Your location is not the only thing an iPhone might be tracking—DOL releases wage and hour app for employees

I know I’m supposed to be on vacation, but this news is simply too amazing not to report. The Department of Labor has  launched an iPhone app to help employees track their hours worked. From the DOL’s press release:

The U.S. Department of Labor today announced the launch of its first application for smartphones, a timesheet to help employees independently track the hours they work and determine the wages they are owed. Available in English and Spanish, users conveniently can track regular work hours, break time and any overtime hours for one or more employers. Glossary, contact information and materials about wage laws are easily accessible through links to the Web pages of the department's Wage and Hour Division.

Additionally, through the app, users will be able to add comments on any information related to their work hours; view a summary of work hours in a daily, weekly and monthly format; and email the summary of work hours and gross pay as an attachment.

This new technology is significant because, instead of relying on their employers' records, workers now can keep their own records. This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.

Android and BlackBerry versions may be in the offing, as well as updates to track other wage and hour issues, such as tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials, and pay for regular days of rest.

The cure for the potential problems caused by this app would be instituting a ban on mobile devices in the workplace. Given how aggressive the NLRB has gotten with its definition of protected, concerted activity, however, I am concerned that the NLRB might consider such a policy a violation of the NLRA as a limitation on employees’ ability to complain about terms and conditions of employment.

I cannot overstate the significance of this story. The DOL is getting more and more aggressive in its willingness to help employees prosecute wage and hour violations. If you do not know whether your wage and hour practices pass muster under the Fair Labor Standards Act, you are sitting on a bomb waiting to detonate. And, the DOL continues to provide employees with the match to light the fuse.

If you own an iPhone and want to check out the app for yourself, it is available for free from iTunes.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Best of: Why employees sue

http://www.ohioemployerlawblog.com/2010/07/why-employees-sue.html

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #176 (the happy birthday to me edition)

Famous events that occurred on May 9:

• 1502: Columbus left Spain on his 4th and final trip to New World
• 1754: 1st newspaper cartoon in America—the divided snake “Join or Die”
• 1785: British inventor Joseph Bramah patents the beer-pump handle
• 1914: President Wilson proclaims Mother’s Day
• 1960: U.S. is 1st country to legalize use of the birth control pill
• 1992: Final episode of “Golden Girls” airs on NBC
• 2007: The Ohio Employer’s Law Blog debuts

Happy birthday to me on Monday. As for me, I’ll be on a much needed vacation next week, so today is the blog’s birthday (observed). I’ll be back with fresh content on May 17. In the meantime, enjoy “Best of…” next week.

Here’s the rest of what I read this week.

Social Media & Workplace Technology

• 3 common-sense social-media tips to share with your employees – from The Employer Handbook Blog
• ER Doc Forgets Patient Info is Private, Gets Fired for Facebook Overshare – from Abovethelaw.com
• Social Media in the Workplace Policies – Part 1 and Part 2 – from CPEhr
• Drafting Considerations for Social-Media Policies – from Molly DiBianca’s Delaware Employment Law Blog
• Twitter surpasses 200 million users, more than 70% are international – from Boy Genius Report
• Should You Think Twice About Recommending People On LinkedIn? – from Social Media Today
• Jumping the Gun on Employee Internet Activity – from Delaware Employment Law Blog
• Managing Employees’ Use of Personal SmartPhones and Tablets for Work – from Workplace Privacy Counsel
• Protecting Company Information Using the Computer Fraud and Abuse Act – from Michigan Employment Law Advisor
• Worlds Colliding – from LaborRelated

Discrimination

• ADA amendments means suits that would have been dismissed will get to a jury – from Work Matters
• Regarding Employee as “Paranoid” and “Irrational” Not Enough To Satisfy ADA (at least pre-ADAAA) – from Daniel Schwartz’s Connecticut Employment Law Blog
• The Power of Moving to Dismiss the “False Syllogism” Discrimination Claim – from New York Labor and Employment Law Report
• Harassment and Discrimination Policies: A “Bypass” Tip – from Michael Haberman’s Omega HR Solutions
• Quran-Burner Gets His Job Back – from Philip Miles’s Lawffice Space
• What do Will & Kate, “birthers,” and ADAAA/FMLA coordination have in common? Nothing, really. – from Employment and Labor Inside
• Second-Guessing an Employer’s Response to Harassment – from Workplace Prof Blog
• Staffing Agency Violated Pregnant Employee’s Rights, EEOC Alleges – from Joe’s HR and Benefits Blog
• Reasonable Accommodations for Sabbath Observances: What Does the Law Require? – from Labor & Employment Law Perspectives
• Extra Pounds, Lighter Paychecks and Weight Discrimination – from The Proactive Employer Blog

Employee Relations & HR

• Time to Say Goodbye – from That’s What She Said
• Michael Scott on Leadership – from Manpower Employment Blawg
• Can We Learn Anything about Employee Recognition from “The Office?” – from Compensation Cafe
• “Court Says Porn on Work Computer Is Grounds for Firing” – from How Appealing
• Workplace bullying legislative movement prompts changes to employer liability insurance policies – from David Yamada’s Minding the Workplace
• Three Good Reasons for an Anti-Bullying Policy – from THRD’s Blog
• Employees Call In Sick To Avoid Commuting – from Workplace Diva
• Workplace romances: your office or mine? – from Employment Law Worldview
• Nursing Mothers as Lower Performers? They’re Not in My Office! – from TLNT
• Anyone Think Employment Screening Legislation is Hypocritical? – from Nick Fishman at employeescreenIQ Blog

Wage & Hour

• Baseball’s First Player Takes Paternity Leave – from FMLA Insights
• Do Employers Need to Pay Workers For Time Spent Turning On and Off Their Computers? – from Wage & Hour - Development & Highlights

Labor Relations

• The Latest from the NLRB on Social Media – from Workplace Privacy Counsel
• Twitter Dispute at Reuters Is Resolved – from Nolo’s Employment Law Blog
• Obama’s NLRB Strikes Again! Employees’ Vote to Decertify Voided Over Employer Handbook – from LaborUnionReport.com
• NLRB Expands Handbilling Rights on Private Property – from Vorys on Labor
• Plaintiff Alleged Actionable Retaliation Claim, Where Asserted Former Employer Denied Him Work as Independent Contractor In Retaliation for Testimony in Co-Employee’s Case – from Overtime Law Blog
• The Real Costs of Union Labor – from Labor Relations Institute

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

EEOC: subpoenas or witch hunts?

The Witch: I’m not a witch! I’m not a witch!
Sir Bedevere: But you are dressed as one
The Witch: *They* dressed me up like this!
Crowd: We didn’t! We didn’t…
The Witch: And this isn’t my nose. It’s a false one.
Sir Bedevere: [lifts up her false nose] Well?
Peasant 1: Well, we did do the nose.
Sir Bedevere: The nose?
Peasant 1: And the hat, but she is a witch!
Crowd: Yeah! Burn her! Burn her!

   – Monty Python and the Holy Grail (1975)

In EEOC v. Konica Minolta Business Solutions USA., Inc. (7th Cir. 4/29/11) [pdf], the 7th Circuit blessed the EEOC’s use of its subpoena powers in single-employee cases to try to develop systemic discrimination claims against the charged employer. By defining the EEOC’s subpoena powers broadly, this court permits the agency to conduct nothing short of witch hunts with very little, if any, evidentiary support.

The facts of the case are simple. Elliot Thompson worked in one of Konica’s four Chicago facilities. Thompson filed a charge with EEOC alleging that Konica discriminated against him because of his race and fired him after he complained about it. The EEOC, in turn, issued a subpoena to Konica seeking information about its hiring practices at all four of its Chicago facilities. Konica refused to comply, arguing that the requested materials were irrelevant to Thompson’s specific charge.

The 7th Circuit agreed with the district court that the EEOC’s subpoena was not overly broad in relation to the underlying charge:

The Commission is entitled generally to investigate employers within its jurisdiction to see if there is a prohibited pattern or practice of discrimination. Here, Thompson alleged both a specific instance and such a pattern of race discrimination…. The question … is whether information regarding Konica’s hiring practices will “cast light” on Thompson’s race discrimination complaint.

We have no trouble concluding that the information the EEOC is seeking meets that standard. The answer to the question whether Konica discriminates in hiring or in assigning employees to its various facilities will advance the agency’s investigation into possible discrimination against Thompson based on his race, as well as any more general case it might choose to bring….

Nothing in this record suggests that the EEOC has strayed so far from either Thompson’s charge or its broader mission that it has embarked on the proverbial fishing expedition. The Commission has a “realistic expectation rather than an idle hope” that the hiring materials it seeks will illuminate the facts and circumstances surrounding Thompson’s allegations of race discrimination…. [T]he EEOC limited its inquiry to the four Konica branches in the Chicago area and to sales personnel. We conclude that the information sought by the EEOC in this case is properly tailored to matters within its authority.

It should come as no surprise that the EEOC conducts investigations with blinders off. It is always on the lookout for patterns and practices of systemic discrimination. Every discrete charge of discrimination lodged by a single employee is an opportunity for the EEOC to look for its witch, even where she doesn’t exist. And, at least some courts are willing to indulge the EEOC’s efforts. Employers should not let their guards down and assume that the investigation of an employee’s charge is limited to that employee and that charge. If there are broader problems, the EEOC will find them, or paper you with subpoenas trying.

[Hat tip: Employer Law Report and Outten & Golden Employment Law Blog]

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

(Disabled) parking wars

Few things makes me madder than when I see a car that lacks a disabled designation parked in a handicap parking space. Many a trip to the supermarket is punctuated by a conversation about why so and so thinks it’s okay to park in that spot. In my younger days, I even went so as to confront the apparent offender, but I’ve mellowed a touch with age.

When I read last week’s EEOC press release announcing the filing of a disability discrimination lawsuit against Sysco Oklahoma LLC, I wondered if I would have counseled the employer to have acted any differently (minus one key fact):

According to the EEOC’s suit, Amanda Thompson, who worked for Sysco as a customer relations expert from December 2008, was observed parking in one of the employer’s unreserved handicap parking spaces in February 2009. The same day, Sysco demanded Thompson provide Sysco a physician’s full medical release, notwithstanding the fact that Thompson had been performing her job satisfactorily at all times. Several days later, before the deadline for providing the medical release had passed, Sysco terminated Thompson’s employment.

Even the EEOC’s own policy guidance discussing reasonable accommodations permits an employer to “ask the individual for reasonable documentation about his/her disability and functional limitations” when the disability or need for an accommodation is not obvious. The EEOC’s hyperbole notwithstanding, the employer’s fatal flaw was not in asking for the doctor’s note to verify the need for the handicap parking space, but in taking action before it’s own self-imposed deadline.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

6th Circuit tosses out DOL’s internship test

A little over a year ago, the Department of Labor signaled that it was placing unpaid internships and training programs in its crosshairs, via its publication of Fact Sheet #71 (entitled, Internship Programs Under The Fair Labor Standards Act). That Fact Sheet re-affirmed the DOL’s six-factored analysis for the legality of unpaid internships.

Solis v. Laurelbook Sanitarium and School, Inc. (6th Cir. 4/28/2011) concerned whether students who worked at a school-owned nursing home as part of their schooling were employees (who must be paid) or interns/trainees (who do not).

The 6th Circuit broke ranks from the Department of Labor and refused to apply its six-factored test to determine whether the school properly classified these student workers:

We find the WHD’s [six-factored] test to be a poor method for determining employee status in a training or educational setting. For starters, it is overly rigid and inconsistent with a totality-of-the-circumstances approach, where no one factor (or the absence of one factor) controls….

[W]e hold that the proper approach for determining whether an employment relationship exists in the context of a training or learning situation is to ascertain which party derives the primary benefit from the relationship. Factors such as whether the relationship displaces paid employees and whether there is educational value derived from the relationship are relevant considerations that can guide the inquiry.

The court concluded that even though Laurelbrook obtained some benefit from the students' activities, the primary benefit of the program ran to the students. Therefore, the school properly categorized them as unpaid interns or trainees.

Notwithstanding this seemingly pro-business decision, internships continue to be a touchy wage and hour issue. Employers should be mindful of all of these principles, and tread very carefully if debating the use of unpaid interns, volunteers, or trainees.

In vitro proving to be fertile ground for sex discrimination claims

One case has the potential to be an anomaly. Two cases is a bona fide trend. Nearly three years ago, in Hall v. Nalco Co., the 7th Circuit afforded Title VII protection to a woman’s infertility treatments.

Last month, in Govori v. Goat Fifty, LLC (S.D.N.Y. 3/31/11), a different court permitted an employee—fired the day after she advised her supervisors and co-workers that she had begun fertility treatments—to proceed with her sex discrimination claim. If employers weren’t paying attention to this issue before, they should be now.

In evaluating Govori’s pregnancy discrimination claim, the court adopted the reasoning of Hall, which concluded that Title VII protects women undergoing in vitro fertilization treatments because only women are anatomically capable of undergoing these procedures:

[O]nly women undergo surgical implantation procedures; therefore, only women and not men stand in potential danger of being fired for missing work for these procedures. An employer who fires his female employee for missing work for IVF treatment discriminates not on the basis of reproductive capacity or infertility alone, but on the basis of medical conditions related to pregnancy. Thus, women who are fired for undergoing IVF are protected from such discriminatory, sex-based action by the terms of the PDA. 

The question presented here is whether an employer, having assumed the financial responsibility of salaried employment, can then fire its female employee solely on the basis that she decided to undergo IVF treatments…. Accordingly, Govori has stated a cognizable claim for sex-based discrimination under Title VII, as amended by the PDA.

Pregnancy and pregnancy-related medical procedures (such as IVF) differentiate female employees from their male counterparts. As long an employer is going to permit any employee to take time off for a non-pregnancy related short-term debilitating condition, it must make the same allowance for a female worker’s pregnancy-related medical procedures.