Failure to pay for travel time results in class action

By G. Phillip Shuler

Patrick Mendez, an hourly paid field supervisor for Radec Corp., a New York commercial electrical construction company, alleged in a lawsuit that he was not paid both regular pay and overtime when required to travel out of town for work and was not paid for 2.5 hours of lunch breaks when he was frequently interrupted for work.

Mendez also alleged that he was terminated in retaliation for complaining about Radec's pay practices.

A federal judge has refused to decertify Mendez's class (collective) action under the Fair Labor Standards Act (FLSA) and has approved a state law class action for failure to pay both regular and overtime pay to workers who were required to travel out of town for work. Seventy-six former and current employees of Radec joined (opted in) in the collective action.

The court ruled that the class was entitled to summary judgment on its claims that class members who traveled to out of town jobs during their normal working hours, whether on work days or non-work days, were entitled to compensation.

The court also granted summary judgment on the overtime claim. The court rejected Radec's claims that the project site was "home" for purposes of classifying workers and that it was their obligation to appear for work at the home site on their own time and that since the employees did not have regular working hours it was impossible to determine whether the travel occurred during their regular hours or outside of their regular hours.

On the issue of lunch breaks, the court refused to grant summary judgment because there were factual issues concerning the frequency and types of interruptions employees experienced. The court concluded that not every interruption renders the entire break compensable under the FLSA and that a jury would have to decide the issues but allowed the claim to proceed as a class action.

General contractor liable to class of subcontractor's employees for harassment. Employees of Iron City Constructors, a subcontractor to Boldt Co., a general contractor, will receive $175,000 as a result of a consent decree with Boldt to settle EEOC charges alleging a hostile racial environment.

The suit alleged that Boldt and Iron City permitted racial graffiti, racial slurs, references to the KKK and racist paraphernalia, including a noose, at the site. The case against Iron City Constructors continues.

EEOC considered the case important because it regards the general contractor responsible for worker safety and for maintenance of the portable toilets at the site. Boldt originally defended that claim on the basis that it was not the employer of the complaining party and no graffiti was found during EEOC's on-site investigation.

In the future, the Consent Decree obligates Boldt to provide anti-harassment training for subcontractors and future subcontracting agreements will obligate subcontractors to implement their own anti-harassment programs.

Build trades unions continue to improve win rates. There were fewer resolved representation elections held during the first six months of 2005 than during the same period of 2004, according to National Labor Relations Board data analyzed by BNA PLUS, BNA's research division. At the same time, unions won a greater percentage of elections in the first half of 2005 than in the first six months of 2004, according to preliminary data.

Unions won 704 of 1,140 representation elections (61.8 percent) held in the first half of 2005, compared with 701 of 1,212 (57.8 percent) held in the first six months of 2004.

Unions, however, organized about 24 percent fewer workers through those votes in January through June 2005 than in the same period in 2004. The number of eligible voters decreased from 86,700 in the first half of 2004 to 71,225 in the first six months of 2005. In elections won by unions in the first half of 2005, there were 34,618 employees eligible to vote, down from 45,729 in the same period of 2004.

AFL-CIO affiliated unions won 60.3 percent of the 1,057 elections in which they participated in the first six months of 2005, compared with 55.3 percent of 1,110 elections in the first half of 2004. The number of employees organized in the first six months of 2005 was 29,357, down from 40,211 in the same time period of 2004.

The International Brotherhood of Electrical Workers participated in 86 elections in the first half of 2005, wining 58.1 percent. Both the percentage win and the number of elections were higher than in the same period of 2004 when the union won 55.8 percent of 77 elections.

The International Union of Operating Engineers participated in the fewest elections among the top five unions (60 elections) in the first six months of 2005. It had the second highest win rate, behind SEIU, winning 63.3 percent of the elections, but organized only 622 workers.

In the first half of 2005, unions improved their win rate in units of one to 49 employees, winning 66.5 percent of 831 elections, up from 61.3 percent of 776 elections in the first half of 2004. However, the win rate in units of 500 or more employees decreased significantly from 51.9 percent of 27 elections to 39.1 percent of 23 elections.

Industries where unions won 50 percent or more of the elections in which they participated included finance, insurance and real estate (81 percent of 21 elections) construction (78.1 percent of 196 elections); health care services only (67.5 percent of 151 elections); wholesale (60.6 percent of 33 elections); mining (60 percent of 10 elections); and transportation, communications and utilities (59.9 percent of 182 elections).

Editor's Note: G. Phillip Shuler is a partner in the New Orleans office of Chaffe, McCall, Phillips, Toler & Sarpy.