unanimous opinion issued Tuesday, the U.S. Supreme Court held that workers are not entitled to be paid for time spent waiting for and undergoing post-shift anti-theft screenings under the Fair Labor Standards Act (FLSA) as amended by the Portal to Portal Act.
Executive Summary: On December 9, 2014, the United States Supreme Court issued a unanimous decision favorable to employers significantly limiting the types of preliminary and postliminary activities that are compensable under the Fair Labor Standards Act (FLSA). In Integrity Staffing Solutions, Inc. v. Busk, the Court held that the time spent by warehouse workers waiting to undergo and undergoing security screenings before leaving for the day is not compensable.
On December 9, 2014, in a 9-0 decision, the United States Supreme Court held that employees’ time spent waiting to undergo and undergoing security screenings is not compensable time under the Fair Labor Standards Act (“FLSA”). Integrity Staffing Solutions, Inc. v. Busk, No. 13-433, 2014 WL 6885951 (2014).
Today, the U.S. Supreme Court unanimously held that employees are not entitled to compensation for time spent waiting for and participating in mandatory security screenings at the end of their shifts. The decision reached by the Supreme Court is a victory for the increasing number of employers nationwide who screen employees to prevent theft. In addition, the Court provided much-needed guidance in an area of wage and hour law that has historically been the subject of litigation: when does the compensable workday begin and end? Integrity Staffing v. Busk.
On Tuesday, December 9, 2014, the Supreme Court of the United States ruled that the time workers spend waiting to undergo and undergoing security screenings is not compensable under the Fair Labor Standards Act (FLSA). According to Justice Thomas, writing for a unanimous Court, the security screenings at issue were not the principal activities the employees were employed to perform and were not “integral and indispensable” to those activities. Thus, the screenings were “noncompensable postliminary activities.” In arriving at this conclusion, the Court provided some much-needed clarification on the “integral and indispensable” test, holding “that an activity is integral and indispensable to the principal activities that an employee is employed to perform—and thus compensable under the FLSA—if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.” Integrity Staffing Solutions, Inc. v. Busk, Supreme Court of the United States, No. 13–433 (December 9, 2014).
The U.S. Supreme Court ruled today that the time non-exempt employees spent in connection with an end-of-workday security screening before leaving the premises did not count as worktime under the federal Fair Labor Standards Act. Instead, it said, the time so spent was non-compensable "postliminary" activity under the federal Portal-to-Portal Act.
In October, we profiled Integrity Staffing Solutions, Inc. v. Busk, a case asking whether time spent in security screenings is compensable under the Fair Labor Standards Act (FLSA). Warehouse workers sued Integrity Staffing under the FLSA for uncompensated time they were required to spend in lengthy security screenings (lasting up to 25 minutes) at the end of their shifts during their assignments to work in Amazon warehouses. At the time, we suggested that it would be “hard to envision a result different” from last term’s Sandifer v. U.S. Steel case. This prediction came true, but from a unanimous Supreme Court, rather than a sharply divided one. The Court held that the employees at Integrity Staffing Solutions facilities in Nevada could not claim compensation for the time spent going through security screenings aimed at protecting against theft because these activities were not integral and indispensable to their principal duties.
With the German victory in the 2014 World Cup now in the books and baseball finishing up its All Star break (Go Tigers—Cabrera with a 2-run HR, Scherzer with a W!), I wanted to turn my attention this week to the latest push by the White House to encourage change in the private sector workplace, specifically alternative or flexible work schedules.
When is a Commute Not a Commute? In a Company Car (Well, Maybe)!
In my last post, I outlined the “normal” commuting case after Congress passed the Employee Commuting Flexibility Act (ECFA). The ECFA clarified the applicability of the Portal-to-Portal Act to the payment of wages to employees who use employer-provided vehicles. Clarification was necessary because of two conflicting opinion letters on the topic issued by the DOL in 1994 and 1995, respectively. As I mentioned earlier this week, the ECFA made commuting in a company car non-compensable only if the use of the employer’s vehicle was (1) “for travel that is within the normal commuting area for the employer's business or establishment;” and (2) “subject to an agreement on the part of the employer and the employee or representative of such employee.” 29 U.S.C. § 254(a).
If only “Heigh-Ho” from Disney’s Snow White had been written sometime in 1938, rather than 1937, maybe my FLSA-influenced version would have had a chance.
In my last two posts (here and here), I’ve discussed rounding at the beginning and end of a shift, but what about rounding for meal breaks?
In my last post, I discussed how the FLSA approaches the “rounding” of time. In short, rounding is simply the practice of adjusting time clock punch times within specific bounds. For example, if your employees punch in for work at 7:57, 8:01, and 8:02, your rounding rules may treat all of those punches as occurring at 8:00 a.m. for payroll purposes. Here are a few pointers that I mentioned would help you avoid some of the risks associated with rounding your employees’ time entries.
Donning/Doffing Personal Protective Items: What About Mealtime?
On Monday, March 3, 2014, the Supreme Court of the United States agreed to decide whether a company was required to pay overtime compensation to its workers for the time they spent passing through a security clearance at the end of each shift. In a case on appeal from the Ninth Circuit Court of Appeals, the workers claimed that their employer violated the federal Fair Labor Standards Act (FLSA) and state labor laws by failing to pay them for the time they spent in security screenings that the company used to prevent theft.
The Supreme Court has decided an important wage-and-hour case for employers with unionized workforces. In Sandifer v. U.S. Steel Corp, a collective-bargaining agreement provided that time spent changing clothes at the beginning and end of each work day was noncompensable. Members of the collective-bargaining unit sought a ruling that the “donning” and “doffing” of certain protective gear did not qualify as “changing clothes” and thus required wage payments for the time spent in such activities.
On January 27, 2014, the U.S. Supreme Court held that the time spent by employees donning and doffing (putting on and taking off) certain protective gear is not compensable under Section 203(o) of the Fair Labor Standards Act (FLSA). This ruling will significantly impact the ability of employees to seek compensation for the donning and doffing of certain items in the unionized setting. Additionally, the Court made comments about the de minimis doctrine which could well impact employers in the nonunionized environment. Sandifer v. United States Steel Corp.
On January 27, in a very limited ruling, the Supreme Court of the United States held that an employer was not required to pay union employees for the time it takes them to put on and take off protective gear when their collective bargaining agreement did not provide for compensation for that time. After analyzing whether the workers’ protective gear qualifies as “clothes,” the Court held that, under the union contract between the parties, the time that the employees spent donning and doffing their protective gear was not compensable under section 203(o) of the Fair Labor Standards Act (FLSA). The decision, which was unanimous (except that Justice Sotomayor did not join in footnote 7), affirms the Seventh Circuit Court of Appeals’ 2012 ruling and reinforces employers’ ability to negotiate the compensability of such activities through a collective bargaining agreement. For nonunion employers, this ruling does not change the donning and doffing rules under the FLSA. Sandifer v. United States Steel Corp., No. 12-417, Supreme Court of the United States (January 27, 2014).
Sitting down to dinner but still have a long to-do list from the office? Hear your work e-mails pinging as you watch the game? Not a problem that you can’t handle with your smartphone or tablet. Whatever your take on this 24/7 connectivity, it is undeniable that the proliferation of mobile devices has made working away from the office easier and perhaps expected by employers (and clients). While such a policy may result in an increase in productivity, it can also create a legal risk for employers, namely, unexpected claims for overtime pay.
Q. A salaried, exempt employee who recently returned from a week of unpaid FMLA leave claims that he is entitled to be paid his full salary for entire week because he responded to a number of work-related e-mails and telephone calls while he was out. Do we have to pay?
Can A Paid Break Become Unpaid?
Acme Corporation's longstanding policy is to give non-exempt employees two 10-minute rest breaks each workday. It treats these breaks as paid worktime. Management recently realized that, over the years, most of the employees have gradually come to be spending 15 to 20 minutes or even a little longer on each break. Acme sent out a memo reminding everyone that the breaks are limited to 10 minutes, but it had no effect. Could Acme start considering the over-10-minute extensions to be unpaid time?
Regular readers may have noticed a decline in the frequency of our updates around the end of the year. That's because, in addition to the usual holiday and year-end craziness, my wife and I welcomed a new baby on the day after Christmas. As I get back into the swing of work and blogging, I thought this might be a perfect time to review the federal requirements regarding break time for nursing mothers.
The best answer to last week's Quick Quiz is, "No", it is not likely that Alan's time between calls would be found to be worktime under the federal Fair Labor Standards Act.
A recent Time magazine item by Dan Schawbel of Millennial Branding discusses what he sees as a growing trend to abandon the traditional on-premises, 9-to-5 workday in favor of permitting employees to "work odd hours, telecommute and otherwise tweak the usual 9 to 5 grind." Schawbel says that Generation Y employees (those born between 1982 and 1993) are spearheading this because they prioritize workplace flexibility so highly. He warns that employers who fail to offer the option to telecommute, to work atypical hours, and to use technology to facilitate alternative work patterns run the risk of turning away a group of prospective workers projected to comprise 75% of the global workforce by 2025.
On December 14, 2011, the U.S. Court of Appeals for the Seventh Circuit held in Kellar v. Summit Seating Inc., ____ F.3d ____ (7th Cir. 2011), that a former employee who claimed she worked 15 to 45 minutes every day without pay before the start of her scheduled shift failed to make out a claim for back pay under the Fair Labor Standards Act (FLSA) and Indiana Wage Payment Statute. In reaching this decision, the court found that there was no evidence that her employer knew or had reason to know she was performing this work.
On Sunday, November 6 at 2:00 a.m., daylight saving time will end and in most states clocks will be set back one hour. As it does every year, this change presents a challenge for employers whose non-exempt employees are working during that time.
Last week, the U.S. Department of Labor announced a settlement with Hilton Reservations Worldwide, LLC, in which the company agreed to pay $715,507 in minimum wages and overtime pay to 2,645 current and former customer service employees in Texas, Florida, Illinois and Pennsylvania. The DOL determined after an audit that the company failed to pay workers for pre-shift activities such as booting up their computers, launching necessary programs, and reading work-related e-mails.
A smart phone is now as much a piece of your office life as a desk, laptop or employee handbook. Anyone can use their BlackBerry or iPhone to stay current on news and events, update social media status and check their email from any location with a signal.
The answer to our September 23 Quick Quiz is, "None of it".
Ellen is a non-exempt employee who works in Bigtown for The Acme Corporation. She is assigned to hand-out brochures at TAC's booth at a tradeshow at a hotel in Salestown on Monday. She will stay in the same hotel where the show will be held. Her instructions are that she has to be at the booth location beginning at 7 a.m. on Monday, when she will help set up the booth.
Overstaying Rest Breaks: Paid Time, Or Not?
Our company provides remote access to e-mail for all employees, and some of our hourly employees carry iPhones and Blackberries with access to their work e-mail. Most non-exempt employees only work during regular business hours, but some will occasionally check and respond to e-mail after hours or on weekends. Do we need to pay employees for this time? If so, how do we track it?
The question of whether to pay employees for putting on protective gear has plagued employers for years. While the federal courts are divided over this issue, at least five Appellate Courts â€“ the Fourth, Sixth, Seventh, Eleventh and now the Tenth Circuits â€“ have held that personal protective equipment is included within the meaning of â€œclothesâ€ under Section 203(o) of the FLSA, and thus not compensable.
How Is Pay Figured When The Workweek Changes?
Our last post raised questions about how to calculate a non-exempt employee's pay under the federal Fair Labor Standards Act for the timeframe during which the employer adopts a different workweek.
The Department of Labor has entered the digital age with a splash, and has announced the launch of its first application for smartphones. That app is a timesheet to help employees independently track regular work hours, break time and any overtime hours for one or more employers. Individuals also can access a glossary, contact information and materials about wage laws through links to the Web pages of the DOL's Wage and Hour Division. According to the DOLâ€™s news release, users will be able to add comments on any information related to their work hours; view a summary of work hours in a daily, weekly and monthly format; and email the summary of work hours and gross pay as an attachment. The app is free and currently is compatible with the iPhone and iPod Touch. The DOL has said that it will explore updates that could enable similar versions for other smartphone platforms (Android and BlackBerry), and other pay features currently not provided for, such as tips, commissions, and bonuses.
The U.S. Department of Labor today announced the launch of its first application for smartphones, a timesheet to help employees independently track the hours they work and determine the wages they are owed. Available in English and Spanish, users conveniently can track regular work hours, break time and any overtime hours for one or more employers.
How many hours have you worked this week? Check your phone.
The Department of Labor has entered the digital age with a splash, and has announced the launch of its first application for smartphones. That app is a timesheet to help employees independently track regular work hours, break time and any overtime hours for one or more employers. Individuals also can access a glossary, contact information and materials about wage laws through links to the Web pages of the DOL's Wage and Hour Division. According to the DOLâ€™s news release, users will be able to add comments on any information related to their work hours; view a summary of work hours in a daily, weekly and monthly format; and email the summary of work hours and gross pay as an attachment.
A police officer has sued the City of Chicago (on behalf of himself and others) seeking pay for time spent dealing with work-related phone calls, voice-mails, e-mails, text messages, and work orders via BlackBerry® devices and similar "personal digital assistants." The officer contends that these activities entitle the group to an award of overtime compensation under the federal Fair Labor Standards Act (FLSA).
The question often arises whether the time spent “donning and doffing” clothes and personal protective equipment is compensable time. Federal courts are divided over this issue. In particular, the courts disagree about the meaning of “clothes” as used in Section 203(o) of the Fair Labor Standards Act. Under this Section, certain employees do not have to be compensated for changing their “clothes.” Courts interpret the meaning of clothes differently. While some courts have held that it includes both uniforms and personal protective equipment, other courts have held that personal protective equipment is not included. The Supreme Court has not addressed the issue, and recently refused to review a lower court’s ruling that personal protective equipment is included within Section 203(o). Sepulveda v. Allen Family Foods Inc. While the Supreme Court declined to find a split in the Appellate Courts, the reality remains that federal courts interpret the scope of the exclusion under Section 203(o) differently.
Is PDA Use Relevant As To Exempt Employees?
Our last post provoked an inquiry about what impact, if any, after-hours or off-day use of a BlackBerry® or another personal digital assistant might have with respect to employees whom an employer treats as exempt under one of the federal Fair Labor Standards Act's executive, administrative, or professional exemptions. The U.S. Labor Department's exemption regulations for these so-called "white collar" employees require that most such employees be paid on a "salary basis" in order to be exempt. This is where the problem might arise.
Latest DOL Opinion On Donning and Doffing, Not So Fast - 6th Circuit Says.
Although it may no longer be true, donning and doffing cases at one time were clearly the big ticket FLSA collective action. And for those still fighting those fights who have been concerned about the thumb that the DOL put on the scale with their June 16 Administrator's Interpretation (No. 2010-2), which reversed course from two earlier opinion letters issued this decade (yes, Obama administration vs. Bush administration), you now have some very favorable authority from yeseterday's decision by the 6th Circuit in Franklin v. Kellogg Co. (6th Cir. 8/31/10) [pdf].
Chicago Officer Sues Over After-Hours PDA Use.
A police officer has sued the City of Chicago (on behalf of himself and others) seeking pay for time spent dealing with work-related phone calls, voice-mails, e-mails, text messages, and work orders via BlackBerry® devices and similar "personal digital assistants". The officer contends that these activities entitle the group to an award of overtime compensation under the federal Fair Labor Standards Act.
DOL Addresses Meaning Of "Clothes" Under FLSA.
The U.S. Department of Labor (DOL) recently clarified the definition of "clothes" under Section 203(o) of the Fair Labor Standards Act (FLSA). Section 3(o) provides that time spent "changing clothes or washing at the beginning or end of each workday" is excluded from compensable time under the FLSA if the time is excluded from compensable time pursuant to "the express terms or by custom or practice" under a collective bargaining agreement. The DOL now has concluded that this exemption "does not extend to protective equipment worn by employees that is required by law, by the employer, or due to the nature of the job."
Update: Court Might Have Rejected Donning/Doffing "Administrator Interpretation" Without Citing It. A Subtle Dig?
We previously posted about the U.S. Labor Department's Administrator Interpretation saying that unionized employers cannot exclude time spent donning and doffing certain protective equipment from compensable "hours worked," even if an applicable union contract or practice treats the time as unpaid. On August 2, 2010, the Seventh Circuit U.S. Court of Appeals held that unionized workers at a Kraft Foods plant could sue under Wisconsin state law for wages relating to their time spent donning and doffing certain safety gear and other items at work. They made their claim even though Kraft and the union had earlier agreed that this time would be non-compensable under the federal Fair Labor Standards Act's Section 203(o). Spoerle v. Kraft Foods Global, Inc., 16 W.H. Cases2d (BNA) 711 (7th Cir. 2010).
Are You Saving On Wage Costs By "Rounding" Worktime?
For many years, some employers have chosen to "round" non-exempt employees' worktime in computing wages. This is emerging as another recurring claim in the continuing flood of lawsuits filed under the federal Fair Labor Standards Act. If you believe that ending such a procedure would cause your wage costs to increase, this is a danger signal.
DOL Issued its Second Administrator’s Interpretation that Alters the Definition of “Clothes” Under the FLSA.
The Wage and Hour Division of the Department of Labor (DOL) issued its Second Administrator’s Interpretation addressing what is considered “clothes” for purposes of determining compensable time under the Fair Labor Standards Act (FLSA). This most recent Interpretation reverses several opinion letters by stating that the exemption for donning or doffing clothes under Section 3(o) applies only to apparel and not several types of protective safety equipment. The Administrator also concluded that even though employers do not have to compensate employees for donning or doffing clothes if they are exempt under Section 3(o), these activities could be principal activities and trigger the beginning or end of the workday, resulting in compensable time.
DOL Reverses Its Position On Donning And Doffing "Protective Equipment" In Union Setting.
In a pronouncement applicable to unionized workplaces, this week the U.S. Labor Department's Wage and Hour Division issued an Administrator's Interpretation stating that unionized employers cannot treat time spent donning and doffing certain "protective equipment" as unpaid time, even if an applicable union contract or practice treats the time as unpaid. This reverses DOL's previous positions published in opinion letters in 2002 and 2007. The new position revives DOL's earlier position in opinion letters from 1997-2001.
Depending on who you ask, PDAs are either the greatest workplace innovation since desktop computers, or the bane of an employee's existence. In today's wireless environment, BlackBerrys, iPhones, and other handheld devices increasingly provide employees with round-the-clock access to email from remote locations. While wireless gadgets allow us to maximize productivity in competitive economic times, they may also give rise to overtime, minimum wage and other wage payment claims.


1. The following Terms and Conditions apply for all sales and deliveries of Floragard Vertriebs-GmbH (Floragard). Any Terms and Conditions of Business or Purchase of the buyer conflicting with or deviating from our Terms and Conditions shall only apply if expressly approved in writing by Floragard.
Unless provided otherwise subsequently, the Incoterms in the version valid at the time a respective contract is concluded shall apply both for domestic orders and for orders from abroad.
2. Any offers from Floragard are subject to change.
Any agreements made with sales outlets, representatives and agents of Floragard prior to the conclusion of a contract shall require written confirmation from Floragard to become subject of the contract.
Should there be changes to our costs for goods to be delivered under a contract that has been concluded at a fixed price and constitutes a continuous obligation or extends to more than 4 months due to agreed delivery periods, then we reserve the right to increase our prices commensurate with these changes as of the 4th month. If the buyer objects to the new prices, he shall be entitled to extraordinary termination of the contract.
3. Except where the buyer collects the goods, all prices for goods delivered by rail are carriage paid to the agreed station, delivered by lorry carriage paid to the depot of the recipient and delivered by ship carriage paid to the designated port of destination.
The buyer shall send the original bills of carriage to Floragard on request.
In the case of collection, the risk passes to the buyer as soon as the consignment is handed over to the person carrying out the transport.
4. The goods are invoiced at the list prices applicable on the day the order is received. Unforeseeable additional costs incurred by Floragard, for example due to weather conditions or statutory measures (e.g. Green Dot, road tolls, taxes), are paid by the buyer separately.
All prices are net unit prices in Euro. The statutory VAT applicable on the day of performance or delivery is added to this. Any pallets used for transportation are invoiced separately at EUR 9.50 each plus statutory VAT and included on the invoice for the respective consignment. This separate charge for pallets does not apply in countries subscribing to the Euro-pallet exchange pool, provided the pallets are exchanged immediately after unloading.
Road tolls are accounted for separately and must be paid by the buyer in addition to the list prices.
5. In the case of shipments abroad, Floragard shall only pay customs charges, taxes and other duties, as well as costs for customs clearance and processing at the borders of transit countries or of the destination country, if Floragard has expressly agreed to do so in writing.
6. Any increases of transport costs between the conclusion of the contract and delivery shall be borne by the buyer; the same shall apply in the case of changes to statutory fees, costs, charges and conditions.
7. As the manufacture of our products is weather-dependent, delivery is made only roughly on specified delivery dates within the scope of availability unless specific delivery deadlines or dates have been agreed as fixed. Partial deliveries are permitted.
The commencement of an agreed delivery period presupposes that the buyer duly meets his obligations on time.
Should the buyer be in default of acceptance or culpably violate other duties of cooperation, then Floragard shall be entitled to demand compensation for any accrued damages, including additional costs. Floragard reserves the right to assert further claims. Should the aforementioned conditions exist, the risk of accidental loss or deterioration of the goods shall pass to the buyer at the time the buyer is deemed in default of acceptance or payment.
8. Floragard delivers standard commercial goods suitable for ordinary use. They are delivered in (packaging) units and/or volumes in compliance with the DIN EN 12 580 standard.
The structure of the raw peat (raised-bog peat) and other organic raw materials for peat and peat products may be subject to natural variations. The weight of peat and peat products may also vary depending on structure and moisture. Any deviation of the goods from sales samples or previous consignments shall therefore not constitute a defect of quality, unless the buyer cannot be reasonably expected to accept such deviation.
9. With respect to the obligation to inspect and notify of defects, § 377 of the German commercial code applies if the buyer is a trader for the purpose of the German commercial code as long as notification of defects is issued in writing and the special conditions of the buyer and the fault of the same are disregarded in the calculation of the defect notification period. Floragard must be notified of obvious defects particularly with respect to the identity and quantity of the goods by no later than 2 days after delivery and notified of such defects as can be found only in the course of the immediate due inspection by no later than 8 days after delivery. Notification of hidden defects must be given immediately on discovery. Prompt dispatch of the notification is adequate in order to comply with the term. Floragard must be informed immediately of transport damage regardless of the aforementioned deadlines.
10. In the event of defects, the buyer must give Floragard opportunity to deliver a defect free item within a reasonable period (subsequent fulfilment). The defective product must be returned. If the subsequent fulfilment has failed or if a reasonable period set by the buyer for the subsequent fulfilment has expired without success or is unnecessary in accordance with the statutory provisions then the buyer may reduce the purchase price or (in the case of significant defects) withdraw from the purchase agreement.
11. The culture substrates and soil additives we supply are natural products of which the properties (e.g. colour, structure, composition) can naturally differ from one delivery to the next. In order to avoid culture risks arising in the products due to microbial and chemical reaction processes as a result of improper handling and storage, our products are to be used only for the culture purposes for which they are intended. Products supplied loose and packaged products should be stored dry and cool, i.e. protected from sun and precipitation as well as contamination by foreign matter, on a concrete/paved floor in roofed storage facilities. They must be used soon, as long-term storage can impair the quality. In particular, culture substrates with slow release fertilisers and propagation substrates for vegetable and decorative plants must be used within a few days.
Our culture substrates and soil additives are not sterile but rather naturally microbially activated. Micro-organisms may be autochthonous or colonise substrates during storage or plant cultivation depending on the time of year and the culture conditions. The large majority of products contain high levels of organic matter, which is inevitably subject to microbial decomposition by fungi, bacteria and other organisms. Saprophytic nematodes may be present in the culture substrates and soil additives in small numbers. Manuring of the culture substrates for plant growth moreover promotes the growth of saprophytic organisms. The presence of saprophytic organisms and the consequences of such, e.g. appearance of fungi, therefore do not constitute product defects.
Colonisation by ubiquitous micro-organisms and the ubiquitous appearance of saprophytic organisms therefore constitute a product defect at most if the products are anthropogenously contaminated with an unnaturally/atypically high quantity of saprophytic organisms or micro-organisms on transfer of risk.
(1) By derogation from § 438 par. 1 no. 3 of the German civil code, the general period of limitation for claims arising from material defects and defects of title is 1 year.
a) In the case of liability due to intent.
b) For damage to life, body or health that are due to negligent breach of duty by the user or to deliberate or negligent breach of duty by a legal representative or agent of the user and for other damages due to grossly negligent breach of duty by the legal representative or agent of the user.
c) If the seller has maliciously concealed the defect.
(2) In the case of claims due to other contractual breaches of duty as a result of unauthorised action and in the case of internal recourse under German product liability law (§ 5 p. 2 ProdHaftG), by derogation from § 195 of the German civil code, the regular period of limitation is 1 year. This does not apply in the cases specified in par. 1 letters a) and b).
(3) Claims by the injured party under product liability law and claims by the company in supplier recourse are not affected by the provisions according to par. 1 and 2.
(4) The start and end of the periods of limitation are determined by the statutory requirements.
a) For damage to life, body or health.
b) For damages due to the breach of a major contractual duty (so-called cardinal duty, the fulfilment of which makes the proper execution of the contract possible at all and upon the adherence to which the contracting partner regularly depends and may regularly depend); in this case, however, our liability is limited to compensation for the foreseeable damage typically occurring.
c) For claims for defects if we have maliciously concealed a defect or provided a guarantee for the quality of the goods. Reference to standards in business transactions implies no guarantee of quality in accordance with § 443 of the German civil code.
d) For claims by the buyer as the injured party in accordance with product liability law. It is not determined thereby that product liability law is applicable between the contracting parties.
14. If we accept bills of exchange, the buyer shall be required to bear the incidental costs.
Cheques and bills of exchange shall only be considered on account of payment and shall not constitute payment as such. These provisions shall also apply if the buyer has been granted a credit line or a letter of credit for the payment.
Floragard may at any time demand provision of security irrespective of the provisions under §. 321 of the German civil code.
15. Invoice totals are due and payable within 10 days after invoice receipt and delivery without specific request. If the buyer fails to pay by the due date then the buyer defaults on the payment – including with no requirement for a reminder in consideration of the service performed in advance by Floragard.
Within the context of a SEPA direct debit mandate, Floragard shall send the pre-notification at least 5 calendar days before the direct debit due date.
The place of performance for payments is the head office of Floragard.
If the buyer fails to pay or fails to pay in full by the due date then Floragard may plead uncertainty (§ 321 of the German civil code) due to this breach of duty as well as exercising the right of withdrawal in accordance with § 323 of the German civil code, including with respect to otherwise existing alternative – further – delivery obligations, and declare other outstanding claims against the buyer to be due immediately.
The buyer may offset only against claims that are undisputed or have been determined without further legal recourse or exercise rights of retention only on the basis of such claims. Moreover, rights or retention are permitted only if they are based on the same contractual relationship.
16. Floragard retains title to the goods the buyer purchases from Floragard in the course of his commercial activities until all claims against the buyer under the business relationship, including any future claims under contracts signed simultaneously or later, have been settled by the buyer. This shall also apply if individual claims for payment or all of Floragard’s claims for payment have been included in a current account and the balance has been struck and accepted.
In the case of default of payment (with respect to payment of the purchase price or due bills of exchange) or in the case of other violations of duty for which the buyer is responsible, Floragard is entitled to take back the goods and the buyer is obligated to surrender them after having been warned unsuccessfully.
Taking back the delivered goods shall only constitute a withdrawal from the contract upon Floragard’s express written declaration to that effect.
The buyer hereby assigns all future claims, including all ancillary rights, accruing to him against customers or third parties through resale or other legal grounds, no matter whether the reserved goods are resold unprocessed or after processing. The buyer is authorised to collect such claims even after assignment. This shall not prejudice Floragard’s right to assert and/or collect the claims themselves, but Floragard undertakes not to collect such claims themselves as long as the buyer duly meets his payment obligations.
Floragard may demand that the buyer inform them of the assigned claims and the parties by whom they are owed, provide them with all particulars necessary for collection, furnish the corresponding documents to them and notify the owing parties of the assignment. If the reserved goods are resold in combination with other goods not belonging to Floragard, then the buyer’s claims against the customer shall be deemed assigned to Floragard in the amount of the delivery price agreed between the buyer and Floragard.
Any treatment, processing and mixing of reserved goods shall be done on behalf of Floragard as manufacturer as defined under § 950 of the German civil code without giving rise to any obligations on the part of Floragard. The processed goods shall be considered reserved goods under these conditions. If the reserved goods are processed or inseparably mixed with other goods not belonging to Floragard, then Floragard acquires co-title to the new item in the same proportion as that between the value of the reserved goods and the other goods involved at the time of processing or mixing. The co-title thus generated shall be considered reserved goods under these conditions.
Floragard undertakes to release the securities, to which they are entitled, to the extent that their value is exceeded by more than 20% of the claims to be secured, provided these have not been settled yet.
The buyer shall only be entitled or authorised to resell or use the reserved goods provided that the claims are actually assigned to Floragard in accordance with the above provisions.
The buyer shall not be entitled to dispose of the reserved goods in any other way than by using or reselling them in the ordinary course of business; he shall in particular not be entitled to pledge them or transfer ownership by way of security.
The buyer shall notify Floragard immediately of any enforcement proceedings or other interventions of third parties concerning the reserved goods or assigned claims and hand over all documents necessary for objection (in particular returns of execution or attachment orders and transfers of garnished claims). At the same time, the buyer shall enclose an affidavit with his notification regarding the identity of the attached items.
Upon stoppage of payment or filing and institution of insolvency proceedings, the right to resell and use the reserved goods, as well as the direct debit mandate for assigned claims, shall expire; the direct debit mandate shall also expire in the event of a protest of a cheque or bill of exchange.
Title to the reserved goods and the assigned claims shall pass to the buyer upon settlement of all claims of Floragard arising from the business relationship.
17. Any circumstances making the production or delivery of sold goods impossible or impediments that can only be eliminated with unreasonable effort, such as force majeure, war, riots, strikes, lock-outs, measures by authorities or statutory measures beyond the control of Floragard, breakdown of machinery and other business disruptions, even if due to the weather or traffic, whether originating with the person of Floragard or with the contracting plant and other suppliers, shall release Floragard from the duty to deliver for the duration of the impediments or their after-effects without giving rise to any obligation to subsequent performance on the part of Floragard.
If, in these cases, delivery in full or part has not taken place within 2 months after conclusion of the contract or requisition, both the buyer and Floragard shall be entitled to withdraw from that part of the contract related to the goods affected by the impediment or disruption. A declaration to that effect must be received by the other contracting party within a further two weeks.
18. These Terms and Conditions and the entire legal relationship between Floragard and the buyer are subject to the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
The German version of these Terms and Conditions shall be decisive, even if they are translated into another language.
19. Should one of the provisions of these Terms and Conditions be or become invalid, this shall not affect the validity of all other provisions.
The registered place of business of Floragard shall be exclusive place of jurisdiction for all disputes directly or indirectly arising from this contractual relationship.


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Party Name: UNITED STATES v. KRAUS et al. SAME v. JOSEPH AJELLO CO., Inc., et al. SAME v. BORNSTEIN et al.
George L. Donnellan, of New York City, for petitioners.
David V. Cahill and Robert A. Peattie, both of New York City, for the United States.
Except for the character of the documents seized, the law in cases of unlawful searches is now well settled. Weeks v. U.S., 232 U.S. 383, 34 Sup.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177; Silverthorne Lumber Co. v. U.S., 251 U.S. 385, 40 Sup.Ct. 182, 64 L.Ed. 319; Flagg v. U.S., 233 F. 481, 147 C.C.A. 367; Veeder v. U.S., 252 F. 414, 164 C.C.A. 338; United States v. Mills (C.C.) 185 F. 318. When seized, they must be returned, with them all copies taken while the officers retained their illegal possession. Furthermore, the prosecution may not use at the trial or in its preparation any information obtained from their scrutiny. Unless, therefore, the respondents can justify, the documents must be returned. They do justify: First, on the ground of the petitioners' consent, which presents an issue of fact; and, second, on the ground that, as the petitioners were wholesale liquor dealers and had taken out basic permits, the records kept by them were subject to inspection under sections 10 and 34 of title 2 of the Volstead Act and section 3318 of the Revised Statutes, and, if to inspection, then to the enforcement of that right without process, even to the extent of seizure. Farther they insist that, because the records were not properly kept, those papers were included within their powers which should have been transcribed into the records.
concessions that they had the right to break and enter, though the petitioners wrongfully refused to allow them to inspect, nor does it either follow that they had the right to seize the records and papers after an inspection.

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Justia › US Law › US Case Law › US Supreme Court › Volume 220 › Schlemmer v. Buffalo, Rochester & Pittsburgh Ry. Co.
Where on writ of error the case is reversed on the federal question and remanded to the highest state court for further proceedings in conformity with the opinion of this Court, the state court should, in its remittitur require the further proceedings by the lower court to be in conformity with the opinion of this Court, as the matter involved is a federal right within the protection of this Court.
If, however, the trial court on the second trial of a case reversed by this Court on the federal question does give to the statute involved the construction and effect given by this Court, the judgment will not be reversed because the remittitur from the highest court to which the mandate of this Court was sent did not specifically direct that further proceedings be had in conformity with the opinion of this Court.
The Safety Appliance Acts of March 2, 1893, c.196, 27 Stat. 531; April 1, 1896, c. 87, 29 Stat. 85; March 2, 1903, c. 976, 32 Stat. 943, took away from the carrier the defense of assumption of risk by the employee, but did not affect the defense of contributory negligence.
There is a practical and clear distinction between assumption of risk and contributory negligence. By the former, the employee assumes the risk of ordinary dangers of occupation and those dangers that are plainly observable; the latter is the omission of the employee to use those precautions for his own safety which ordinary prudence requires.
Under the Safety Appliance Acts, an employee does not, by reason of his knowledge of the fact, take upon himself the risk of injury from a car unequipped as required by the acts; but he is not absolved from duty to use ordinary care for his own protection merely because the carrier has failed to comply with the law, and, in the absence of legislation taking it away, the defense of contributory negligence is open.
negligence on the part of plaintiff's intestate, apart from the question of assumption of risk, and the state court denied plaintiff no federal right under the Safety Appliance Acts in dismissing the complaint on the ground of contributory negligence.
The facts, which involve the construction of the Safety Appliance Acts and the duties and rights of carriers and of their employees thereunder, are stated in the opinion.
This action was brought in a Pennsylvania court to recover for wrongfully causing the death of Adam M. Schlemmer, plaintiff's intestate, as a result of injuries received while in the employ of the railroad company. The case has been once before in this Court, and is reported in 205 U. S. 205 U.S. 1. The injury was received while Schlemmer, an employee of the defendant railroad company, was endeavoring to couple a shovel car to the caboose of one of the railroad trains of the defendant company.
Before the case first came here, the Supreme Court of Pennsylvania had held that the plaintiff could not recover damages because of the contributory negligence of the deceased. 207 Pa.198. This Court reversed the Supreme Court of Pennsylvania and remanded the case for further proceedings in conformity with the opinion of this Court.
of the facts will be necessary. The shovel car was not equipped with an automatic coupler, as required by the Act of March 2, 1893, c. 196, § 2, 27 Stat. 531, and that fact was the basis of the action for damages. The shovel car had an iron drawbar, weighing somewhere about eighty pounds, protruding beyond the end of the shovel car. The end of this drawbar had a small opening, or eye, into which an iron pin was to be fitted when the coupling was made; this was to be effected by placing the end of the drawbar into the slot of the automatic coupler with which the caboose was equipped. Owing to the difference in the height, the end of the shovel car would pass over the automatic coupler on the caboose in case of an unsuccessful attempt to make the coupling, and the end of the shovel car would come in contact with the end of the caboose.
Plaintiff's intestate was an experienced brakeman, having been in the service fifteen or sixteen years. At the time when he undertook to couple the train with the shovel car to the end of the caboose, he went under the end of the shovel car and attempted to raise the iron drawbar so as to cause it to fit into the slot of the automatic coupler on the caboose. While so doing, his head was caught between the ends of the shovel car and the caboose, and he was almost instantly killed. This happened between wight and nine o'clock on an evening in the month of August, and while dusk had gathered, it was not very dark, and the testimony tends to show that the situation was plainly observable.
transportation between points of different states, and therefore was being used in interstate commerce; that the shovel car was a car within contemplation of § 2 of the act of Congress; that § 8 of that act had deprived the company of the defense of assumed risk on the part of an employee; that the ruling in the Pennsylvania court upon contributory negligence was so dependent upon an erroneous construction of the statute that it could not stand. 205 U. S. 205 U.S. 1, 205 U. S. 13. As the alleged right to recover was under a federal statute, alleged to have been improperly construed against the plaintiff in error, the case presented a claim of federal right, a denial of which was reviewable here, and the case, for the reason stated, was reversed by this Court and sent back for further proceedings in conformity with the opinion of this Court.
We find no occasion to depart from the former decision, and will proceed to examine the record as now presented, which, in material respects, differs from the one previously before the court. It is first objected by the plaintiff in error that the Supreme Court of Pennsylvania remanded the case to the lower court for trial contrary to the mandate sent down upon the reversal by this Court. The Supreme Court of Pennsylvania remitted the case, after receipt of the mandate from this Court, to the lower court, to be retried "on the settled principles of contributory negligence, as heretofore declared in the decisions of this Court" -- Supreme Court of Pennsylvania. The counsel for plaintiff in error moved the Supreme Court of Pennsylvania to amend its judgment and remittitur so as to conform with the mandate of this Court, which motion was overruled.
Court, the matter involved being a right of federal creation within the ultimate protection of this Court.
If an examination of the record indicated that, by reason of this mandate, the subsequent proceedings in the state court had operated to deprive the plaintiff in error of the benefit of a trial under the federal statute properly construed, we should be constrained to reverse the case. But an examination of the record discloses that the trial judge regarded the decision of this Court as settling the right of the plaintiff in error to rely upon the federal statute in question, and as conclusive of the fact that the shovel car was being employed in interstate commerce at the time of the injury, and was a car within the meaning of the act, and that assumption of risk was no defense to the action. So it does not appear that the form of mandate sent down by the Supreme Court of Pennsylvania, after the case was reversed here, worked to the prejudice of the plaintiff in error.
The trial court submitted the case to the jury upon the issues joined under the federal statute, including the question whether the plaintiff's intestate, at the time of the injury, had been guilty of contributory negligence. Under these instructions, the jury found a verdict for the plaintiff.
The court then granted a rule to show cause why judgment should not be rendered non obstante veredicto, which motion was granted, and an opinion delivered in which the judge held that the testimony did not warrant the conclusion that, in making the coupling, the risk was so obvious that an ordinarily careful and prudent brakeman would not have undertaken it, and therefore, under the statute, assumption of risk was no defense, but reached the conclusion that the deceased was guilty of contributory negligence in failing to exercise care according to the circumstances in making the coupling in the way he attempted to make it, and in not adopting a safer way, which was pointed out to him at the time.
"Per Curiam: It is the settled law of Pennsylvania that any negligence of a party injured which contributed to his injury bars his recovery of damages without regard to the negligence, either greater or less than his own, of the other party. The present is a clear case of contributory negligence within this rule. The evidence is indisputable that the unfortunate decedent not only attempted to make the coupling in a dangerous way when his attention was directly called to a safer way, but also did it with reckless disregard of his personal safety by raising his head, though twice expressly cautioned at the time as to the danger of so doing."
of risk sometimes shades into negligence as commonly understood, there is, nevertheless, a practical and clear distinction between the two. In the absence of statute taking away the defense, or such obvious dangers that no ordinarily prudent person would incur them, an employee is held to assume the risk of the ordinary dangers of the occupation into which he is about to enter, and also those risks and dangers which are known, or are so plainly observable that the employee may be presumed to know of them, and if he continues in the master's employ without objection, he takes upon himself the risk of injury from such defects. Choctaw, Oklahoma &c. R. Co. v. McDade, 191 U. S. 64, 91 U. S. 67-68, and former cases in this Court therein cited.
as they existed. This has been the holding of the courts in construing statutes enacted to promote the safety of employees. Krause v. Morgan, 53 Ohio St. 26; Holum v. Railway Co., 80 Wis. 299; Grand v. Railway Co., 83 Mich. 564; Taylor v. Manufacturing Co.,143 Mass. 470. And such was the holding of the Court of Appeals of the Eighth Circuit, where the statute now under consideration was before the court. Denver & Rio Grande R. Co. v. Arrighi, 129 F. 347.
In the absence of legislation at the time of the injury complained of taking away the defense of contributory negligence, it continued to exist, and the federal question presented upon this record is was the ruling of the state court in denying the right of recovery upon the ground of contributory negligence, in view of the circumstances shown, such as to deprive the plaintiff in error of the benefit of the statute which made assumption of risk a defense no longer available to the employer? To answer this question, we shall have to look to the testimony adduced at the trial, all of which is contained in the record before us. As we have already said, the testimony shows that the plaintiff's intestate was an experienced brakeman. A witness, who is uncontradicted in the record, testified that, just before Schlemmer got out of the caboose, when he saw the train backing up, he was told: "We had better shove that up by hand, the same as we did in Bradford. That is a dangerous coupling to make." (At Bradford, the method of making the coupling was by means of pushing the caboose up against the train, instead of backing the train against the caboose.) To this Schlemmer replied, with emphasis, "Back up." He then proceeded to make the coupling, with the result stated.
"Never mind, I will make this coupling." To which the witness answered: "Well, you will have to get down." Witness testified that he called to him twice to get down, the last time not more than a second, possibly a couple of seconds, before he was injured. This witness furthermore testified that he had a sufficient crew to push the caboose up by hand, that there was plenty of force to shove the caboose up in that way; that that was a great deal safer way to make the coupling than backing onto the caboose. The testimony further shows that there was plenty of room under the projection of the shovel car to operate the drawbar and raise it up. In fact, in this manner, the coupling was made a few minutes after the unfortunate occurrence which resulted in the death of the deceased.
As the record is now presented, there is no proof in the case that the deceased was ordered to make the coupling in the manner he did, and there is testimony to the effect that, just before the injury, the conductor in charge of the train said to the deceased: "Mr. Schlemmer, you be very careful now, and keep your head down low, so as not to get mashed in between those cars." He said he would.
In view of this record, we cannot say that the court, in denying a recovery to the plaintiff upon the ground of contributory negligence of the deceased, denied to her any rights secured by the federal statute. Entirely apart from the question of assumption of risk, which, under the law, could not be a defense to the plaintiff's action, as the law then stood, there remained the defense of contributory negligence.
the time called to his attention. Furthermore, he was injured in spite of repeated cautions, made at the time, as to the great danger of being injured if he raised his head in attempting to make the coupling in the manner which he did.
As we have said, the federal question in the record, and the only one which gives us jurisdiction, is did the trial and judgment deprive the plaintiff in error of rights secured by the federal statute? The views which we have expressed require that the question be answered in the negative.
* By the third section of the Act of April 22, 1908, 35 Stat. 65, c. 149, amending the Employers' Liability Act, no employee injured or killed is to be held guilty of contributory negligence in any case where the violation by a common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.

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Mark G. Sheridan is a partner with diverse experience in many areas of litigation, with particular expertise in reinsurance and insurance coverage disputes. He has successfully argued matters in the Supreme Courts of Illinois and New Hampshire, as well as lower state and federal courts in California, Colorado, Delaware, Florida, New York, Pennsylvania, and Texas. Mark has received many professional awards, including recognition by Who’s Who Insurance and Reinsurance 2017, Illinois Super Lawyer in the practice of insurance coverage, and the prestigious “Leading Lawyers,” which recognizes the top 5% of insurance counsel.
Mark has arbitrated and litigated numerous reinsurance disputes under both treaties and facultative certificates, and he regularly advises ceding companies and reinsurers on their rights and obligations under a wide variety of reinsurance contracts. Mark has also successfully represented insurance companies in numerous complex insurance coverage disputes involving underlying claims of environmental property damage, construction defects, personal injury and advertising injury claims, and various toxic torts, including breast implants and asbestos.
Confidential Reinsurance Arbitration, 2017. Reinsurers not liable for any portion of cedent’s billing based on aggregation of asbestos bodily injury losses.
Pacific Employers Insurance Co. v. GLOBAL Reinsurance Corp. of America, 2010 WL 1659760 (E.D. Pa. April 23, 2010), reconsideration denied, 2010 WL 2376131 Judgment on the pleadings for reinsurer; follow the fortunes doctrine did not require the reinsurer to pay expenses in addition to the limits of liability on the facultative certificates.
EnergyNorth Natural Gas Co. v. Certain Underwriters at Lloyd’s, London, 934 A.2d 517 (N.H. 2007) In a matter of first impression, the New Hampshire Supreme Court unanimously adopted pro rata allocation for long-term environmental pollution claims.
Travelers Casualty & Surety Co. v. Gerling Global Reinsurance Corp. of America, 419 F.3d 181 (2d Cir. 2005) Cedent’s post-settlement allocation of loss is controlled by the follow the fortunes doctrine.
Employers Insurance Co. of Wausau v. American Re-Insurance Co., 256 F. Supp. 923 (W.D. Wis. 2003) Cedent’s declaratory judgment costs covered by facultative reinsurance certificates.
Guess, Inc. v. Zurich-American Insurance Co., No. 02C86420 (Cal. Super. 2001) Summary judgment granted for a general liability insurer, holding that the false imprisonment component of the ”personal injury” coverage did not create a duty to defend a clothing manufacturer against claims brought by Vietnamese immigrants who alleged they were held in slave labor camps in central Los Angeles.
Travelers Casualty & Surety Co. v. Certain Underwriters at Lloyd’s of London, 760 N.E.2d 319 (N.Y. 2001) Amicus brief for Reinsurance Association of America; court held that follow the fortunes doctrine does not apply to the interpretation of the reinsurance contract.
Hills v. Bridgeview Little League Association, 745 N.E.2d 1166 (Ill. 2000) In a matter of first impression involving the premises liability of a Little League baseball team, Illinois Supreme Court reversed judgment against the team.

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text: 128 and levees.4 Speaking of the inefficacy of local efforts in con- nection with levee construction, this 1875 report said:5 In fine, then, the experience of one hundred and fifty years has utterly failed to create judicious laws or effec- tive organization in the several States themselves, and no systematic co-operation has ever been attempted be- tween them. The latter is no less important than the former, for the river has no respect for State boundaries * * *. The foregoing sequence of events led to the establishment of the Mississippi River Commission in 1879, with Congress delegating to it the duty of considering such plans as would improve navigation of the Mississippi, "prevent destructive floods," and promote and facilitate commerce, trade, and the postal service.6 But until 1890 Congress restricted appropria- tions for the Commission to improvement of navigation, ex- pressly prohibiting the use of funds on levees for reclaiming lands or preventing injury to lands by overflow.7 Between 1890 and 1917, however, appropriation statutes permitted Com- mission expenditures not only for navigation improvement, but also to serve broader interests of commerce.8 Otherwise, federal interest in flood control during this period prior to 1917 'H. Exec. Doc. No. 127, 43d Cong., 2d sess. (1875). 'Id. p. 19. 8 Act of June 28, 1879, § 4, 21 Stat. 37, 38, as amended, 33 U. S. C. 647. As to later extension of geographic limits of the Commission's jurisdiction, see supra, p. 98. ' Act of March 3, 1881, § 1, 21 Stat. 468, 474; Act of August 2, 1882, § 1, 22 Stat. 191, 208; Act of January 19, 1884, 23 Stat. 1; Act of July 5, 1884, § 1, 23 Stat. 133, 146; Act of August 5, 1886, § 1, 24 Stat. 310, 328-329; Act of August 11, 1888, § 1, 25 Stat. 400, 421. If Congress had doubts as to its power to make appropriations for flood control, they were not shared by President Arthur, who, in recommending favorable consideration by Congress of an 1882 Commission report on flood control, said: "The constitutionality of a law making appropriations in aid of these purposes cannot be questioned." 8 Richardson, Messages and Papers of the Presidents, 95 (1896). 8 For a listing of the relevant statutes, see Laurent, A Compilation op the More Important Congressional Acts, Treaties, Presidential Mes- sages, Judicial Decisions, and Official Reports and Documents Having to do With the Control, Conservation, and Utilization of Water Re- sources, TVA Legal Department, pp. 68-69 (1938).

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Regular conference dedicated to the reports and elections of the Ural Polytechnic Institute (UPI), Ural State University (USU) and Ural Federal University (UrFU) Alumni Association took place on January 26, 2018.
You can send your proposals on the work of the Association and the draft work plan for years 2018-2020 to the management of the UPI, USU and UrFU Alumni Association: alumni@urfu.ru.
Summing up the results of the contest for the biggest contribution to the promotion of the university “Recognition 2017”.
1.1 Point “4.21 One alumnus, member of the Association from each of the departments, institutes or faculties that existed before the unification of the two universities, is elected to the Board. The positions include chairpersons, two co-chairpersons and Executive Director of the Association” is to be replaced with “One alumnus, member of the Association from each of the department, institute or faculty that existed before the unification of the two universities, is elected to the Board. The positions include chairpersons, two co-chairpersons and Executive Director of the Association. Every co-chairperson can on their own initiative nominate alumni of UPI, USU and UrFU to the board of the Association, with a maximum of 5 people from each co-chairperson”.
1.2 Point “5.1 Registration and yearly membership fees, charitable and earmarked contributions are paid to the UrFU and Alumni Projects Support Fund (hereinafter referred to as "Fund") under the agreement of cooperation between the Association and the Fund” is to be replaced with “The Alumni Association is funded through charitable donations and grants. Membership fees are voluntary and contributions are paid to the UrFU and Alumni Projects Support Fund (hereinafter referred to as "Fund") under the agreement of cooperation between the Association and the Fund”.
Anatoliy I. Matern. Born 1951. Graduated from the Chemical Engineering faculty of UPI in 1973. Member and Commander of the Student Construction Brigade “Horizon”. 1973 to 1975 – serving as a tank platoon commander in the army. Has been working in UPI since 1975. 1988 to 2007 – Dean of the Chemical Engineering faculty in UPI. December 2007 to June 2010 – Rector of UPI; July 2010 to 2015 – First Vice-Rector of UrFU. Currently Director of the Innovative Center for Chemical and Pharmaceutical Technologies. Member of the Joint Council of Chemical Sciences of the Ural Branch of the Russian Academy of Sciences, member of the editorial board of “Surveillance and Monitoring” journal. Presidium member of the Union of Chemical Industry Companies in Sverdlovsk region. Professor, Ph.D. in Chemistry. Honorary worker of higher education.
Dmitry V. Bugrov. Born in 1962 in the family of graduates of Ural State University. Graduated from the faculty of History of USU in 1984. 1980 to 1984 – member of the USU Crimean archeological expedition. 1994 to 2007 – the Dean of the Faculty of History; April 2007 to May 2011 – Rector of USU. Since 2011 – the First Vice-Rector of UrFU. Member of the Joint Council of Humanities of the Ural Branch of the Russian Academy of Sciences. Member of the fourth convocation of the Ekaterinburg Сity Duma (2005-2009). Since 2009 – President of the Ural Association of Tourism; member of the Panel of the Ministry of International and External Economic Relations of the Sverdlovsk region; member of the Tourism Development Council of the Sverdlovsk region.
Alexander V. Ponomarev. Born 1957. Graduated from the Chemical Engineering Faculty of UPI. 1983 - becomes Candidate of chemical sciences; 1983-1985 – Deputy Chairman of the UPI Student Union for organizational activities; 1996-2010 – Vice-rector for non-curricular student activities at UPI; 2009 – receives doctoral degree in Pedagogy; 2008-present time – head of the Academic Department of Youth Management in UrFU; 2010-2011 – Vice-rector for youth and social policy of UrFU; 2012-present time – Executive Director of the UPI, USU and UrFU Alumni Association. 2014-present time – Deputy First Vice-rector of UrFU. Honorary worker of higher vocational education of the Russian Federation; 2004 – honorary worker of youth policy of the Russian Federation; 2005 – Laureate of the Russian Federation Government Prize in Education; 2008 – honorary worker of higher education of the Russian Federation; honorary worker of education of the Republic of Mongolia; was awarded a Diploma of Honor by the Kyrgyz Republic and a medal “Friendship” by the Republic of Mongolia.
From the Department of Physics: Marina N. Vshivtseva – graduated from the Faculty of Physics in 1984. Executive Vice-president of the regional employers council “The Sverdlovsk Regional Council of Industrialists and Entrepreneurs”.
From the Department of Chemistry: Irina V. Kochergina – graduated from the Faculty of Chemistry in 1971. Director of the Ekaterinburg “Study Abroad” center.
From the Department of History: Alexander V. Vasilevsky – graduated from the Faculty of History in 1993. Deputy Head of the Regional Office of the Strategic Initiatives Agency for new projects promotion.
From the Department of Philology: Alexey V. Glazyrin – graduated from the Faculty of Philology in 1994. Director General of the “Newton” group.
From the Department of Political Science and Sociology: Marina P. Gnativ – graduated from the Department of Sociology in 1999/2001. Head of the Traffic Center for Professional Staff Selection at Sverdlovsk Railway, branch of «RZD» JSC.
From the Department of Arts and Sociocultural Technologies: Aslan M. Kagiev – graduated from the Department in 2014. Deputy First Vice-Rector of Students’ Capacity Development of UrFU, President of the Students Union of UrFU.
From the Department of Cultural Studies: Alisa Y. Prudnikova – graduated from the Faculty of Art and Cultural Studies of Ural State University in 2003. Head of the Ural branch of the State Center for Contemporary Art.
From the Department of International Relations: Farit R. Gimaditdinov – graduated from the Faculty of International Relations of Ural State University in 2004. Head of Foreign Economic Activities Office at “Medtechnica” company.
From the Department of Mechanical Engineering: Alexander B. Kotelnikov – graduated from the Faculty of Mechanical Engineering of UPI in 1980. Manager of “Mashprom” research company.
From the Department of Metallurgy and Metal Science: Igor V. Kudryavtsev – graduated from the UPI Faculty of Metallurgy in 1986. Executive Vice-president of the regional employers council “The Sverdlovsk Regional Council of Industrialists and Entrepreneurs”.
From the Department of Constructional Materials Science: Tatiana Y. Frolova, graduated from the Faculty of Constructional Materials Science in 1998. Executive Director of “UralBeton” LLC.
Institute of Chemical Engineering: Alexey Y. Karavaev – graduated from the UPI Faculty of Chemical Engineering in 1991. Director of the “Gulliver” furniture mall.
Institute of Physics and Technology: Mikhail V. Zhukovsky – graduated from the UPI Faculty of Physics and Technology in 1978. Head of the Industrial Ecology institute of the Ural Branch of the Russian Academy of Sciences.
Institute of Radioelectronics and Information Technology: Mark V. Markov – graduated from the UPI Faculty of Radio Technology in 2004. Head of the “Smart City” project in “Gas Service” LLC.
Graduate School of Economics and Management: Anton A. Dzhugan – graduated from the UPI Faculty of Economics and Management in 2003. Deputy Head of the Ural branch of “Moscow Exchange” PJSC.
Ural Power Engineering Institute: Pavel A. Martyanov – graduated from the UPI Faculty of Thermal Power Engineering in 1996. Head of Bogdanovich district.
Institute of Civil Engineering: Alexey V. Birulin – graduated from the UPI Faculty of Civil Engineering in 2001. Manager of “PIK Group” division in Ekaterinburg.
Institute of Fundamental Education: Alexander S. Levedev – graduated from the Institute of Fundamental Education in 2012. Lead software engineer at 1C systems Development Office in “UMMC Holding”. PhD student of UrFU.
Institute of Public Administration and Entrepreneurship: Sergey V. Kulpin – graduated from the Institute of Public Administration and Entrepreneurship in 2010. Deputy Director of the Institute of Public Administration and Entrepreneurship for project work.
Institute of Physical Education, Sports and Youth Policy: Anastasia Y. Lebedeva – graduated from the Institute of Physical Education, Sports and Youth Policy in 2008. Deputy Head of Physical Education, Sports and Tourism Development Office of Ekaterinburg City Administration.
From the Kazakh Alumni Association of UPI, USU and UrFU: Nurtay A. Abykaev – graduated from the UPI Faculty of Mechanical Engineering in 1972. President of Kazakh National Academy of Natural Sciences.
From the Mongolian Alumni Association of UPI, USU and UrFU: Mukhbayar Gombosurengiyn – graduated from the UPI Faculty of Civil Engineering in 1989.
Sagynbek U. Abdrakhmanov – graduated from the UPI Faculty of Engineering and Economics in 1990. President of Chokmorov Public Foundation.
Gulbara B. Sydykova – graduated from the USU Faculty of Philology in 1985. Professor of Kyrgyz State University named after Jusup Balasagyn.
From the Chinese Alumni Association of UPI, USU and UrFU: Tszin Tszyan – graduated from the UPI Faculty of Engineering and Economics in 1990. Lead specialist in Russian Economics Research of the Institute of Russia, Western Europe and Central Asia of the Chinese Academy of Social Sciences.
From the Armenian Alumni Association of UPI, USU and UrFU: Alexan A. Azaryan – graduated from the UrFU Institute of Radioelectronics and IT in 2014. PhD student of the UrFU Graduate School of Economics and Management.
From the Tadjik Alumni Association of UPI, USU and UrFU: Akmal Tuliev – graduated from the UrFU Ural Power Engineering Institute in 2015.
Andrey L. Vetluzhskih – graduated from the UPI Faculty of Mechanical Engineering in 1978. Head of the Sverdlovsk oblast Federation of Trade Unions. Member of the seventh convocation of the State Duma of the Russian Federation.
Alexander Ya. Shkolnik – graduated from the USU Faculty of Journalism. Director of the Central Museum of the Great Patriotic War.
From the Nevyansk office of the Alumni Association of UPI, USU and UrFU: Evgeny T. Kayumov – graduated from the UPI Faculty of Mechanical Engineering in 1982. Manager of Gornozavodskoy administrative district of the Sverdlovsk region.
From the Noyabrsk office of the Alumni Association of UPI, USU and UrFU: Ildus Kh. Rezyapov – graduated from the USU faculty of Political Science and Sociology in 1999. Adviser to the Head of administration of Noyabrsk.
5. To include the Heads of Nizhniy Tagil And Kamensk-Uralsky offices of the Alumni Association of UPI, USU and UrFU to the Board after their elections.
6. To include the alumni nominated by the co-chairpersons of the Alumni Association of UPI, USU and UrFU to the Board of the Alumni Association of UPI, USU and UrFU.
Evgeny V. Morozov, graduated from the UPI Faculty of Mechanical Engineering in 1998, Director General of the “AIRcom” Engineering Company.
Oleg V. Obukhov, graduated from the Faculty of Economics and Management in 1999; head of the Department of Economics and Production Quality Management, UrFU Graduate School of Economics and Management.
Tatiana A. Nikitenko, graduated from the Faculty of Civil Metallurgy in 1997, Deputy Head of Social Work Department of UrFU.
8. To approve the work plan of the Alumni Association of UPI, USU and UrFU for the years 2018-2020.
9. To approve the Co-chairman A. Matern’s report on the work of the Alumni Association of UPI, USU and UrFU in 2016-2017.

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v. 1, n. 1 (April 1968); Title Page; Next Meeting; General News; The Seaway Opening Dates; Seen Around Port Colborne; General News; Items of Interest; Ship's School Association, Inc.
v. 2, n. 8 (May 1970) [Introduction]; Welland Canal Diary; Marine News; The Steam Tug "Florence"; Our Member - The Journalist!; Ship of the Month No. 8 Cape Trinity; Anyone for a Trip to the Island?
v. 3, n. 4 (January 1971) Meetings; The Editor's Notebook; Marine News; A Return Trip for Cibola and Corona; Hail To The Queen...; Sugar Boats; The Quebec And Ontario Transportation Co. Ltd.
v. 5, n. 1 (October 1972) Meetings; The Editor's Notebook; Marine News; Ship of the Month No. 24 Maplehurst; A Passenger On A Cargo Ship; Special Offer For T.M.H.S. Members; Coal to Newcastle?
v. 11, n. 3 (December 1978) Meetings; The Editor's Notebook; Marine News; Rapids Queen Again; Winter Lay-up Listings; Ship of the Month No. 79 Lloyd S. Porter; More Vessel Passages; Additional Marine News; More Time For Boatwatching?
v. 19, n. 6 (March 1987) Meetings; The Editor's Notebook; Marine News; Ship of the Month No. 153 City of Owen Sound; Once More For Glenellah/Calgarian; The Engine of the Beatty Line Steamer Quebec; United Empire Revisited; Lay-Up Listings - Winter 1986-87; Segwun Needs You!
v. 23, n. 4 (January 1991) Meetings; The Editor's Notebook; Marine News; The North King Mystery Revisited; Ship of the Month No. 188: Bruce Hudson; Lay-Up Listings; Winter Weather (Ugh!); We Stand Corrected; Will there be a New Lake Ontario Ferry Service?
v. 32, n. 1 (October 1999) Meetings; The Editor's Notebook; Marine News; Ship of the Month No. 250: What Became of Tara Hall?
v. 35, n. 1 (October 2002) Meetings; The Editor's Notebook; Marine News; Ship of the Month no. 270: Rocky River Marine News - Continued; Great Lakes Lumber & Shipping Limited ad.
v. 36, n. 9 (Mid-Summer 2004) Meetings; The Editor's Notebook; Marine News; Ship of the Month No. 286: Augustus B. Wolvin; Frank James Bunker; Liberties on the Lakes; Marine News - Continued; Great Lake Memories: Niagara Navigation Co.

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