Employment Law Update. Jonathan Ingber
Knowledge check
1 If an employer monitors the location of an employee who is using a device owned by the employee, what is a potential result?A suit for invasion of privacy.A suit for defamation.An EEOC discrimination claim.A suit for repetitive stress injuries.
2 If a company is sued by a third party, an employee who has used his or her own device to conduct company businessMay be terminated.May be disciplined.May be forced to turn over the device in discovery.Will be named as a codefendant.
On or off the clock?
As referred to in chapter 1, the issue of employees working “off-the-clock” (working without recording the time and being paid for the time) is expected to be a source of a significant number of employment litigation cases originating in 2018 and 2019. A portion of that litigation may relate to BYOD policies, especially in cases in which employers lack clear policies that require employees to accurately record time worked at home, off company premises, or e-remotely.
In March 2014, a federal judge denied a motion by Dollar Tree (DT) to decertify a suit filed by between 4,000 and 6,000 current and former DT employees for violation of the employees' Fair Labor Standards Act (FLSA) rights. The suit alleges that the employees were required to work off-the-clock
when making bank deposits;
during meal periods; and
when unloading trucks, retrieving carts and boxes, and stocking inventory.
DT is alleged to have
rarely enforced its policies prohibiting off-the-clock work,
forbidden employees from writing off-the-clock work on timesheets,
caused employees not to record off-the-clock work for fear of discipline, and
imposed corporate budget constraints on employee pay that led to off-the-clock work being performed to meet operational deadlines.
The FLSA is clear: Nonexempt employees must be paid for all hours worked. If employees work before or after scheduled hours, during breaks, or while waiting for a shift change, that work must be compensated.
The lesson: Having unenforced policies in place that forbid off-the-clock work will leave an employer exposed to FLSA class-action liability to the same extent as if the employer had no policy at all.5
Countering the off-the-clock problem: Best practices
Employers must be proactive in many respects if they are to avoid ending up in Dollar Tree's position. The following are among the practices an employer should consider implementing to avoid this result:
Knowledge check
1 Which allegation was featured in the FLSA suit by current and former employees of Dollar Tree?Failure to properly record wages.Failure to compensate employees for time worked.Failure to accrue vacation compensation.Violation of the minimum wage laws.
2 An employer concerned about FLSA suits for off-the-clock work faces penalties, includingPunitive damages.Back wages.Back wages and liquidated damages.Compensatory damages.
Jesse and Laurie worked for a company that provided warehouse staff to Amazon.com throughout the United States. Their primary duties were retrieving products from shelves and packaging the products for delivery to Amazon customers. When their shifts were done, Jesse and Laurie — and all other warehouse employees—were required to remove their belts, wallets, and keys and pass through metal detectors.
Jesse and Laurie sued the staffing company, alleging that the time spent waiting in line for screening, removing personal articles, and passing through the screening process was compensable time. The judge in federal district court found that the screenings were not an integral and indispensable part of Jesse and Laurie's principal work activities, and thus the time was not compensable. The appeals court disagreed, holding that post-shift activities are integral and indispensable to the employees' primary activities if they are necessary for the principal work performed and done for the benefit of the employer.
The staffing company appealed to the Supreme Court, on which you serve as a justice. How would you decide the case? Is the time compensable or not?6
Social media: Applicant and employee rights
Following the example of California and at least 15 other states, the Illinois governor signed into law in July 2016 a bill that became effective January 1, 2017 that limits employers' rights to require or request an employee or applicant to disclose a username or password to the employer; to access personal social media in the presence of the employer; or to request or require that the employee or applicant add the employer as a “friend” or similar contact. The law also prohibits the employer from retaliating against an employee or applicant for refusing to comply with such a request, and prohibits the employer from disciplining or discharging (or threatening to do so) a noncomplying employee. The law broadly defines social media to include any electronic service or account, or electronic content including email, instant and text messages, blogs, videos, still photos, podcasts, internet profiles, and locations.
The Illinois law contains exceptions that are generally consistent with the exceptions allowed by other states. These exceptions include requiring
sharing of specific social media information reasonably believed to be relevant to an investigation of allegations of employee misconduct;
sharing of specific social media information reasonably believed to be relevant to employee violations of applicable laws or regulations;
the right of the employer to require or request an employee to disclose a username, password, or other information necessary to access an employer-issued device; and
the right of the employer to monitor employee use of an employer-issued device.
Other states are expected to pass legislation in 2019 that similarly will restrict the right of employers to obtain access to applicant or employee social media.
Job applicants would be wise to consider the following findings from a 2017 CareerBuilder survey:7
70% of employers use social media to screen job applicants
69% of employers use online search engines such as Google or Bing to research applicants
54% of employers have found social media content that caused them to not hire an applicant
As of now, no state laws prohibit employers from engaging in these types of searches — which you can see are performed by an overwhelming majority of employers. Here are a couple of cautionary points:
If the company's hiring supervisor performs the research, he or she may learn, for example, that the applicant is of a particular