CASE STUDY 18.3 DINGES V. SACRED HEART ST. MARY’S HOSPITALS, INC. U.S. COURT OF APPEALS, 164 F.3D 1056 (7TH CIR. 1999). [Sacred Heart St. Mary’s Hospitals operate a hospital in rural Tomahawk, Wisconsin. The hospital’s ambulance department has two emergency medical technicians (EMTs) in-house during the day, but after hours the hospital relies on standby crews. Two EMTs serve as the “first-out” crew and two more as the “second- out” crew. An EMT on first-out status must arrive at the hospital within seven minutes of receiving a page. Members of the first-out crew receive $2.25 per hour of on-call time, plus pay at time-and-a-half for all hours devoted to handling a medical emergency. The hospital credits them with at least two hours’ work for each emergency call even if they are back home in less time, as they usually are. Garret Dinges and Christine Foster asked for and were assigned first- out status. Now, in this suit, they contend that the rewards should have been even greater than those the hospital promised and delivered—that the entire 14 to 16-hour on-call period should be treated as working time, so it would produce 21 to 24 hours’ wages even if they did not receive an emergency call. Both Dinges and Foster live within seven minutes’ drive from the hospital; indeed, the entire city of Tomahawk is within the seven-minute radius, so they can and do pass the on-call time at home or at other activities in or near the city. Mr. Dinges and Ms. Foster cannot travel outside Tomahawk. Each has spent holidays at home rather than with relatives and has been unable to attend weddings, family reunions, parties, and other events. While on call, Dinges cannot assist in operation of the family business, located 20 miles from the hospital. Hunting, fishing, boating, camping, and other recreational activities are restricted to what is possible near the hospital. The hospital responds by emphasizing what EMTs can do during on-call hours: cook; eat; sleep; read; exercise; watch TV and movies; do housework; and care for pets, family, and loved ones at home. Many things in the vicinity of home also are compatible with first-out status. For exam- ple, Foster watches her children participate in sports, attends dance recitals, and goes to restaurants and parties. From a judgment for the hospital, the plain- tiffs appealed.] EASTERBROOK, C. J.... Working more than 40 hours per week draws pre- mium pay under the Fair Labor Standards Act, 29 U.S.C. sec. 207. Should hours spent “on call” be treated as work? According to the Supreme Court, the answer depends on whether one has been “engaged to wait” or is “waiting to be engaged.” Compare Armour & Co. v. Wantock, 323 U.S. 126 (1944), with Skidmore v. Swift & Co., 323 U.S. 134 (1944). That evocative distinction rarely decides a concrete case; on-call time readily can be characterized either way. For most purposes it is best to ask what the employee can do during on-call periods. Can the time be devoted to the or ...

1. CASE STUDY 18.3 DINGES V. SACRED HEART ST.
MARY’S HOSPITALS, INC.
U.S. COURT OF APPEALS, 164 F.3D 1056 (7TH CIR. 1999).
[Sacred Heart St. Mary’s Hospitals operate a hospital in rural
Tomahawk, Wisconsin. The hospital’s ambulance department
has two emergency medical technicians (EMTs) in-house during
the day, but after hours the hospital relies on standby crews.
Two EMTs serve as the “first-out” crew and two more as the
“second- out” crew. An EMT on first-out status must arrive at
the hospital within seven minutes of receiving a page. Members
of the first-out crew receive $2.25 per hour of on-call time, plus
pay at time-and-a-half for all hours devoted to handling a
medical emergency. The hospital credits them with at least two
hours’ work for each emergency call even if they are back home
in less time, as they usually are. Garret Dinges and Christine
Foster asked for and were assigned first- out status. Now, in
this suit, they contend that the rewards should have been even
greater than those the hospital promised and delivered—that the
entire 14 to 16-hour on-call period should be treated as working
time, so it would produce 21 to 24 hours’ wages even if they did
not receive an emergency call. Both Dinges and Foster live
within seven minutes’ drive from the hospital; indeed, the entire
city of Tomahawk is within the seven-minute radius, so they can
and do pass the on-call time at home or at other activities in or
near the city. Mr. Dinges and Ms. Foster cannot travel outside
Tomahawk. Each has spent holidays at home rather than with
relatives and has been unable to attend weddings, family
reunions, parties, and other events. While on call, Dinges
cannot assist in operation of the family business, located 20
miles from the hospital. Hunting, fishing, boating, camping, and
other recreational activities are restricted to what is possible
near the hospital.
The hospital responds by emphasizing what EMTs can do during
on-call hours: cook; eat; sleep; read; exercise; watch TV and

2. movies; do housework; and care for pets, family, and loved ones
at home. Many things in the vicinity of home also are
compatible with first-out status. For exam- ple, Foster watches
her children participate in sports, attends dance recitals, and
goes to restaurants and parties. From a judgment for the
hospital, the plain- tiffs appealed.]
EASTERBROOK, C. J....
Working more than 40 hours per week draws pre- mium pay
under the Fair Labor Standards Act, 29 U.S.C. sec. 207. Should
hours spent “on call” be treated as work? According to the
Supreme Court, the answer depends on whether one has been
“engaged to wait” or is “waiting to be engaged.” Compare
Armour & Co. v. Wantock, 323 U.S. 126 (1944), with Skidmore
v. Swift & Co., 323 U.S. 134 (1944). That evocative distinction
rarely decides a concrete case; on-call time readily can be
characterized either way. For most purposes it is best to ask
what the employee can do during on-call periods. Can the time
be devoted to the ordinary activities of private life? If so, it is
not “work.” Even a functional approach produces close calls,
however; this is one.
An employee who is not required to remain on the employer’s
premises but is merely required to leave word at home or with
company officials where he or she may be reached is not
working while on call. Time spent at home on call may or may
not be compensable depending on whether the restrictions
placed on the employee preclude using the time for personal
pursuits. Where, for example, a firefighter has returned home
after the shift, with the understanding that he or she is expected
to return to work in the event of an emergency in the night, such
time spent at home is normally not compensable. On the other
hand, where the conditions placed on the employee’s activities
are so restrictive that the employee cannot use the time
effectively for personal pursuits, such time spent on call is
compensable.
29 C.F.R. sec. 553.221 (d). See Auer v. Robbins, 117 S. Ct. 905
(1997) (courts should defer to the Secretary’s definitions of

3. terms). The regulatory question is whether the employee can
“use the time effectively for personal pursuits”—not for all
personal pursuits, but for many. But then there is that weasel
word “effectively.” An employee who can remain at home while
on call, but is called away every few hours, can’t use the time
“effectively” for sleeping, and probably not for many other
activities. Plaintiffs, however, experience less than a 50%
chance that there will be any call in a 14- to 16-hour period, so
their time may be used effectively for sleeping, eating, and
many other activities at home and around Tomahawk. (Over 338
on-call periods, Dinges had 184 pass without a call. Thus
Dinges responded to at least one call only 46% of the time.
Foster’s experience was similar.)....
.. Although the FLSA overrides contracts, in close cases it
makes sense to let private arrangements endure—for the less
flexible statutory approach has the potential to make everyone
worse off. Suppose we were to hold that time the EMTs spend
on call counts as “work.” That would produce a windfall for
Dinges and Foster today, but it would lead the Hospital to
modify its practices tomorrow. If the EMTs are “working” 24
hours a day, then the Hos- pital will abolish the on-call system
and have EMTs on its premises 24 hours a day, likely hiring
addi- tional EMTs so that it can limit the premium pay for
overtime. This is what St. Mary’s already has done at its
hospital in Rhinelander, Wisconsin. The Hospital will pay more
in the process, but EMTs such as Dinges and Foster will receive
less, spend more time at the Hospital (and less at home), or
both. Ambulatory statutory and regulatory language permits
labor and management to structure their reg- ulations so that
each side gains. That is what the Hospital has done in
Tomahawk, and we do not think the FLSA compels a different
arrangement.
Affirmed.
Case Questions
1. What test does the Secretary of Labor’s regulations apply in
determining whether on-call status is compensable work time?

4. 2. Explain what the court means when it refers to “that weasel
word ‘effectively.’”
3. Does the court speculate on a possible management response
should the on-call period be deemed “work” under the FLSA?
SECTION 18:2 PLANT CLOSING LAWS: THE WARN ACT
All areas of the United States have experienced the closing of
manufacturing facilities in recent years. Often these closings
were the result of decisions made by large corporations, which
believed that moving to new facilities in other areas of the
country or in foreign countries was more economically
advantageous than remaining in their older, unprofitable (or less
profitable) facilities. Some argue that such decisions, which
were made solely by looking at “private” costs and benefits to
the firms, ignored the “external” costs to the community, such
as worker unemployment, economic hardships on community
businesses and others, decreases in tax revenues of the
community, the loss of real estate values in the community, and
numerous significant social costs. These individuals advocate
laws to restrict plant closings. Others argue that to impose
restrictions on plant closings would inhibit the economy’s
ability to grow and apply new manufacturing technology and
would inhibit businesses’ ability to be efficient producers in
today’s worldwide marketplace.
Mass layoffs occur throughout the country when employers
decide to eliminate a shift or otherwise cut back production or
business activity at a facility for eco- nomic reasons.
In 1978, Congress enacted the Worker Adjustment and
Retraining Act (WARN Act) to deal with plant closings and
mass layoffs.23 It requires employers that have 100 or more
employees to give a 60-day notice of a plant closing if 50 or
more workers at one site are to lose their jobs. A mass-layoff
provision of the law requires a 60-day notice of layoffs to
affected workers if the affected workers make up at least 33
percent of the workforce at the site (with a minimum of 50
affected workers).24 If 500 or more employees are to be laid

5. off, notice is required regardless of the percentage of the
workforce to be laid off at the site. In United Food and
Commercial Workers v. Brown Shoe Co.,25 the Supreme Court
held that a union has standing to bring a WARN Act lawsuit
against an employer on behalf of its workers. This decision
revived a lawsuit against the shoe company based on the union’s
belief that the employer had already begun the layoff of workers
at a plant it was closing before giving the union the closing
notice required by the Act.
privileges and conditions changed dramatically. Her job
position seemed to be in constant jeopardy of elimination. Her
performance ratings dropped. Jewell was hired in the Colorado
Springs office to take over some of Brown’s communication
duties, and he ultimately took over her office space. Brown
faced visceral opposition from Gan when she applied for a
promotional opportunity in the company.
CASE 18.6 CHAMBER OF COMMERCE OF THE UNITED
STATES V. WHITING
SUPREME COURT OF THE UNITED STATES, 131
S. CT. 624 (2011).
[The Legal Arizona Workers Act (LAWA) provides that the
licenses of state employers that knowingly or intentionally
employ unauthorized aliens may be, and in certain
circumstances must be, suspended or revoked. The law also
requires that all Arizona employers use E-Verify. The Chamber
of Commerce of the United States and various businesses and
civil rights organizations filed suit against those charged with
administering the Arizona law, arguing that the state law’s
license suspension and revocation provisions were preempted by
federal immigration law, and that the mandatory use of E-Verify
was impliedly preempted. The Immigration Reform and Control

6. Act makes it “unlawful for a person or other entity ... to hire, or
to recruit, or to refer for a fee, for employment in the United
States an alien knowing the alien is an unauthorized alien.”
Employers that violate this prohibition may be subject to federal
civil and criminal sanctions. IRCA in Section 1324a(h)(2), also
restricts the ability of states to combat employment of
unauthorized workers; the Act expressly preempts “any State or
local law imposing civil or criminal sanctions (other than
through licensing and similar laws) upon those who employ,
recruit or refer for a fee for employment, unauthorized aliens.”
The district court found that the IRCA did not preempt the
Arizona law because the LAWA did no more than impose
licensing conditions on businesses operating within the state;
also, Congress expressed no intent to prevent states from
making E-Verify mandatory. The Ninth Circuit and the Supreme
Court granted certiorari.]
ROBERTS, C. J. ...
I.
…. IRCA expressly preempts States from imposing “civil or
criminal sanctions” on those who employ unauthorized aliens,
“other than through licensing and similar laws.” The Arizona
law, on its face, purports to impose sanctions through licensing
laws. The state law authorizes state courts to suspend or revoke
an employer’s business licenses if that employer knowingly or
intentionally employs an unauthorized alien. The Arizona law
defines “license” as “any agency permit, certificate, approval,
registration, charter or similar form of authorization that is
required by law and that is issued by any agency for the
purposes of operating a business in” the State.... IRCA
expressly preempts some state powers dealing with the
employment of unauthorized aliens and it expressly preserves
others. We hold that Arizona’s licensing law falls well within
the confines of the authority Congress chose to leave to the
States and therefore not expressed preempted.
The Arizona law provides employers with the same

7. affirmative defense for good-faith compliance with the I-9
process as does the federal law.... And both the federal and
Arizona law accord employers a rebuttable presumption of
compliance with the law when they use E-Verify to validate a
finding of employment eligibility....
License suspension and revocation are significant sanctions. But
they are typical attributes of a licensing regime. Numerous
Arizona laws provide for the suspension or revocation of
licenses for failing to comply with specified state laws. Federal
laws recognize that the authority to license includes the
authority to suspend, revoke, annul or withdraw a license.... It
makes little sense to preserve state authority to impose
sanctions through licensing, but not allow States to revoke
licenses when appropriate as one of those sanctions....
All that is required to avoid sanctions under the Legal Arizona
Workers Act is to refrain from knowingly or intentionally
violating the employment law. Employers enjoy safe harbors
from liability when they use the I-9 system and E-Verify—as
Arizona law requires them to do. The most rational path for
employers is to obey the law—both the law barring the
employment of unauthorized aliens and the law prohibiting
discrimination—and there is no reason to suppose that Arizona
employers will choose not to do so. As with any piece of
legislation, Congress did indeed seek to strike a balance among
a variety of interests when it enacted IRCA. Part of that bal-
ance, however, involved allocating authority between the
Federal Government and the States. The principle that Congress
adopted in doing so was not that the Federal Government can
impose large sanctions, and the States only small ones. IRCA
instead preserved the state authority over a particular category
of sanctions—those imposed “through licensing and similar
laws.” ...
II.
The Chamber also argues that Arizona’s requirement that
employers use the federal E-Verify system to determine whether
an employee is authorized to work is impliedly preempted. In

8. the Chamber’s view, “Congress wanted to develop a reliable and
non-burdensome system of work-authorization verification” that
could serve as an alternative to the I-9 procedures, and the use
of mandatory use of E-Verify impedes that purpose”……..
B.
Congress’s objective in authorizing the development of E-
Verify was to ensure reliability in employment authorization
verification, combat counterfeiting of identity documents, and
protect employee privacy. 8 U. S. C. §1324a(d)(2). Arizona’s
requirement that employers operating within its borders use E-
Verify in no way obstructs achieving those aims.
In fact, the Federal Government has consistently expanded and
encouraged the use of E-Verify. When E-Verify was created in
1996, it was meant to last just four years and it was made
available in only six States. IIRIRA §401 (b) and (c)(1), 110
Stat. 3009– 655 to 3009–656. Congress since has acted to
extend the E-Verify program’s existence on four separate
occasions, the most recent of which ensures the pro- gram’s
vitality through 2012. And in 2003 Congress directed the
Secretary of Homeland Security to make E-Verify available in
all 50 States. The Department of Homeland Security has even
used “billboard and radio advertisements ... to encourage
greater participation” in the E-Verify program.
The Chamber contends that “if the 49 other States followed
Arizona’s lead, the state-mandated drain on federal resources
would overwhelm the federal system and render it completely
ineffective, thereby defeating Congress’s primary objective in
establishing E-Verify.” Whatever the legal significance of that
argument, the United States does not agree with the factual
premise. According to the Department of Homeland Security,
“the E-Verify system can accommodate the increased use that
the Arizona statute and existing similar laws would create.”
And the United States notes that “[t]he government continues to
encourage more employers to participate” in E-Verify....
Because Arizona’s unauthorized alien employment law fits
within the confines of IRCA’s savings clause and does not

9. conflict with federal immigration law, the judgment of the
United States Court of Appeals for the Ninth Circuit is
affirmed.
It is so ordered.
Case Questions
1. Does the IRCA expressly preserve some state powers dealing
with the employment of unauthorized aliens from federal
preemption?
2. What was Congress’s objective in authorizing the
development of E-Verify?
3. What must an Arizona employer do to avoid sanctions under
the Legal Arizona Workers Act?
CASE STUDY 18.5 UMBARGER V. VIRGINIA
EMPLOYMENT COMMISSION
COURT OF APPEALS OF VIRGINIA, 404 S.E.2D 380 (VA CT.
APP. 1991).
[Kathy Umbarger learned that a new employee, Tim Mack, who
had no prior experience in the tire business, was hired at 40
cents per hour more than she made to do work she had
previously performed. She approached Leonard Canfield, Glenn
Roberts’ operations manager, and demanded an explanation of
the pay differential. Canfield told her that Mack was in a
different classification than she was and would possibly become
store manager someday. She responded that she did not think it
was fair and demanded a pay raise, which Canfield told her
conditions would simply not permit. At that point, Umbarger
told Can- field that she felt she was the victim of sex
discrimination and left the store. The next day she removed her
personal belongings and filed her claim for unemployment
compensation. Umbarger was disqualified from receiving
unemployment benefits based on her separation from Glenn
Roberts Tire and Recapping, Inc., and she appealed the decision
ultimately to the court of appeals.]
KOONTZ, C. J....
An individual is disqualified from receiving unemployment

10. benefits if the commission finds that individual voluntarily left
work without good cause. The corollary to that rule is that an
individual may receive unemployment benefits if the
commission finds that individual voluntarily left work with
good cause. The determination of what constitutes “good cause”
is a mixed question of law and fact, and there- fore is subject to
review on appeal. In Lee v. Virginia Employment Comm’n, 335
S.E.2d 104, 106 (1985), we considered the requirement of “good
cause” in the context of an employee who voluntarily leaves
employment and stated: “[B]efore relinquishing his employment
... the claimant must have made every effort to eliminate or
adjust with his employer the differences or conditions of which
he complains. He must take those steps that could be reasonably
expected of a person desirous of retaining his employment
before hazarding the risks of unemployment.” Id. In other
words, a claimant must take all reason- able steps to resolve his
conflicts with his employer and retain his employment before
voluntarily leaving that employment.
.. [W]hen determining whether good cause existed for a
claimant to voluntarily leave employment, the commission and
the reviewing courts must first apply an objective standard to
the reasonableness of the employment dispute and then to the
reasonableness of the employee’s efforts to resolve that dispute
before leaving the employment. In making this two-part
analysis, the claimant’s claim must be viewed from the
standpoint of a reasonable employee. “Factors that ... are
peculiar to the employee and her situation are fac- tors which
are appropriately considered as to whether good cause
existed....” Id. 382 S.E.2d at 481.
In the present case, the commission and Glenn Roberts contend
Ms. Umbarger’s evidence fails to show she had no reasonable
alternative except to quit her job....
We interpret the circuit court’s finding that Ms. Umbarger “felt
she was ... discriminated against in view of the recently hired
higher paid male employee” as a determination that she
reasonably believed she was a victim of sexual discrimination.

11. The record sup- ports such a determination. Without notifying
her or allowing her to apply, Glenn Roberts hired a male, Tim
Mack, who lacked any apparent experience in the tire business,
to fill a newly created position that entailed performing many of
her current duties. Mack’s starting salary was forty cents per
hour more than Ms. Umbarger’s salary even though she had
been employed at Glenn Roberts for nearly ten years.
Finally, she was denied a raise after Glenn Roberts recently had
offered several male employees raises. The combination of
these factors demonstrates the reasonableness of Ms.
Umbarger’s belief that she was the victim of sexual
discrimination. The determination that Ms. Umbarger
reasonably believed that she was a victim of sexual
discrimination negates an assertion that her belief was a purely
subjective perception on her part, even though she may have
erroneously held this belief. Consequently, the commission’s
finding in this case that Ms. Umbarger did not demonstrate she
was in fact discriminated against is immaterial.
Based upon the initial determination that Ms. Umbarger
reasonably believed she was being discriminated against, we
also must decide whether she took those steps that could be
reasonably expected of a person desirous of retaining her
employment. Unlike Lee, there is no evidence that Ms.
Umbarger had the benefit of an established, designated
procedure for addressing employee grievances. The evidence
shows that Glenn Roberts was owned by an out-of-state
corporation, Appalachian Tire Products, and that Mr. Canfield,
the operations manager in charge of the two Glenn Roberts
stores, was one of the top officers, if not the top officer, in
Glenn Roberts available to review Ms. Umbarger’s complaint.
Nothing in the record indicates or suggests that Appalachian
Tire Products took an active role in the management of Glenn
Roberts or in any way oversaw employee affairs. In a situation
such as this, we find, as a matter of law, that Ms. Umbarger
exhausted all reasonable alternatives within Glenn Roberts to
resolve her complaint of discrimination when she con- fronted

12. Mr. Canfield and he failed to respond to that complaint.
Based on our findings, we hold Ms. Umbarger is not
disqualified from receiving unemployment bene- fits.
Accordingly, the decision of the circuit court is reversed and the
case is remanded for entry of an order consistent with this
opinion.
Reversed and remanded.
Case Questions
1. May an individual receive unemployment bene- fits if that
individual voluntarily left work with good cause?
2. What analysis must the commission and reviewing courts
pursue in order to determine if a claimant who voluntarily
leaves employment does so for “good cause”?
3. Did Umbarger have a reasonable basis to believe she was the
victim of sex discrimination?
4. Did Umbarger make a sufficient effort to resolve the dispute
before leaving the job?