WIRTW #249 (the “four more years” edition)

Meet the new boss, same as the old boss. POTUS 44 is still POTUS 44. What does the next four years of President Obama mean for labor and employment law? Some of my fellow bloggers share their thoughts:

• A Look Back at Obama’s (First?) Four Years and Employment Law and Four Potential Employment Law Impacts of Obama’s Next Four Years — from Dan Schwartz’s Connecticut Employment Law Blog
• How will the 2012 Presidential election affect federal employment and labor law? — from David Yamada’s Minding the Workplace
• Obama’s Next Four Years: What It Means for HR and Employment Law — from Stephanie Thomas’s Proactive Employer Blog
• What Obama’s re-election means for HR and employment issues — from BLR HR Daily Advisor
• Future Shock: What the Election Results Mean For the U.S. Workplace — from Workplace Diva
• Obama Wins, Senate Democrats Keep Majority - What Will it Mean for Employers? — from Washington D.C. Employment Law Update

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

Discrimination

• Harassment Prevention: It's All Fun and Games … Until It's Not — from Molly DiBianca’s Delaware Employment Law Blog
• Supervisor Stating I’m “Going To See To It” That Worker Retires When He’s 62 May Be Direct Evidence Of Age Discrimination — from Atlanta Employment Lawyer Blog
• Maintaining a “Good Ol’ Boys” Environment Is A Sure Way To Get Sued — from Employment Discrimination Report
• I was fired while undergoing medical treatment: Is it legal? — from Evil HR Lady, Suzanne Lucas

Social Media & Workplace Technology

• Emerging Issues in Social Media – The Status of Social Media Password Legislation — from netWORKed Lawyers
• Is Technology Making You More (or Less) of a Jerk? — from Harvard Business Review
• LinkedIn Now Has 187 Million Members — from Mashable
• Do “sexting” and “mash-up” belong in the dictionary? — from Lawyerist

HR & Employee Relations

• Four Tips to Remember When Documenting — from Workplace Insights
• What the Questions in Job Related Personality Tests Really Mean — from Lifehacker
• The Cost of Obesity — from Rob Radcliff’s Smooth Transitions
• No Bathroom Breaks For You! — from Donna Ballman’s Screw You Guys, I’m Going Home
• Madison Square Garden Company Strong-Arms Employees Into Using Vacation Days Post-Sandy — from Deadspin
• Playbook for Protecting Trade Secrets Begins with Protecting Your Home Turf — from Jason Shinn’s Michigan Employment Law Advisor

Wage & Hour

• Paying banana boxes of food as OT is not an a-peeling option — from Eric Meyer’s The Employer Handbook Blog
• Three Myths about Holiday Pay Under the FLSA — from Blogging4Jobs
• De Minimis Exception Applies Only in Cases Where There is a “Practical Administrative Difficulty in Recording Time” — from Overtime Law Blog
• The 40 Hour Workweek is Alive and Well… — from China Gorman
• Handling Intermittent Leave (and Not Intermittently Losing Your Mind) — from Mark Toth at TLNT
• Transfer to Lesser Sales Territory Was Okay under FMLA, Court Says — from Smart HR Manager

System for employees to report unpaid time insulates company from wage and hour claim, says 6th Circuit

In White v. Baptist Memorial Hosp. (6th Cir. 11/6/12) [pdf], the 6th Circuit answers one of the more difficult questions that faces employers under our wage and hour laws—what is an employer’s responsibility to pay an employee for off-the-clock work?

The employer in White maintained a policy under which all employees received a daily, automatic unpaid meal break. The policy also provided, however, that if an employee worked through a meal break, or had a meal break interrupted for a work related reason, the employee would be compensated for the time worked. The policy instructed employees to record all time spent working during meal breaks in an “exception log,” from which the employer calculated any off-the-clock pay owed.

The plaintiff, Margaret White, testified that she usually was paid when she reported a missed meal break in the exception log. She also testified that there were occasions when she missed meal breaks and was not compensated. When there were payroll errors, White stated that she reported the mistake to a nurse manager, and the problem were “handled immediately.” White testified that while she told supervisors and the HR department that she had missed meal breaks, she never told them that she had not been paid for them.

Eventually, White stopped reporting her missed meal breaks in the exception log, and stopped reporting payroll errors to a nurse manager. Instead, she brought suit under the Fair Labor Standards Act for failing to compensate her for working during meal breaks.

The 6th Circuit concluded that White’s case was properly dismissed. It focused its analysis on this issue—whether the employer knew, or had reason to know, it was not compensating White for working during her meal breaks. Because White had failed to follow the hospital’s procedures for reporting unpaid time, the employer was not at fault:

Under the FLSA, if an employer establishes a reasonable process for an employee to report uncompensated work time the employer is not liable for non-payment if the employee fails to follow the established process. When the employee fails to follow reasonable time reporting procedures she prevents the employer from knowing its obligation to compensate the employee and thwarts the employer’s ability to comply with the FLSA….

Baptist established a system to compensate its workers for time worked during meal breaks. When White utilized the system she was compensated and when she failed to use the system she was not compensated. Without evidence that Baptist prevented White from utilizing the system to report either entirely or partially missed meal breaks, White cannot recover damages from Baptist under the FLSA.

What is the lesson for employers to take away from White? Have a reasonable process for employees to report uncompensated work time. Under the FLSA, it is the employee’s burden to show that he or she was working during non-working time. A policy that underscores that burden by requiring employees to document times during which they are working “off-the-clock” can only help an employer defend against an employee’s claim for compensation for unreported, off-the-clock time.

It just doesn’t matter (who’s the President of the United States)

By the time you’re reading this, we’ll either have the same President, or a new President, or, they’ll still be counting Ohio’s provisional and absentee ballots, and we’ll have no idea who the next President will be. (Update: Ohio was nowhere near as close as anyone thought it might be.)

The President has a large impact on labor and employment policy in this country. If one candidate wins we’ll have universal health care and activist federal agencies. If the other candidate wins we may not (or may) have universal health care, and we will have less activist federal agencies. Who wins also impact who is appointed to the federal bench, including the Supreme Court, which may be any President’s most lasting legacy.

And yet, whether we have President Obama or President Romney for the next four years shouldn’t make a lick of difference on how you manage your employees. You should still follow the golden rule. You should still treat employees with dignity and respect. You should still pay employees for all the hours they work. You should still avoid discrimination, and harassment, and retaliation.

Each President will offer his own agenda. The next four years under President Obama will look very different to businesses than the next four year under President Romney. Be good to your people, and the rest, more often than not, falls into place.

In other words, if you manage your employees reasonably, pragmatically, and with decency, it just doesn’t matter, from a day to day perspective, who the President is.

Silence can be golden when dealing with employee medical issues

“Regarded as” disability discrimination claims are supposed to be blind to whether an employee actually suffers from a physical or mental impairment that limits a major life activity. These claims protect individuals who are able to meet a job’s requirements from an employer’s perception of an inability to perform the job’s functions because of a medical condition.

What happens, however, when an employer makes a personnel decision with no knowledge that the employee suffers from some medical condition? Can the employee still claim that the employer “regarded” him or her as disabled? According to one recent decision from an Ohio court of appeals, the answer is no.

In Field v. Medlab Ohio (11/1/12) [pdf], the employee alleged that her employer transferred to her a less favorable sales territory and ultimately terminated her because it perceived her as suffering from alcoholism (a protected disability).

The court disagreed, because Medlab had no knowledge of Field’s condition at the time it made its decisions regarding her employment:

There is nothing in the record that shows that MedLab had any knowledge that Field suffered from alcoholism or any mental disorder as defined. Moreover, the record establishes that any transfer or reassignment of territories occurred prior to MedLab learning that Field was hospitalized or that she was having a “nervous breakdown.” Finally, Field was not terminated from employment with MedLab until after Field continued to perform unsatisfactorily in her new “smaller” territory. The record reflects that at no time did MedLab refer to her hospitalization or any mental disorder as the reason for transfer or termination. The record supports that Field’s termination was based on job performance, and Field has failed to show that MedLab’s reasons for termination were merely pretexts.

It’s easy to communicate to managers and supervisors the concept that personnel decisions should be made in a vacuum free from any consideration of medial conditions. It’s difficult, however, for decision makers always to remain silent on these issues. One inopportune slip of the tongue about an employee’s medical condition (or perceived medical condition) could convert a defensible disability discrimination claim into a knock-down, drag-out fight culminating in a risky jury trial. Field v. Medlab Ohio illustrates that good outcomes do result from employment decisions made without reference to impairments, regardless of the employee’s underlying medical issues.

What skeletons are you unearthing by suing an ex-employee?

Before you bring suit against an ex-employee, you might want to consider whether their exist any skeletons in your employment closet that could come back to haunt you in the litigation. Case in point—Automotive Support Group, LLC v. Hightower [pdf], decided yesterday by the 6th Circuit.

Automotive Support Group sued two ex-employees for breaching the non-competition provisions in their employment agreements. One of the sued employees, Don Ray McGowan, counterclaimed in the lawsuit for unpaid wages and severance owed under his employment agreement.

The appellate court affirmed the trial court’s dismissal of the company’s claims. It also affirmed the trial court’s judgment for McGowan on his unpaid wage and severance claims. How much did the employee win? $70,501.31—$750 in unpaid wages (trebled under the applicable South Carolina wage payment statute), $2,500 in severance pay, and $65,751.31 in attorneys’ fees. Add to that $70,000 whatever the company paid its own lawyers to litigate this case.

There are two lessons for employers that leap to mind:

1. Unclean hands. Non-competition cases are often decided on equitable bases. In addition to money damages, you are likely asking a court to award you an injunction enforcing the agreement and precluding the employee from working for a competitor. To obtain an injunction, however, one must have what is called “clean hands.” Clean hands means that the party seeking an injunction has not acted inequitably or unfairly toward the party it is seeking to enjoin. Refusing to pay wages raises the possibility of a court refusing to issue an injunction because of your unclean hands. The better practice: pay the wages (you owe them anyway), and then file suit.

2. Sometimes you get what you ask for. Would McGowan have started a lawsuit over $3,250? Probably not. Once he was sued, did have anything to lose by raising those issues as a counterclaim? Again, probably not. If you are going to bring a lawsuit against an ex-employee, make certain that you are not creating an environment to incent that individual to file a claim that otherwise might stay buried and never see the light of day.

WIRTW #248 (the “vote early, vote often” edition)

In case you haven’t heard, there is a presidential election taking place on Tuesday. My guess is that a few of your employees are going to vote, and some may even want to arrive at work late, or leave early, to beat the pre- and post-9 to 5 rush at the polls.

In case you are thinking about holding your workers to their normal work hours on election day, you should know that Ohio has a statute that requires employers to provide a “reasonable amount of time to vote on election day.”

And remember, if you don’t vote, you have no right to complain. Or, is George Carlin right, and it’s the other way around? (Do I need to warn you that a Carlin clip is likely NSFW?)

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

Discrimination

• EEOC Regional Attorneys Speak On the EEOC’s Future Targets — from Employment Discrimination Report
• Can You Be Fired For Supporting A Political Candidate? — from Donna Ballman’s Screw You Guys, I’m Going Home
• Judge Nancy Gertner on the Situation of Discrimination Claims — from The Situationist
• Butt Slapping … Not Harassment? — from Phil Miles’s Lawffice Space
• What happens when the boss is dating the sexual harasser? — from Warren & Associates Blog

Social Media & Workplace Technology

• Employers, beware the siren’s song of social media searches — from Technology for HR
• Gap veers from its social media policy in Twitter blunder — from Ragan.com
• I Was Fired For Recruiting on LinkedIn — from Jessica Miller-Merrell’s Blogging4Jobs
• How to Update your Employee Handbook to Include Social Media — from i-Sight Investigation Software Blog
• Analysts’ Financial Disclosures on Facebook Lead to Fine and Termination — from Dan Schwartz’s Connecticut Employment Law Blog
• Salty about Sandy: 20 Hurricane tweets from your employees — from Eric Meyer’s The Employer Handbook Blog
• eDiscovery 101: BYOD = BYOA (ASPIRIN) — from e-Discovery Insights
• When you and employer split, who gets your friends and followers? — from Bob Sullivan at NBC News

HR & Employee Relations

• Dear Evil Skippy: Can Management Require Employees To Get Flu Shots? — from Evil Skippy at Work
• Why Documentation Is Important — from Mike Haberman’s Omega HR Solutions
• Non-smokers Should Heart Workplace Smoking Bans — from Workplace Diva
• Employment-at-Will: Walking the Fine Line, Conclusion — from The Emplawyerologist
• DIY Employment and Noncompete Agreements: Are You Getting What you Pay For? — from Jason Shinn’s Michigan Employment Law Advisor
• The horror! Nine things employers say that spook their lawyers — from Robin Shea’s Employment and Labor Insider

Wage & Hour

• Modifying Workweeks to Avoid Overtime: Employers Should Still Proceed With Caution — from Wage & Hour Defense Blog
• Do you have to be paid if your office is closed because of weather? — from Evil HR Lady, Suzanne Lucas
• Dads Need Lovin’ Too! Father Can Proceed with FMLA Retaliation Claim in “Macho Culture” Lawsuit — from Jeff Nowak’s FMLA Insights
• Transfer to Lesser Sales Territory Was Okay under FMLA, Court Says — from Smart HR Manager
• How to Negotiate Your Parental Leave — from Harvard Business Review

Labor Relations

• Unions Scold Corporations… For Trying to Keep Up With Union Politicking — from LaborPains.org
• Was the NLRB’s Decision About Employee Use of Social Media on Company Time Much To Do About Nothing? – Maybe — from netWORKed Lawyers

The “I”s have it: NLRB says don’t shred those at-will disclaimers just yet

If you are a non-union employer, you likely have an employee handbook that sets forth the policies and procedures that guide your relationship with your employees. And, if you have an employee handbook, it likely contains a disclaimer stating that employees are at-will, that employees can be fired at any time for any reason, and that nothing in the handbook alters that at-will status. Indeed, employers commonly deploy these disclaimers to avoid claims by employees that the handbook creates a binding and enforceable contract.

Consider the following three at-will disclaimers, taken from real, live employee handbooks:

1. I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.

2. The relationship between you and Mimi’s Cafe us referred to as “employment at will.” This means that your employment can be terminated at any time for any reason, with or without cause, with or without notice, by you or the Company. No representative of the Company has authority to enter into any agreement contrary to the foregoing “employment at will” relationship. Nothing contained in this handbook creates an express or implied contract of employment.

3. Employment with Rocha Transportation is employment at-will. Employment at-will may be terminated with or without cause and with or without notice at any time by the employee or the Company. Nothing in this Handbook or in any document or statement shall limit the right to terminate employment at-will. No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will. Only the president of the Company has the authority to make any such agreement and then only in writing.

What’s the difference between these three policies? According to the February 1, 2012, opinion of a National Labor Relations Board Administrative Law Judge, #1 is an illegal and overly broad restraint on the right of employees to engage in protected concerted activity. According to two advice memoranda published yesterday by NLRB Acting General Counsel Lafe Solomon, #2 and #3 pass muster and are not illegal.

What’s the difference? According to Mr. Solomon, the distinction lies in the use of the personal pronoun, “I.”

The ALJ found that the signing of the acknowledgement form, whereby the employee—through the use of the personal pronoun “I”—specifically agreed that the at-will agreement could not be changed in any way, was “essentially a waiver” of the employee’s right “to advocate concertedly … to change his/her at-will status.” Thus, the provision in American Red Cross more clearly involved an employee's waiver of his Section 7 rights than the handbook provision here.

By comparison, the Mimi’s Cafe and Rocha Transportation disclaimers merely serve to reinforce the unambiguously-stated purpose of the employers’ at-will policies, and do not require employees individually to agree never to alter their at-will status.

These distinctions are nuanced, and the NLRB recognizes their unsettled nature. From the NLRB’s website:

Because Board law in this area remains unsettled, the Acting General Counsel is asking all Regional Offices to submit cases involving employer handbook at-will provisions to the Division of Advice for further analysis and coordination.

It is refreshing (surprising? relieving?) to see that the NLRB’s Office of General Counsel is backing off the position that any at-will disclaimer violates the NLRA, and is willing to evaluate them on a case-by-case basis.

For now, you should take a look at your handbook disclaimers and consider scrubbing them of personal pronouns. Instead, consider using the examples from either Mimi’s Cafe or Rocha Transportation as a template.

Of course, the validity of that template to avoid a binding contract under state law could vary from state to state. For this reason, you are best served running any disclaimer by your employment counsel before rolling it out to your employees.