Is the FLSA anachronistic?

Earlier this week I wrote about whether employees are entitled to overtime pay for reading emails. Michael Moore (the author of the Pennsylvania Labor & Employment Blog, not the director of Roger & Me) posted a comment to my post that is so wonderful that I'm reprinting it to make sure that all of my readers see it:

The only area immune from technology is the FLSA which is stuck in the year 1938, when it was enacted. Incidentally, this is the same year that the ball point pen was invented by the Argentine-Hungarian journalist László Bíró. I wonder if the DOL sat around in 1938 wondering if employees who wrote themselves work-related “To Do” list at home might actually be engaged in compensable work time activities entitling them to overtime?... or if the invention of the ball point pen (as opposed to the clunky fountain pen) would have so dramatically reduced these efforts that it would make the time de minimis?

Michael is dead on. As our employment laws move forward, the FLSA remains stuck in the past. The FLSA was enacted in 1938 to the curb worker exploitation, boost job creation, and bring the country out of the Great Depression. Last year, I asked if the 40-hour work week is still relevant in the modern world.  Michael's comment really drives home the point that a law enacted to address workplace conditions that existed during the Depression may need to be seriously reworked to address the realities of the modern workplace.

Protected activity does not protect theft of confidential information

Let's suppose an employee opts-in to a class action lawsuit against your company. Let's also suppose after she opts-in to the class action, she believes that her supervisor begins retaliating against her by treating her poorly. As part of discovery in the class action, she provides documents to her attorneys. Those documents not only include documents that might relate to the class action and potential retaliation claim, but also confidential customer files that she believes will jog her memory about specific instances of retaliation. The employer has a Privacy Policy, a Code of Conduct, and a Conflict of Interest Policy, all of which expressly prohibit the disclosure of confidential information, including customer information. When the employer learns of the delivery of the confidential customer files, it terminates her for violating company policy.

Does the delivery of the confidential files constitute protected activity for which the employee cannot be terminated? According to the 6th Circuit in Niswander v. Cincinnati Insurance, decided yesterday, the answer is it depends, but in this case no.

First, the Court analyze the dissemination for whether it constituted "participation" in protected activity. Because the confidential documents were not relevant to her claim, the Court concluded it did not:

This is not a case of an employee mistakenly or inadvertently delivering confidential information out of a belief that the documents provided direct proof of discrimination. Instead, Niswander delivered numerous documents, some of which were copies of e-mails from her supervisors related to her job performance, but some of which were claim-file documents that included confidential personal information of insured individuals....

Our analysis would be different if the documents that Niswander had given to her lawyers, and that they in turn produced to CIC, had reasonably supported her claim of gender-based pay discrimination—or if she reasonably believed that they did.

[C]oncluding that Niswander’s conduct here is protected participation ... would provide employees with near-immunity for their actions in connection with antidiscrimination lawsuits, protecting them from disciplinary action even when they knowingly provide irrelevant, confidential information solely to jog their memory regarding instances of alleged retaliation.

The Court also analyzed whether the dissemination qualified as "opposition" to an unlawful employment practice. The Court laid out 6 factors critical to its determination as to whether the dissemination of the documents was "reasonable" and therefore worthy of protection:

1. How the documents were obtained.
2. To whom the documents were produced.
3. The content of the documents.
4. Why the documents were produced, including whether the production was in direct response to a discovery request.
5. The scope of the employer’s privacy policy.
6. The ability of the employee to preserve the evidence in a manner that does not violate the employer’s privacy policy.

The Court found that the factors generally weighed against Niswander:

Although employees deserve protection when they make reasonable attempts to preserve evidence of illegal employment practices, including discrimination and retaliation, “we are loathe [sic] to provide employees an incentive to rifle through confidential files looking for evidence that might come in handy in later litigation.” To hold in favor of Niswander would turn the opposition clause into “a license to flaunt [sic] company rules or an invitation to dishonest behavior.” (quoting O’Day v. McDonnell Douglas Helicopter Co. (9th Cir. 1996)).

This case underscores the importance for employers to have clearly written confidentiality and other policies to govern employee ethics. The disclosure of confidential materials could very well be transformed into protected activity if the employer does not take active steps to protect the documents' confidentiality.

Moreover, businesses must also act swiftly and decisively when discovering a breach of confidentiality by any employee. Separate from being smart business, consistent enforcement diffuses any claim by an employee like Niswander of pretext - that she was treated differently than employees who breached policy but who had not filed a lawsuit.

What would President Obama look like to employers?

Yesterday, Senator Barack Obama gave some insight into employment policy in his administration. RealClearPolitics has his words from a speech given in Albuquerque. The highlights:

• He will push for the passage of the Lilly Ledbetter Fair Pay Restoration Act, which will overturn Ledbetter v. Goodyear Tire & Rubber. Recall that Ledbetter held that the statute of limitations for a pay discrimination claim under Title VII begins to run when the pay-setting decision is made, and not when the employee learns of the discrimination. The Ledbetter Fair Pay Act would start the statute of limitations when the employee learns of the pay discrimination. In my view, this law would create a floating statute of limitations for pay discrimination claims, which severely undermines the important aspect of certainty that statutes of limitations provide for businesses.

• To assist working parents, he would expand the Child and Dependent Care tax credit to 50%.

• He would expand the FMLA to cover employers as small as 25 employees, to permit leave for the care of elderly parents, to allow parents 24 hours of annual leave to join school activities with their kids, and to cover employees who are victims of domestic violence or sexual assault.

• Finally, he would require employers to provide all workers with seven paid sick days a year.

It's clear from Senator Obama's words that family responsibility will be a driving force in his administration:

As the son of a single mother, I also don't accept an America that makes women choose between their kids and their careers. It's not acceptable that women are denied jobs or promotions because they've got kids at home. It's not acceptable that forty percent of working women don't have a single paid sick day. That's wrong for working parents, it's wrong for America's children, and it's not who we are as a country.

It's hard to argue against greater family leave benefits on a national scale (The Ohio Healthy Families Act is an entirely different story). As I've said before, this country lags behind most of the civilized world, and even some of the third world, in family leave benefits. Until we solve this problem legislatively, aggressive plaintiffs will continue to push for judicial solutions - such as the $2.1 million verdict against Kohl's Department Stores in Cuyahoga County last year.

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.