Overtime pay for reading emails

More than a year ago I asked the question, "Is time spent outside the office e-mailing from a Blackberry compensable under the Fair Labor Standards Act?" According to yesterday's New York Times, writers for ABC News are asking the same question.

BlackBerrys blur the lines between work and play. A recent dispute at ABC News asked: at what point does checking e-mail after hours constitute working overtime?

Several weeks ago, ABC’s news division presented three new writers with a waiver stating that they would not be compensated for checking their company-issued BlackBerrys after office hours. The waiver prompted some concern, leading ABC to take the BlackBerrys away from the three writers the week of June 9.

Before deciding whether time spent checking emails off-hours is compensable, several questions must be answered:

1. How much time is spent? The FLSA permits employers to disregard and not pay employees for off-hours de minimis time. Time is considered de minimis if it is insubstantial or insignificant, cannot as a practical administrative matter be precisely recorded for payroll purposes, is no more than a few minutes in duration, and where the failure to count such time is justified by industrial realities.
2. Is the employee checking emails of his or her choice, or is the employee essentially expected to be on-call 24/7?
3. Does the employer require the employee to carry a PDA or Blackberry, or does the employee choose to do so as a matter of personal convenience?

The safest course of action for employers is to provide PDAs only to exempt employees. But, if companies are going to provide PDAs to non-exempt employees, they should have a policy in place stating that employees who check emails off-the-clock do so of their own choice, and that the time spent will not be compensated. Of course, such a policy is not foolproof, and businesses who make it possible for employees to remain connected off-duty will have to take the risk that the time might count as hours worked.

My take is that most emailing should meet the test for de minimis time. Checking an email takes at most only a few moments, and it would create an administrative nightmare for companies to have to track this time for pay purposes. While I am not aware of any cases discussing this issue, it is only a matter of time before we get some judicial guidance for companies that provide PDAs to non-exempt workers. In the meantime, this debate remains academic, albeit with significant real-world implications.

Two new ways to search the blogosphere go live

It's easy to get lost in the blogosphere. There are thousands of lawyers publishing blogs, and new blawgs launch everyday, each elbowing each other for room in an increasingly more crowded market.

Two services have recently launched to help keep it all straight. LexMonitor strives to be a comprehensive database of every blawg. It's organized by category, author, and tags, and is updated as frequently as blogs update their feeds. It touts itself as "a free daily review of law blogs and journals highlighting prominent legal discussion and the lawyers and other professionals participating in this conversation." It launched last Friday, and on my initial review over the weekend, I have to say I'm impressed so far, in its organization, scope, and what it hopes to achieve.

Law.alltop.com has been around a little longer. It thinks of itself as the “digital magazine rack” of the Internet. It imports the last five posts from the blogs it lists. It is not trying to catalogue every piece of information out there, but to provide a representative sample of the best of the blogosphere.

Because alltop.com is more selective in its listings than LexMonitor, it may be a less intimidating starting point for those starting out searching legal blogs. LexMonitor, however, is an ambitious project, and has real potential to become the portal for those searching for up to the minute legal information.

Because I'm listed on both services, I'm happy to plug them both. It's because I think that they each offer something of real value that I'm also happy to recommend them.

Court limits employers' access to employee text-messages

It is generally understood that employers have the right to read employees' emails sent and received through the corporate email system. The system is owned and operated by the employer, and employees should have no expectation that such communications are private.

What about electronic communications that are not stored on an employer's server - for example, text messages from mobile devices? Can an employer legitimately intercept those communications without the employee's consent? According to the 9th Circuit in Quon v. Arch Wireless, the answer might be no. For those who want more information, Workplace Privacy Counsel has the details.

The bottom line for companies is that Internet Service Providers, text messages services, and online email services (such as Yahoo or Gmail) are prohibited from disclosing stored messages without the consent of the sender or the recipient. This ruling, however, should not affect an employer's ability to control its own property, such as cell phones or computers that it owns and provides to employees to use. The key is for companies to have clearly written electronic communications policies that spell out the expectations, and make it clear to employees that they have no expectation of privacy in the use of any corporate-issued equipment.

What I'm reading this week #36

We'll start this week's review with a couple of posts on firing employees. The Business of Management asks - is there ever a good time to fire someone? Meanwhile, The HR Capitalist gives us some tips on what to say to an employee after you make the termination decision.

Workplace Horizons gives us another update on the revamped ADA Restoration Act, and reports that a compromise is closer to being worked out.

The Word on Employment Law reminds us that fairness definitely matters when dealing with employees.

The Delaware Employment Law Blog (with a spiffy new design) talks about respectful workplace policies.

Finally, the Pennsylvania Labor & Employment Blog, as part of its series on resources for HR generalists, advises that it's a good idea to pay employees' final paychecks on time to avoid legal trouble.

Employers go 2 out of 4 at the Supreme Court today

The Supreme Court this morning released a quartet of opinions that impact employers. Continuing this Court's somewhat surprising trend, the employer came out on the winning end of only half of these cases.

In MetLife v. Glenn, the Court ruled that the fact that a claim administrator of an ERISA plan also funds the plan benefits is a "conflict of interest" that must be weighed in a judicial review of the administrator's benefit determination. I have always been troubled by benefit plans that both pay benefits and make the decision whether to pay. To the extent that such plans will no longer have the protection of the arbitrary and capricious standard upon judicial review of their decisions, I applaud the Court's decision.

In Kentucky Retirement Systems v. EEOC, the Court ruled that a benefit plan's use of age as a potential factor in the distribution of retirement benefits to disabled workers does not establish a prima facie case of age discrimination. For the background on this case, see Supreme Court considers use of age as factor in disability retirement benefits. I think the Court got it partially right. It seems to me that retirement eligibility is a proxy for age, but the employer in this case did not use the factor arbitrarily or discriminatorily.

In Meacham v. Knolls Atomic Power Laboratory, the Court ruled that when an employee alleges disparate impact under the ADEA, the employer bears the burden of persuasion on the "reasonable factors other than age" defense. Again, I think the Court got this right. If the employer is raising the defense, the employer should have the burden of proving it.

Finally, in Chamber of Commerce v. Brown, the Court ruled that federal labor law prohibits state from regulating or limiting an employer's right to speak out about labor union organizing by their employees.

[Hat-tip: SCOTUSblog]

Giving "high in the sky" a whole new meaning

There are certain thinks you just don't want to think about while your sitting at the gate waiting to board a flight. One of them is the pilot in the bathroom of the 737 you are about to board doing a few lines of coke. This morning, in Gabbard v. FAA, the 6th Circuit made the friendly skies a little bit safer by affirming an arbitrator's decision that had approved the FAA's revocation of a pilot's license after he had failed a drug test.

The take-away from this case has nothing to do with airlines, drug tests, or arbitrations. Instead, this case serves as another reminder that employees can sue for any reason at any time. Gabbard could not possibly have thought he was going to have his license reinstated, especially after an arbitrator had ruled against him. Yet, he had no shame in parading his shameful conduct before the second highest court in the land. Even the most rock solid termination can end in a lawsuit. That risk, however, should not hamstring employers from taking necessary actions to rid their workplaces of bad employees, especially when good cause exists.

Clearing up some wage and hour misconceptions

The Fair Labor Standards Act has two basic requirements for non-exempt employees 18 years old and over: the payment of a minimum wage (which is currently $7 an hour in Ohio), and the payment of one and one-half times the regular rate of pay for any hours worked in excess of 40 in any work week. What's missing from this list are typical payroll practices such as vacation, holiday, severance, or sick pay; meal or rest periods; premium pay for weekend, holiday, or off-shift work; pay raises or benefits; the payment of final wages to terminated employees; and pay stubs or W-2s.
Some of these payroll practices have no provision whatsoever in any federal or state law. For example, no law requires the payment of vacation, holiday, severance, or sick pay, premium pay (except for the over-40 requirements of the FLSA), pay raises, or benefits (although ERISA regulates the latter if benefits are provided). Of course, many of these are typical in virtually all businesses. Good luck hiring or retaining any decent employees if you don't offer paid holidays and annual raises, for example.
Ohio law regulates the handling of employees final paychecks. In Ohio, paychecks must be provided no less often than semi-monthly, which means that a severed employee must be paid no later than either the 15th or the last day of the month, depending on whether the employee's last day of employment falls within the 1st half of 2nd half of the month.
The Internal Revenue Code governs the handling of W-2s. Suffice it to say that if you are paying an employee any wages during the year, you must provide that employee with a W-2, and make all the applicable withholdings on that employee's behalf.
Meal and rest periods are not required by any law. Neither federal law or Ohio law requires employers to provided employees with any breaks during the work day. Federal law, however, does provide for whether meal and rest breaks are counted as "hours worked." This distinction is important. If time is counted as "hours worked," it goes into the calculation of time worked during the work week for consideration of whether the employee has crossed the 40-hour threshold for overtime pay.
Rest periods, which are considered breaks of 20 minutes or less, are counted as hours worked whether or not the break is paid. Rest breaks are customarily paid, and if they must be counted as work hours, they might as well be paid for.
A bona fide meal period, however, is not considered hours worked. To be a bona fide meal period the employee must be totally relieved of his or her work duties. According to the Department of Labor: "The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating."
Next week, we'll delve into the mistakes employers make in the handing of rest and meal periods, which has led to a lot of wage and hour class action litigation and some huge judgments against unwary employers.