What isn’t a “complaint” under the FLSA? An Ohio federal court weights in

In Kasten v. Saint-Gobain Performance Plastics, the United States Supreme Court concluded that the anti-retaliation provision of the Fair Labor Standards Act covers oral complaints — but only if they are “sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.” The issue of what qualifies as a “clear and detailed … assertion of rights” was front and center in Riffle v. Wal-Mart Stores, Inc. (N.D. Ohio 1/24/12).

In Riffle, the only complaints the plaintiff made to her Wal-Mart supervisors were complaints about receiving telephone calls she received at home from co-workers who needed assistance in the cash office. The court concluded that the complaints did not satisfy the threshold established in Kasten.

Plaintiff’s complaints … are insufficient because they are not framed in terms of an FLSA violation as required by Kasten. The complaints plaintiff testified she made to her supervisors could not have reasonably been perceived by defendants as a complaint that plaintiff was not being paid in accordance with the requirements of the FLSA or that defendants otherwise violated the FLSA.

Following Riffle, employers have some guidance as to the types of communications that do not qualify for protection under the FLSA’s anti-retaliation provision. Figuring out what does qualify will prove trickier, and will take years of cases and judicial opinions to sort out.

In the meantime, try not to do the following to your employees who engage in some protected activity:

[Link to YouTube video for those reading in an email]

Another consideration in the high cost of wage and hour litigation: e-discovery

I’ve written before about the high risks companies face from wage and hour class/collective lawsuits (here’s one example). Here’s another factor to consider: the exorbitant costs imposed by e-discovery and employers’ obligations to preserve electronic records.

Workplace Prof Blog brings us the story of Pippins v. KPMG, a wage and hour collective action alleging that the accounting firm deprived its Audit Associates of overtime wages. Before the class was even certified, the court imposed upon KPGM the obligation to preserve the potential class members’ more-than 2,500 laptop hard drives. Following certification, KPMG argued that instead of preserving all of the hard drives—at an astounding cost of more than $1.5 million—it should only be required to keep a representative sample comprised of the named plaintiffs.

The court disagreed:

Based on Plaintiff’s recollections regarding their former hard drives, I agree with [Magistrate] Judge Cott that the hard drives are likely to contain relevant information. The information on the hard drives will likely demonstrate when the Audit Associates were working (hours) and what they did while at work (duties). This information is obviously relevant in a case asserting violations of the FLSA … since Plaintiffs need to establish what type of work they performed in order to prevail on the merits, and how many hours a week they worked in order to collect damages….

I gather that KPMG takes the position that the only Audit Associates who are presently “parties” are the named plaintiffs, and so only the named plaintiffs’ hard drives really need to be preserved. But that is nonsense…. [T]he duty to preserve all relevant information for “key players” is triggered when a party “reasonably anticipates litigation.” At the present moment, KPMG should “reasonably anticipate” that every Audit Associate who will be receiving opt-in notice is a potential plaintiff in this action.

What are the lessons for employers?

1. When considering the goofy costs (and risks) of wage and hour non-compliance, you not only have to factor in unpaid wages, liquidated damages, your legal fees, and the employees’ legal fees, but also the costs of preserving all of the electronic information the plaintiffs will seek in discovery. Like most employment cases, there exists a palpable disparity in the ownership of information. Employers possess most of the relevant information, and therefore carry most of the costs in the retention and production of documents. 
2. To guard against these goofy costs, audit your wage and hour practices. ’Tis better to spend a few thousand dollars up front to gain knowledge of which of the myriad wage and hour laws your company might be violating, than to spend a few hundred thousand (or a few million!) dollars later to defend against, or pay out on, a wage and hour class action. (Not that employers can't win these cases).

The digital divide and disparate impact

According to statistics recently published by Mashable, the digital divide—those who are connected to the Internet versus those who are not—is partially racial. 72% of white homes are connected to the Internet, as compared to only 57% of Hispanic homes and 55% of African American homes.

These numbers mean that if you are using access to technology as a qualifying factor for employment, your hiring practices might have a disparate impact on Hispanics and African Americans. For example, do you only accept job application over the Internet? Or, do you only recruit via Monster.com or LinkedIn? Or do you only consider candidates whom you can vet via Facebook or some other digital footprint? If so, you might want to consider casting a wider net, unless remote technology access is truly job related and consistent with business necessity.

A pisser of an HR policy

I’m a firm believer in good, sound, and comprehensive HR policies. They are necessary evil to establish the baseline expectations between a company and its employees. For example, they help avoid any confusion about the appropriate uses of email and the Internet. They also tell employees how many days-off they are allowed. And, in some cases, such as harassment and the FMLA, the law just flat-out requires them.

But, like all good things, HR policies can go too far. An example, you ask? How’s this one, courtesy of Above the Law. A San Francisco law firm issued an “Office Restroom Etiquette” policy, which included discussions on how much time to spend taking care of business, how to clean up, and what to do about certain natural odors and noises. It also offered some pointers for its male employees on what to do at urinals:

In urinals, keep your eyes up and ahead and avoid looking around as a mistaken glance in the wrong direction may be embarrassing and might even result in a confrontation. Also, keep as much distance between yourself and others in public restrooms. Always choose the urinal farthest away from other people if possible; this goes for stalls too.

Here’s another true story. I know someone who worked for a company at which the boss monitored employees’ every move via hidden cameras, including how often, and for how long, they visited the restroom. If your management has so much time on their hands that they need to involve themselves in employees’ bathroom habits, you might want to consider downgrading them to part-time status. They obviously do not have enough to fill their plates on a full-time basis.

WIRTW #211 (the “Vegas, baby!” edition)

Are you attending next week’s Social Media Strategies Summit in Las Vegas (presented by GSMI)? Social Media Today recently rated it as one of the 10 best social media conferences to attend in 2012. Guess who’ll be speaking, at 10 am, on February 9? If you guessed me, you’re the big winner. I’m presenting, Lawyers, Booze and Money: Social Media Compliance for Regulated Industries. If you’re at the conference, please stop by and say hello. I’ll also be around Wednesday afternoon, so look for me around The Mirage. I won’t be the guy at the high roller tables.

Here’s what I read this week:

Discrimination

• Employers, you might (or might not) be liable for retaliation if… — from Robin Shea’s Employment and Labor Insider
• EEOC’s Shifting Focus: Systemic Discrimination — from Stephanie Thomas’s The Proactive Employer Blog
• USERRA protections expanded to include hostile work environment — from Sindy Warren’s Warren & Hays Employment Law Blog
• Obesity: The New Discrimination under the ADA — from Restaurant Law Blog
• The Top 5 Most Intriguing Decisions In EEOC Cases Of 2011 — from Workplace Class Action Litigation
• EEOC Sues Employer for Not Allowing Employee to Attend Religious Convention — from Joe’s HR and Benefits Blog
• Catholic Teacher Fired for Having a Baby — from Legal As She Is Spoke
• Should Pregnancy Be Treated as a Disability? — from The Juggle (Wall Street Journal)

Social Media & Workplace Technology

• Monitoring and Accessing Employee Private Email Results in Lawsuit — from Jason Shinn’s Michigan Employment Law Advisor
• Could You Go Three Months Without A Mobile Phone, Email, Facebook, LinkedIn and Twitter? — from Kashmir Hill’s The Not-So Private Parts
• Your Gen Y employees love mixing business with pleasure online — from Eric Meyer’s The Employer Handbook Blog
• Posited “right to be forgotten online” — from Walter Olson’s Overlawyered
• Dark side of social media: age discrimination — from CBS News
• Just Friends? What To Consider Before Befriending Your Boss — from Huffington Post
• Study: 91% of Gen-Ys Use Their Phones in the Bathroom — from ReadWriteWeb
• Tell employees of monitoring plans — from Judy Greenwald at Business Insurance
• Privacy on social media – do we even care? — from Soshable

HR & Employee Relations

• Does your Startup Need an Employee Handbook? — from JumpStart Blog
• Courtroom Lessons for the Business Owner/Employer — from Rob Radcliff’s Smooth Transitions
• Welcome to the Company, Oh By the Way You Will Be Fired in Four Years — from Mike Haberman’s Omega HR Solutions
• An Employment Brand Is A Relationship — from HR Examiner with John Sumser
• A Lighthearted Take on Deposition Preparation — from Russell Cawyer’s Texas Employment Law Update
• The Background Check Results Are In … Who Won’t HR Hire — from Nick Fishman’s employeescreenIQ Blog
• Building Rapport with Non-Western Interview Subjects — from Dawn Lomer’s i-Sight Investigation Software Blog
• Giants Or Patriots - Do Employers Care? — from Social Media Employment Law Blog
• Super Bowl Hangover? Yes, Employees May Be Less Productive on Monday — from TLNT
• Most Outrageous Employee Excuses — from Philip Miles’s Lawffice Space

Wage & Hour

• When “letting off steam” becomes protected activity under the FLSA — from Fair Labor Standards Act Law
• “Right to Know” Rule Not Likely in 2012 — from Wage & Hour Insights
• 3d Cir. Finds Individual Supervisor Liable Under FMLA — from Molly DiBianca’s Delaware Employment Law Blog
• Five 2011 FMLA Cases That Give Guidance To Employers In 2012 — from Hunton Employment & Labor Law Perspectives™
• DOL Proposes FMLA Regulatory Changes Regarding Military Family Leave, Flight Crew Eligibility and How Employers Calculate FMLA Leave — from Jeff Nowak’s FMLA Insights

Labor Relations

• An Overview of “Right to Work” — from Dan Schwartz’s Connecticut Employment Law Blog
• NLRB Chairman Says He Will Push For Additional Election Rule Changes — from Labor Relations Counsel

What does Groundhog Day teach us about federal courts?

In the movie Groundhog Day, Bill Murray repeats February 2—over, and over, and over again—until he gets it right. In Sollitt v. Keycorp (6th Cir. 2/1/12) [pdf], Kevin Sollitt and his former employer are doomed to repeat his wrong discharge lawsuit, because the bank took an aggressive position in removing his case to federal court.

(For the uninitiated who want to read all about the removal of lawsuits from state court to federal court, click here, read, and then come back.)

In sum, the appellate court concluded that the Edge Act—which permits claims involving international or foreign banking to be filed in federal court—did not provide a basis for removal of Sollitt’s state law wrongful discharge claim. The Court was reluctant to subscribe “an inherently limitless view” to the Edge Act’s grant of federal jurisdiction:

Suppose, for example, that Sollitt had tripped and fallen over a stack of carelessly placed printouts of foreign-currency transactions. This meager association—ridiculous as it is—between the potential negligence claim and the foreign banking transaction that generated the printouts, would appear to suffice for Edge Act jurisdiction under so limitless a view. That cannot be correct….

Sollitt accused a co-worker of misconduct, KeyCorp fired Sollitt, and Sollitt sued in federal court for wrongful termination. KeyCorp’s firing of Sollitt was not an aspect of “banking” and, therefore, Sollitt’s claim of wrongful termination did not “arise out of” a banking transaction, even though the entire episode arguably can be traced back to the PHC foreign currency transaction.

As a result, the case will be remanded back to state court, where it was originally filed. In the interim, the parties litigated the case, and the employer won summary judgment. Now, the parties are going back to state court, (maybe) to do it all over again. The plaintiff will certainly want the chance to re-present the factual issues raised in opposition to the summary judgment motion, or present new issues he may have discovered.

The lesson? Be very careful when you remove cases. A federal court’s subject matter jurisdiction is always in play, at each stage of litigation. An appellate court can bounce a case back to state court even if the district court never even entertained the jurisdictional issue. When that happens, you will have a Bill Murray moment.

Happy Groundhog Day.

10 thoughts for your mobile device policy

According to a recent survey, there are 324.3M mobile devices in the United States. Let that number sink in. It equates to 1.025 mobile devices per American. And, according to another recent survey, 46% of all American those mobile devices are smartphones. This number does not even account for the number of iPads and other tablets.

In other words, your employees are connected all the time, both at, and away from work. It also means you need to have a policy to account for this penetration of mobile devices.

Here are 10 questions for you to think about in drafting (or revising) your mobile device policy:

1. Do you allow for your employees to connect personal devices to your network? Or do you limit network connectivity to employer-provided devices? And, where is the data stored, on the device itself, or remotely? The answer to these questions will not only impact the security of your network, but also dictate which mobile devices and OSs will your company support.
2. Do you permit employees to use mobile devices in the workplace? It’s difficult to require employees to check their devices at the door. But, if you have safety-sensitive positions, you should consider protecting these employees from the distractions mobile devices cause.
3. Who pays for the device, not just at its inception, but also if it is lost or broken and needs to be replaced? If you require your employees to reimburse for lost phones, state wage payment laws may limit your ability to recoup via a paycheck deduction.
4. And, do employees have an expectation of privacy as to data transmitted by or stored on the device? Do you tell employees that their expectation of privacy is limited or non-existent? Are you tracking employees via GPS, and, if so, are you telling them? In light of last week’s ruling in U.S. v. Jones, limiting employees’ expectation of privacy is more important than ever.
5. For non-exempt employees, do you permit mobile devices to be used for business purposes, and if so, do you prohibit their use during non-working hours? Otherwise, you might be opening your organization up to a costly wage and hour claim.
6. Do employees know what to do if a device is lost or stolen? Do you have the ability to remote-wipe a lost or stolen device? Even if you have the ability to remote-wipe a device (and if you don't, you should), your employees will prevent a remote wipe if their first call upon losing a device is to Verizon (which will deactivate the phone) instead of your IT department.
7. Do you prohibit employees from jailbreaking their iPhones or rooting their Androids? These practices void the phone’s warranty. Also, consider banning the installation of apps other than from the official iTunes App Store or Android Market. It will limit the risk of the installation of viruses, malware, and other malicious code on the devices.
8. Are devices required to be password-protected? It will provide an extra layer of protection if the device is lost or stolen. Also, your industry might dictate an added layer of protection. Do you employ lawyers or medical professionals, for example? If so, ethical rules or HIPAA might mandate password locks.
9. Do you forbid employees from using their mobile devices while driving? 35 states (but not yet Ohio) have a laws that bans some type of mobile device use while driving. It is safe to assume that the other 15 states will soon join in. Even if your state is not included, do the right thing by suggesting your employees be safe while operating their vehicles.
10. How does your policy interact with other policies already in existence? Your mobile device policy should cross-reference your harassment, confidentiality, and trade secrets policies, all of which are implicated by the use of mobile technology.