Thursday, May 15, 2008
Litigators Predict Lawsuits Regarding Employee Compensation For After-Hours PDA Emails
Should employees be paid for time spent after hours reviewing business-related emails on their PDAs? The question has probably not occurred to most employers. But wage and hour class actions have been built upon lesser issues.
The general rule is that non-exempt employees must be paid for all hours worked. If an employee is “suffered or permitted” to work, even though the employer has not instructed or requested that he do so, the time is compensable working time. The rule does not depend on whether the work is performed before or after regular work hours.
Plaintiff attorneys might argue that it doesn’t matter whether the employer expected the non-exempt employees to monitor after-hours emails or whether the employees did so on their own initiative. Time was spent on work-related emails and the employees should be compensated, they would argue.
Social norms play a role. Late phone calls and meetings may be seen as an intrusion, but few see sending an after-hours email as a violation of etiquette. Add to that the seemingly irresistible impulse driving some people to constantly check emails on their PDAs. The use of some devices have been jokingly compared to crack cocaine addictions.
Attorneys in various legal forums have been discussing the topic lately. The Wall Street Journal’s Law Blog recently addressed the topic here. The topic has been discussed on other internet forms, including here and here.
So far there have been no reports of wage and hour litigation involving PDAs, but it would be prudent for employers to take precautionary measures. Some commentators recommend that employers require employees to obtain permission prior to using the PDAs after hours. Others recommend giving PDAs to exempt employees only. All would agree that employers should not ignore the issue and they ought to devise an employee policy regarding the use of PDAs.
Submitted by:
Christopher W. Olmsted
Barker Olmsted & Barnier, APLC
www.barkerolmsted.com
Friday, May 09, 2008
Week In Review (May 9, 2008)
Most Popular Federal Law Article
Auto Dealership Update: The Lawsuit Du Jour.
This might have already happened at your dealership: your payroll clerk is exasperated because the sales people are not punching their time cards. She knows that under federal law, the dealership is obligated to pay sales people their commissions or minimum wage for all hours worked, whichever is higher. But if they have low commissions and they don’t punch in and out each day, she has no way to accurately calculate their hours or their pay.
Located On: Fisher & Phillips, LLP
Most Popular State Law Article
New Jersey Supreme Court Expands Individual’s Right to Privacy.
In a case of first impression, the New Jersey Supreme Court has ruled that Internet users have a constitutional right to privacy with respect to subscriber information they provide to Internet service providers ("ISP"). The Court in New Jersey v. Shirley Reid held that law enforcement officials may obtain such information only by serving a grand jury subpoena on the ISP. This April 21, 2008, decision likely will make it more difficult to prosecute, in certain circumstances, an employee that tampers with employer information systems. The case highlights the need for employers to reexamine their policies and procedures for employee use of company information systems and the expectation of privacy of employees in the workplace.
Located On: Jackson Lewis LLP
Most Popular Headlines
Breach of office etiquette can have serious consequences
Baltimore Sun - May 06, 2008
Tuesday, May 06, 2008
U.S. Department of Labor Releases New elaws Tool To Help Employers Comply With Federal Law
On May 6, 2008, the Department of Labor issued the press release below concerning a new online tool that may be useful to determine which federal laws apply to the employer. The online tool takes the user through a series of questions regarding industry, size, geographic location, and other issues. Then the guide lists particular laws which may apply to the employer, complete with links describing posting requirements and other information regarding the applicable laws.
The U.S. Department of Labor today unveiled an elaws advisor that helps employers determine which of the department’s recordkeeping, reporting and notice requirements apply to them.
The new FirstStep Recordkeeping, Reporting and Notices elaws Advisor has been integrated into a FirstStep suite of advisors that also includes the revised and expanded FirstStep Poster Advisor and FirstStep Employment Law Overview Advisor.
“These Internet tools will make it easier for small business employers to learn about and comply with the federal laws that apply to them,” said Secretary of Labor Elaine L. Chao.
The elaws advisors are free, Web-based tools designed to help employers and workers understand the department’s major employment laws. By asking a series of questions, the advisors simulate a conversation with a Department of Labor expert and guide users to customized information explaining the requirements of each law.
By asking questions such as size of business, location and type of industry through multiple choice or yes and no questions, the FirstStep Employment Law Overview Advisor determines which federal employment laws apply to each user. The advisor then provides information from the Labor Department’s Employment Law Guide on the basic provisions of these laws.
The new FirstStep Recordkeeping, Reporting and Notices Advisor summarizes the paperwork requirements for each law. The FirstStep Poster Advisor, which can be used to download and print off Labor Department posters for free, was revised to include information on where the posters must be displayed in the workplace, and what size and language requirements apply to each.
This suite of FirstStep elaws advisors is available at www.dol.gov/elaws/firststep.
The department offers more than 25 other elaws advisors covering a wide range of employment law topics, such as minimum wage and overtime, child labor, veterans’ workplace rights, health and retirement benefits, and workplace safety and health. For more information, visit www.dol.gov/elaws.
Submitted by:
Christopher W. Olmsted
Barker Olmsted & Barnier, APLC
www.barkerolmsted.com
Friday, May 02, 2008
Week In Review (May 2, 2008)
Most Popular Federal Law Article
Second Circuit Permits Title VII Claim Based on Association to Proceed.
The Second Circuit recently reversed a trial court’s decision granting summary judgment in favor of an employer, holding that an employer may violate Title VII if it takes action against an employee because of the employee’s association with a person of another race. See Holcomb v. Iona College (April 1, 2007). In this case, Holcomb, who is white, claimed the college discharged him from his job as an assistant basketball coach because he was married to a black woman. The college claimed he was discharged as part of an overhaul of its staff in an effort to improve a poorly performing basketball team.
Located On: Ford & Harrison LLP
Most Popular State Law Article
New Leave Law in Washington Benefits Military Families.
Washington’s new leave law allows an employee whose spouse is a member of the United States Armed Forces, National Guard, or Reserves to take up to 15 days of unpaid leave while his or her spouse is on leave from deployment, or before and up to deployment, during times of military conflict declared by the President or Congress. The new law, effective June 12, 2008, applies to all public and private employers. Eligible employees are entitled to the 15 days of leave for each deployment of the military spouse.
Located On: Jackson Lewis LLP
Most Popular Headlines
What nobody tells you about . . . the workplace
York Daily Record - April 29, 2008
Friday, April 25, 2008
Week In Review (April 25, 2008)
Most Popular Federal Law Article
Workers Tell Future President: “Decrease Outsourcing, Increase Living Wage”.
Americans overwhelmingly want their next President to prioritize improving their standard of living, providing universal healthcare, and slowing the outsourcing of jobs overseas rather than making it easier for immigrants to live and work in the U.S., according to the latest “America At Work” national opinion survey by the non-partisan Employment Law Alliance (ELA).
Located On: Vedder Price
Most Popular State Law Article
New Jersey Set to Become the Third State with Paid Family Leave.
After years of legislative effort and opposition from employers, both houses of the New Jersey Legislature have now passed a bill under which employees would be entitled to paid “family temporary disability leave.” Governor Jon Corzine is expected to sign the bill,1 making New Jersey the third state, along with California and Washington, to enact such legislation.
Located On: Buchanan Ingersoll & Rooney PC
Most Popular Headlines
Nine questions to ask your boss
CNN - April 22, 2008
Tuesday, April 22, 2008
25% Higher Civil Fines Against Employers for Immigration Violations
The hot political debate over immigration reform may have cooled some since last year, but employers need to remain vigilant. U.S. Attorney General Michael Mukasey recently announced higher civil fines against employers who violate federal immigration laws.
The announcement in late February was made in a joint briefing with Secretary of Homeland Security Michael Chertoff about newly enacted border security reforms put in place by the Departments of Justice and Homeland Security. Under the new rule, which was approved by Attorney General Mukasey and Secretary Chertoff, civil fines will increase 25%, or by as much as $5,000. According to a DOJ press release, the new rule takes effect on March 27, 2008, and will be published in the Federal Register in the near future.
Under the Immigration and Nationality Act, employers who violate employment eligibility requirements are subject to civil monetary penalties. Employers may be fined under the Act for knowingly employing unauthorized aliens or for other violations, including failure to comply with the requirements relating to employment eligibility verification forms, wrongful discrimination against job applicants or employees on the basis of nationality or citizenship, and immigration-related document fraud.
Of more concern to employers is the fact that Immigration and Customs Enforcement (ICE) has dramatically increased the amounts of criminal fines and forfeiture over previous years of administrative fines alone. ICE reports that during the three quarters of FY 2007 alone, ICE has obtained criminal fines, restitutions, and civil judgments in excess of $30 million.
Friday, April 18, 2008
Week in Review (April 18, 2008)
Most Popular Federal Law Article
Sprint/United Management Co. v. Mendelsohn
In a unanimous decision on February 26, 2008, in the case Sprint/United Management Company v. Mendelsohn, the United States Supreme Court held that a trial court can permit a plaintiff employee to introduce evidence that other employees have also experienced discrimination, provided that the testimony—also known as “me too” evidence—is relevant to the case and its probative value is not substantially outweighed by the danger of its prejudicial effect before the jury. In so ruling, the Supreme Court clarified that “me too” evidence is neither per se admissible nor per se inadmissible but, rather, the trial court must make a determination weighing the evidence’s relevance, probative value, and prejudicial effect.
Located On: Baker Hostetler LLP
Most Popular State Law Article
District of Columbia Council Passes Sick Leave Legislation.
Recently, the District of Columbia City Council passed legislation requiring employers to provide paid sick leave to District of Columbia employees for illness and absences associated with domestic violence or sexual abuse. With the passage of the Accrued Sick and Safe Leave Act, the District becomes the second municipality to require paid sick leave for employees, including public employees employed by the City.
Located On: Baker Hostetler LLP
Most Popular Headlines
Five lies we all tell at work
CNN International - April 17, 2008
Tuesday, April 15, 2008
Compliance Review: Employee Computer Use Policies
Employers often encounter instances of employee misuse of computers and other technology. A common response is to monitor employee computer use. However, issues of employee privacy rights and fairness are in play. When developing a policy, here are some considerations:
Give advance notice to employee about employer’s policy. To avoid invasion of privacy claims, warn employees in advance that the company reserves the right to monitor usage. Consider using an employee handbook disclosure or other signed acknowledgment
Specific terms to consider include:
Business use only, or a more flexible variation allowing some personal use.
No pornographic or other inappropriate websites.
Company not liable for disclosure/misuse of personal information transmitted by employee over company technology.
Employer may access and monitor email and internet use at any time without notice.
Employer will keep copies of internet or email passwords, and that the existence of such passwords is not an assurance of the confidentiality of the communications.
An effective computer use policy will communicate the employer’s expectations, limit privacy rights, and give employees advance warning of the consequences of violations. As with any other employee policy, review with counsel for legal compliance is prudent.
Friday, April 04, 2008
Week In Review (April 4, 2008)
Most Popular Federal Law Article
U. S. Supreme Court Affirms EEOC Medicare Coordination Ruling.
In a closely watched case, the United States Supreme Court has refused the AARP’s request for review of the Third Circuit Court of Appeals’ decision in AARP v. EEOC, thereby affirming the EEOC’s ability to exempt from the age discrimination statutes the coordination of retiree health benefits with Medicare. This ruling clears the way for employers to design retiree health benefit plans that feature coordination of these benefits.
Located On: Littler Mendelson, P.C.
Most Popular State Law Article
Resident Managers Not Entitled to On-Call Time, California Appellate Court Rules.
In a case for alleged unpaid wages, the California Court of Appeal has held that on-call resident managers of an elderly housing complex are entitled to compensation only for time spent actually performing assigned duties and not for all time spent on call. Isner v. Falkenberg/Gilliam Associates, B195860 (Cal. Ct. App. Mar. 18, 2008). Although the plaintiffs were required to remain on the premises while on call, they were otherwise free to use on-call time as they chose. Following their retirement, the plaintiffs filed a class action on behalf of resident managers to recover wages for all time spent on call. The employer moved for summary judgment, which the trial court granted. The appellate court affirmed.
Located On: Jackson Lewis LLP
Most Popular Headlines
Ten Pet Peeves About Workplace E-mails
Small Business Computing - April 01, 2008
Friday, March 28, 2008
Week In Review (March 28, 2008)
Most Popular Federal Law Article
Employer Immigration Alert - H-1B Visas.
Employers—please note that all petitions for new H-1B visas should be fi led with the U.S. Citizenship and Immigration Service ("USCIS") on APRIL 1, 2008 to ensure that they have a chance of being adjudicated. As you know, the U.S. government limits the number of new H-1B visas for professionals to 65,000 each year, with limited exceptions. Last year, 124,000 H-1B petitions were received between April 1 and April 3, forcing USCIS to develop a lottery selection process to determine which petitions would be adjudicated.
Located On: Vedder Price
Most Popular State Law Article
Georgia Court of Appeals Reiterates Narrow Scope of Non-Solicitation Clauses.
In a recent opinion, the Georgia Court of Appeals reversed a trial court’s decision to uphold the validity of non-solicitation and non-compete clauses in an employment agreement. The appellate court’s reversal of the trial court decision was premised on a strict reading of Georgia case law that delineates the permissible scope of non-solicitation clauses.
Located On: Ford & Harrison LLP
Most Popular Headlines
Here’s why young folks leave jobs
Post and Courier - March 24, 2008
Friday, March 21, 2008
Week In Review (March 21, 2008)
Most Popular Federal Law Article
Lawyers as Employers- Part 1.
Lawyers are focused on the demands of practicing law and running their practices. Often, they do not have time to dedicate to managing their employees. And, in fact, some lawyers may not see themselves as employers. However, the success of any business, including law firms, is tied directly to its employees. Competent and professional employees are critical to a firm’s ability to produce quality work and keep good clients.
Located On: Nexsen Pruet
Most Popular State Law Article
Indiana Joins the List of States Providing Legal Protections to Nursing Mothers At the Workplace.
Returning to work is often cited as one of the main reasons that nursing mothers discontinue breastfeeding. Now, a growing number of states - in recognition of the health benefits of breastfeeding for the nursing mother and child - have passed specific laws giving nursing mothers the right to breastfeed and/or express breast milk in the workplace. In the past year alone, the following jurisdictions became breastfeeding-friendly for working mothers: the District of Columbia, Montana (public employers only), New Mexico, New York, and Oregon. Wyoming and Arkansas passed general laws in 2007 stating that a mother has a right to breastfeed an infant child in any public places where the mother may legally be or where others are present, which does not expressly specify, but could be interpreted to include, places of employment.
Located On: Littler Mendelson, P.C.
Most Popular Headlines
10+ things you should do when you resign
Friday, March 07, 2008
Week In Review (March 6, 2008)
Most Popular Federal Law Article
LaRue v. DeWolff, Boberg & Assoc. Supreme Court Establishes Fiduciary Liability in the Context of Individual Account Plans.
Last week, the United States Supreme Court expanded the remedies available for fiduciary breach claims brought under ERISA, the Employee Retirement Income Security Act of 1974, as amended. Under a long-standing decision (Massachusetts Mutual Life Ins. Co. v. Russell), any relief granted for fiduciary breach was required to benefit the entire plan, rather than an individual participant. In the context of investment-related breaches, the “entire plan” rule effectively limited fiduciary claims to defined benefit and similar insurance plans, under which all benefits are funded from a common asset pool. In LaRue v. DeWolff, Boberg & Assoc., the Supreme Court for the first time acknowledged the current preponderance of defined contribution or individual account plans, such as 401(k) plans. The Court concluded that the “entire plan” rule should not be construed to preclude relief for fiduciary breach when a participant’s “plan” is effectively an account balance. Citing ERISA Section 404(c) as support, the Court noted that Congress must have intended fiduciaries of individual account plans to be liable for breach in the investment context.
Located On: Phelps Dunbar LLP
Most Popular State Law Article
New York’s Highest Court Addresses Mandatory Service Charges.
According to New York state’s highest court, under the state’s wage and hour law, an employer cannot withhold from its employees any portion of a mandatory service charge that is added to a customer’s bill unless the employer makes it clear to the customer that it is retaining some or all of the charge.
Located On: Ford & Harrison LLP
Most Popular Headlines
Want a Better Job or Higher Salary? Live Here
ABC News - March 03, 2008
Friday, February 29, 2008
Week In Review (February 29, 2008)
Most Popular Federal Law Article
Supreme Court Holds that FAA Overrides Conflicting State Law Jurisdictional Provision.
Citing the national policy favoring arbitration established in the Federal Arbitration Act (FAA) and Southland Corp. v. Keating, the U.S. Supreme Court has ruled that the contractual agreement to arbitrate disputes preempts contrary state law frameworks. Writing for the Court in Preston v. Ferrer, decided on February 20, 2008, Justice Ginsberg held that the FAA overrides state laws that would lodge primary jurisdiction in another forum beside arbitration, regardless of whether that forum is judicial or administrative.
Located On: Ford & Harrison LLP
Most Popular State Law Article
Employers May Fire Employees for Marijuana Use Despite California’s Compassionate Use Act.
A recent ruling by the California Supreme Court in Ross v. RagingWire Telecommunications, Inc. makes clear that California’s Compassionate Use Act of 1996, a passed voter initiative which provides a person using marijuana for medicinal purposes with a defense to certain state criminal charges, does not prohibit an employer from firing an employee for marijuana use.
Located On: Cooley Godward Kronish LLP.
Most Popular Headlines
Dealing with workplace conflict
CNet News Blog - February 25, 2008
Friday, February 22, 2008
Week In Review (February 22, 2008)
Most Popular Federal Law Article
Expansion of FMLA Leave for Families of Service Members.
President Bush has signed the first amendment of the FMLA since Congress passed the original law in 1993. As initially drafted, the FMLA requires employers of more than 50 employees to approve unpaid leave for employees. The terms of FMLA leave include up to 12 weeks of time off for eligible employees to care for themselves or a family member’s serious health condition.
Located On: Shaw Valenza LLP
Most Popular State Law Article
California Court of Appeal Expands the Administrative Exemption Under the New Wage Orders.
In a victory for California employers, a California Court of Appeal recently rejected the traditional administrative/production dichotomy test for an administrative exempt employee for certain business models. In Combs v. Skyriver Communications, Inc. (2/7/08), the Court of Appeal affirmed the trial court’s decision dismissing the employee’s claims for overtime, unpaid meal period penalties and unpaid rest period penalties because the employee was properly classified as an administrative exempt employee. Importantly, the Court of Appeal relied heavily upon the recent changes to the Industrial Welfare Commission’s Wage Order No. 4-2001 in determining that the employee was an administrative exempt employee and, therefore, not entitled to overtime, meal periods or rest periods.
Located On: Ford & Harrison LLP
Most Popular Headlines
The big discrimination case before the Supreme Court.
Slate - February 18, 2008
Friday, February 15, 2008
Week In Review (February 15, 2008)
Most Popular Federal Law Article
Appeals Court Says Company Policy Restricting Overtime Does Not Trump Compensation Obligations.
A federal appeals court in New York has ruled that the Fair Labor Standards Act ("FLSA") requires employers to pay one-and-a-half times the regular rate of pay as compensation to employees who perform overtime work even though the work was not authorized and was in violation of company policy. The case, Chao v. Gotham Registry, Inc., No. 06-2432-cv (2d Cir. Jan. 24, 2008), dates back to 1992 when the Secretary of Labor sued Gotham Registry, Inc. ("Gotham"), a staffing agency, for not paying overtime wages to the nurses it employed.
Located On: Jackson Lewis LLP
Most Popular State Law Article
California Employers Not Required To Accommodate Medical Marijuana Users.
The California Supreme Court recently rejected a lawsuit brought by an employee who was terminated shortly after his employer learned that he had tested positive for marijuana. According to the court, employers have the right to conduct preemployment drug tests and to fire, or refuse to hire, individuals who test positive for illegal drugs – even if they are used for medicinal purposes. Ross v. RagingWire Telecommunications, Inc., No. S138130, California Supreme Court (January 24, 2008).
Located On: Ogletree Deakins
Most Popular Headlines
Handling tricky questions in a job interview
Baltimore Sun - February 11, 2008
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