The legal implications of employee tracking devices

Photo by N. on Unsplash

I once knew of company (not a client) at which its CEO would sit in his office all day and watch a bank of monitors connected to cameras all over the workplace so that he could track the productivity of his employees. He even had one outside the bathrooms to record how frequently, and for how long, his employees were taking potty breaks. Needless to say, morale among his employees was not great.

Monitoring of employees has gone even more high tech. The Chicago Tribune reports that Amazon has developed wristbands to track worker hand movements as they fill and ship orders in its warehouses and distribution centers.

When does telecommuting qualify as a reasonable accommodation?

I’m writing today’s post from the comfort of the kitchen island in my house. My son has the flu, and I’m working from home.

It’s been three years since the 6th Circuit decided EEOC v. Ford Motor Co., a groundbreaking decision in which the court issued its en banc decision declaring that telecommuting is not an appropriate reasonable accommodation, unless the employee can show that that regular attendance in the workplace, and face-to-face interaction with co-workers, are not essential elements of the employee’s job. 

Yesterday, the same court decided Mosby-Meachem v. Memphis Light, Gas & Water Division [pdf], which defined the parameters of when an employee’s job does qualify for remote work as a reasonable accommodation.

No, you do not need a workplace emoji policy

I read a blog yesterday that asked the following question? “Do you need a workplace emoji policy?”

They say yes, I say an unequivocal no.

How much wasted work-time is too much?

According to a recent survey conducted by OfficeTeam, on average, employees spend 8 hours per workweek on non-work activities.

What does this non-work time look like?

Diversity is not an ideology

By now, you’ve likely heard about the male Google employee (James Damore) who circulated within the company a 10-page memo entitled, “Google’s Ideological Echo Chamber.” In this memo, he critiqued Google’s efforts at maintaining gender diversity within the ranks of its employees, arguing that women are underrepresented in tech not because of workplaces biases and discrimination, but because of inherent psychological differences between the sexes.

Avoid “FLSA roshambo” to win off-the-clock overtime claims

Defending claims for off-the-clock work is one of the most difficult tasks employers face under the Fair Labor Standards Act. An employee (or worse, group of employees) says, “I (we) worked, without compensation, before our shift, after our shift, or during our lunch; pay me (us).” Often, these employees have their own personal, detailed logs supporting their claims. And the employer has bupkis. It then must prove a negative (“You weren’t really working when you say you were”), which places the employer in a difficult and often unwinnable position. It’s a wage-and-hour game of rock-paper-scissors, where paper always beats air.

When we last examined Allen v. City of Chicago—a case in which a class of Chicago police officers claimed their employer owed them unpaid overtime for their time spent reading emails off-duty on their smartphones—an Illinois federal court had dismissed the claims, holding that most of the emails were incidental and non-essential to the officers’ work, and, regardless, the employer lacked specific knowledge of non-compensated off-duty work.

Last week—in what is believed to be the first, and only, federal appellate court decision on whether an employer owes non-exempt employees overtime for time spent off-duty reading emails on a smartphone—the 7th Circuit affirmed [pdf].

Would you let your employer microchip you?

Our family dog, Loula, is microchipped. Our vet offered it to us as a service when Loula first joined our family. It provides some peace of mind in the sad event that Loula goes missing and ends up in a shelter or vet office. They would be able to read the rice-grain RFID chip embedded in her leg, discover that she belonged to us, and return her.

Loula, however, is a dog, she’s not an employee. Which is why I’m troubled that a Wisconsin employer has decided to offer microchip implants as a “service” to its employees.

NBC reignites privacy debate by requiring social-media passwords of job applicants

“Those who cannot remember the past are condemned to repeat it.”  (George Santayana)

It’s been eight long years since Bozeman, Montana, set the internet on fire by requiring that job applicants for municipal positions turn over passwords to their personal social media accounts as part of the application process. In the wake of that story, states rushed to introduce legislation prohibiting this practice; many succeeded. And, the story more or less died.

Thank you, NBC, for reigniting it.

10 key elements of any data security policy to safeguard your company

Yesterday, I told you that small businesses (less than 250 employees) suffered 31 percent of last year’s cyberattacks. What can you do to best protect your business (of any size) to repel an attack? Let me introduce you to the Data Security Policy, an essential component of any employee handbook now, and likely forever.

What should an effective Data Security Policy contain? Consider 1) consulting with a knowledgeable cybersecurity attorney; and 2) including these 10 components (c/o me, Travelers, and the U.S. Small Business Association):

As sure as today is Cyber Monday, your employees are shopping from work

Today is Cyber Monday, the biggest online shopping day of the holiday season. In fact, it is estimated that today will be the biggest online shopping day ever, with over $3.36 billion in sales.

And, guess what? Given that most of those doing the shopping will be spending the majority of their prime shopping hours at work, from where do you think they will be making most of their Cyber Monday purchases.

Consider these statistics, pulled from CareerBuilder’s 2016 Cyber Monday Survey:

The newest threat to your cybersecurity? Your lunchroom appliances

Dinner is always a bit of cluster in my house. We are a home of two working parents, and, with music lessons and band rehearsals three nights a week, it seems that we are always scrambling for our evening meal. More often than not, we end up eating out, which is neither good for our wallets nor our waistlines.

Is social recruiting discriminatory?

Yesterday, I noted that the EEOC is examining the impact of “big data” on how employers reach employment decisions.

Looking at an issue and doing something about it, however, are two entirely different animals. I wonder what business the EEOC has looking at this issue at all. The EEOC’s mission is to eliminate discrimination from the workplace. Certainly, there is no claim that neutral data points intentionally or invidiously discriminate based on protected classes.

For God’s sake, think before you email

I have lots of readers. Thousands upon thousands. Do you know who doesn’t read my blog, however? Former DNC Chair (and Congresswoman) Debbie Wasserman Schultz. How do I know? Because, if she does, she would have read this:

Who knows what evil lurks in the hearts of public Wi-Fi?

According to Politico, an IT company set up various fake Wi-Fi networks around the RNC with names such as “Google Starbucks”, “I vote Trump! free Internet”, and “I vote Hillary! free Internet”. The goal was to see how many people would join the unsecured networks. The answer: 1,200, with 68 percent compromising the information on their devices.

“I use public Wi-Fi all the time,” you say. “After all, wireless data is expensive. What’s the harm in using a public network?”

Watch this video, and then let’s chat about how to discuss this important security issue with your employees.

Do you understand your state’s wiretap law?

Here’s one you don’t see everyday. According to ESPN, the Los Angeles Lakers are peeved at one of their teammates, rookie D’Angelo Russell. So far, no big deal. That is, no big deal until you understand the cause of the rift. I’ll let ESPN take it from here.

Sources told ESPN.com that some teammates' trust in Russell is eroding after a video surfaced in the past week that shows Russell recording a private conversation between himself and teammate Nick Young. Young does not appear to realize he is being taped. The video, which is believed to have come to light last week via the Twitter account of a celebrity gossip site, shows Russell filming Young while asking questions about Young being with other women.

Should you allow employees to shop online from work?

Today is Cyber Monday, the day online retailers promote their (alleged) deepest holiday discounts. It is estimated that more than 125 million Americans will take advantage of these sales and shop online today. And, many, if not most, of them will do so from work.

The latest available numbers suggest that more and more companies are allowing employees to shop online from work. As of 2014, 27% of employers permit unrestricted access to employees shopping online while at work, up from 16% in 2013 and 10% and 2012. Meanwhile, 42% allow online shopping but monitor for excessive use, while 30% block access to online shopping sites. Similar data is not yet available for 2015, but one can assume that these numbers have continued to trend towards greater access for employees.

Yet, just because companies allow a practice to occur does not mean it makes good business sense. Should you turn a blind eye towards you employees’ online shopping habits, not just today, but across the board? Or, should you permit more open access?

New workplace app raises old issues

At the beginning of 2015, I reported on the launch of a new app — Memo — which allowed employees to post anonymous comments or complaints about their workplaces. Microsoft has now joined the fray of workplace griping apps with one of its own, called Forum.

According to the app’s description, it “lets ideas thrive, facilitates open dialogue within organizations, and enables employees to freely express themselves.” More importantly, unlike Memo, Forum appears to be non-anonymous. From iMore: “Forum has apparently been designed primarily for businesses to give their employees a chance to speak their minds and connect with their fellow workers and executives.”
 

Be careful what you email (yes, this is a lesson I need to keep repeating)

Two USERRA posts within four days? What is this world coming to?

In Arroyo v. Volvo Group North America (7th Cir. 10/6/15), the appellate court was faced with the issue of whether the district court correctly dismissed an Army Reservist’s USERRA lawsuit. Volvo claimed that it fired LuzMaria Arroyo for violations of its attendance policy. The court, however, thought that the following emails exchanged between her supervisors suggested otherwise:

• “I find myself with a dilemma if I were to discipline a person for taking too much time off for military reserve duty…. I certainly give her credit for serving our country but of course I am also responsible for our business needs.”
• “First, we do not have to grant time off for [Arroyo’s] travel time. Her legal obligation is 2 weeks per year, which we do give off, and 1 weekend per month. The drills she attended were most likely extra training, which we do not have to grant the time. We do not have to give extra time for her travel to and from her weekend duty. She does have the option to transfer to a closer unit, we cannot make her transfer.”
• “Unfortunately, there isn’t a lot we can do…. Per the law we have to wait for her. Sorry it isn’t what you wanted to hear.” (after her deployment to Baghdad.)
• “[Arroyo] is really becoming a pain with all this.”

Beware the email chain of fools

A software engineer rejected for a job by GoDaddy is suing the company for discrimination. Why does he believe that the company discriminated against him? According to USA Today, he read it in the email chain included in his otherwise vanilla rejection email.

The e-mail…, which appears to be sent from a group titled the “GoDaddy Recruiting Team,” begins with a tame form letter, explaining that Connolly had not been selected for a job as a mobile IOS developer. But the note he said he saw below it in the e-mail chain packed an unusual punch.

It read, “about keith he’s great for the job in skills but he looks worse for wear do we really want an obeese (sic) christian? is that what our new image requires of us.”

Like many before it, GoDaddy says that either it was hacked or the email was fabricated. Some computer forensics will sort out the truth of that defense. If it turns out that the email is legit, GoDaddy might want to rethink its “we are not offering any kind of settlement or an apology” position.

Do I really need to tell you not to ever put something like “do we really want an obese Christian” in an email. Some things are better left unsaid, or, more to the point, un-typed. And, for god’s sake, please read those emails (all of them) before you click send. It makes my job a whole lot easier defending you without that smoking gun. 

And, before my employee-advocate readers get all over my case for defending one’s right to discriminate merely by keeping silent, yes, in an ideal world no one would think this way. But, my job is to defend the companies that have the misfortune of employing those that do. If GoDaddy is wrong, and one of its recruiters did send that email, then it should stand by its pronouncement that it is “proud to be an Equal Opportunity Employer” and settle, period.

Putting together the puzzle on off-duty emails and overtime

Employers, I can see the writing on the wall, and it’s not looking good for your continued reliance on your non-exempt employees using their smartphones off-the-clock.

In the past few days, this issue has picked up a ton of momentum. First, the Wall Street Journal ran an article entitled, “Can You Sue the Boss for Making You Answer Late-Night Email?” Then, the Wage & Hour Litigation Blog reported that the Department of Labor’s Wage & Hour Division announced a request for information regarding “the use of technology, including portable electronic devices, by employees away from the workplace and outside of scheduled work hours outside of scheduled work outside of scheduled work hours.” Finally, the ABA Journal reminded us that the same Wage & Hour Division will likely raise the salary floor for exemption eligibility from $23,600 a year to $50,000 a year. This significant bump in the salary test will remove a large chunk of your employees from many of the FLSA’s key overtime exemptions.

What does all this mean? It means that you need to take a long, hard, look at which of your employees you are requiring to connect when they are “off-the-clock.” If you are requiring your non-exempt employees to read and respond to emails after their work day “ends,” you need to examine whether the FLSA requires that you pay them for that time (more often than not at a 1.5 overtime premium).

I’m pretty certain that the Department of Labor consider this time compensable, but I’m not so sure. Even if reading and replying to work-related email is compensable “work,” I’m not convinced that employers should have to pay employees for it. Most messages can be read in a matter of seconds or, at most, a few short minutes. The FLSA calls such time de minimus, and does not require compensation for it. “Insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded.” Think of the administrative nightmare if an HR or payroll department has to track, record, and pay for each and every fraction of a minute an employee spends reading an email.

Nevertheless, if you want to eliminate the risk over this issue, I suggest you consider a couple of steps:

1. Audit all of your employees for their exempt status. This audit will ensure that you have your employees properly classified as exempt versus non-exempt.
2. Consider implementing an email curfew for your non-exempt employees (which has its own pros and cons).

This issue is not going away any time soon, and illustrates the difficulty the law has keeping up with the stunning pace of technology.

For more on this important issue, I recommend Just how nervous should companies be about FLSA lawsuits over employee smartphone use? (Hint: very) via Eric Meyer’s Employer Handbook Blog.