When are preliminary and postliminary compensable? Supremes to let us know (maybe).

Yesterday, the Supreme Court agreed to hear Busk v. Integrity Staffing Solutions, to answer the following question (via SCOTUSblog):

Whether time spent in security screenings is compensable under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act.

“What does this mean,” you ask? In Busk, the plaintiffs claimed their employer illegally failed to compensate them for the time they spent passing through a required security check at the end of each shift. According to the plaintiffs, employees waited up to 25 minutes to be searched; removed their wallets, keys, and belts; and passed through metal detectors. They claimed that the checks were “necessary to the employer’s task of minimizing ‘shrinkage’ or loss of product from warehouse theft.”

The FLSA, as amended by the Portal-to-Portal Act, generally, precludes compensation for activities that are activities that are preliminary or postliminary to the employees’ principal activities. Preliminary and postliminary activities—those that are “integral and indispensable” to an employee’s principal activities—are compensable. To be “integral and indispensable,” an activity both must be (1) necessary to the principal work performed and (2) done for the benefit of the employer.

In Busk, the court concluded that the plaintiffs had sufficiently alleged that the security clearances were necessary to their primary work as warehouse employees and done for their employer’s benefit. Therefore, the district court erred in dismissing the wage-and-hour claim.

This  case is the second in as many years that the Supreme Court will hear on this issue. Earlier this year, in Sandifer v. U.S. Steel, the Court concluded that the time employees spent donning (putting on) and doffing (taking off) their protective gear was not compensable under their collective bargaining agreement.

There are lots of other examples of preliminary of postliminary activities that could be occurring in your workplaces besides putting on and taking off protective gear, or security screenings. For example, your employees might spend time logging on to their computers before their work days officially begin. Or they might spend time at the end of their shifts transitioning to the next shift. I am hopeful that Busk will provide employers needed guidance on the compensability of these activities. Stay tuned!

NLRB looks to expand reach with latest enforcement priorities

Late last month, the new NLRB General Counsel, Richard Griffin, published a memo (GC 14-01) outlining the matters that the Regions must submit to the NLRB’s Division of Advice for guidance on how to proceed. The memo is of key importance to employers, because it signals those matters that  will be an enforcement priority for the agency moving forward.

Of particular note, the memo lists the following two issues:

• Cases involving the applicability of Weingarten principles in non-unionized settings.

• Cases that involve the issue of whether employees have a Section 7 right to use an employer’s e-mail system or that require application of the discrimination standard enunciated in Register Guard.

Why are these two issues important to employers? Because they show that the NLRB continues to look for ways to expand its reach beyond the traditional union/management setting. As I’ve been arguing for years, the NLRB is looking for ways to become relevant to the 93 percent of employees not covered by a collective bargaining agreement. The Board has cornered the market on social media cases, and is now expanding its reach to other issues—the rights of non-union employees to representation in disciplinary meetings, and email solicitation rules.

It is clear that it is going to be an interesting three years under the current iteration of the NLRB. Employers should expect movement on these two issues. Stay tuned.

WIRTW #309 (the “Hello, and welcome to Moviefone” edition)

Before there was Google or Fandango, there was Moviefone. Growing up, if we wanted to go to the movies, we didn’t have the luxury of iPhones or the Internet. But, we had 777-FILM, the ubiquitous (and free) telephone service that would tell us what movie was playing when and where. Now, of course, we have Fandango and iPhones, and, quite frankly, I’m surprised Moviefone’s telephone service lasted as long as it did. So, with a nostalgic tear, this week we bid adieu to Moviefone’s 25-year-old telephone service. At least we’ll always have Kramer:

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

Discrimination

• U.S. Commission On Civil Rights Blast EEOC’s Background Check Guidance As “Deeply Flawed” — from EEOC Year-End Countdown
• EEOC Charge Data and Chart FY2013 — from Phil Miles’s Lawffice Space
• The Ultimate Bait and Switch? Female Job Applicant Who Claims She Was Forced to Perform Sexual Favors as Part of “Application Process” has no Title VII Claim Because the Job she was “Applying for” Did Not Exist — from The Blue Ink
• EEOC Plucks Another Low Hanging Fruit – Hospital Settles With Fired Epileptic Doctor For $215,000 — from Employment Discrimination Report
• 7th Circuit Upholds Summary Judgment Finding No Adverse Employment Action When Employee Merely Anticipated Transfer That Never Materialized — from Wisconsin Employment & Labor Law Blog
• Mohawks in the workplace aren’t gay. Stupid, but not gay. — from Eric Meyer’s The Employer Handbook Blog
• How do you train you managers on harassment/discrimination? — from Warren & Associates Blog

Social Media & Workplace Technology

• How Can We Keep Our Law Firm’s Systems Safe in a BYOD World? — from Attorney at Work
• Clio survey reveals iPhone, iPad popularity among small law firms — from iPhone J.D.
• We now spend more time using smartphones than surfing the web on PCs — from Engadget Mobile
• Can A Facebook Status Update Violate A Non-Compete? — from InhouseBlog.com
• Got a “Secret”? Firewalls Are Not Stopping Spread Of Social Media  — from Dan Schwartz’s Connecticut Employment Law Blog
• Dammit, Jim! I’m an HR pro, not a social media guru! — from The Human Race Horses

HR & Employee Relations

• 5 reasons why you shouldn’t work too hard — from Washington Post’s She the People Blog
• 6 Tips to Help You Avoid Employee Lawsuits — from The Evil HR Lady, Suzanne Lucas
• Miami Dolphins’ culture sure didn’t help in Incognito situation — from Robin Shea’s Employment and Labor Insider
• Pass ‘em on: Two short videos about workplace bullying and the Healthy Workplace Bill — from Minding the Workplace
• New Trade Secrets Study by PwC and CREATEe.org — from Fair Competition Law
• Knocking Out A Trade Secret Claim—Your Own If You Are Not Careful — from Trade Secrets and Noncompete Blog
• Should Employees Get Dressed Down For Not Dressing Up? — from Workplace Diva
• Does “at-will employment” really mean what you think? — from HR Hero Line
• Will The Reason For My Termination Turn Up In A Background Check? — from Donna Ballman’s Screw You Guys, I’m Going Home

Wage & Hour

• Tales from the Business of Wage and Hour Litigation — from Walter Olson’s Overlawyered
• Employees Seek To Take Bite From Apple (and Urban Outfitters) — from Employment Class Action Blog
• Fifth Circuit Affirms FLSA Summary Judgment Based On “Complete Lack Of Evidence” Of Off-the-Clock Work — from Wage and Hour Law Update
• Don’t Play Fast and Loose with FMLA rights! — from Employer Law Report

Labor Relations

• Volkswagen Workers Vote Against UAW Representation; UAW Challenges Result — from Hunton Employment & Labor Law Perspectives™
• NLRB announces April 10 and 11 public meeting on proposed amendments to representation-case procedures​ — from Labor Relations Institute

Has social media created too much workplace transparency?

I have two confessions to make: 1) I don’t read much anymore, at least not for pleasure. 2) I can’t do work on airplanes.

“How are these related,” you ask? I used to read a lot. Now, though, I do all my reading at work. After a long day of reading briefs, and motions, and cases, the last thing I want to do at night is read more. The only time I read is when I fly. I don’t enjoy business travel, but I do enjoy the few hours of solitude with a good book (unless the guy sitting next to me knocks back 4 vodka-OJs in the first 10 minutes of the flight and then falls asleep on my shoulder while he continuously passes wind — true story).

On Monday I was in Houston on an injunction hearing attempting to enforce a non-compete, which meant that on Sunday night and Monday evening, I had dedicated airplane-pleasure-reading time. My book of choice was The Circle, by Dave Eggers. It tells the story of a Bay-area company that has cornered the market on social media and e-commerce, through the eyes of one of its new superstar employees, Mae.

Early in Mae’s employment, she gets called into HR because she failed to respond to a co-worker’s online request that she attend his Portugal-themed party. Mae had, years earlier, posted pictures of a trip to Lisbon on her Circle page, which led this co-worker to believe that she liked all things Portuguese, which, in turn, caused his turmoil when she ignored his party invite.

I tell this part of the story in response to an article I came across yesterday on Philly.com, entitled, How social media has changed the way co-workers bond (hat tip Eric Meyer). The article hypothesizes:

Social networking has made it easier to form personal relationships with co-workers. On sites such as Facebook and Instagram, where people share their likes and dislikes, family photos and new hobbies, people gain insight into colleagues that could provide the basis for forging stronger workplace bonds.

Which is true. But, with transparency comes responsibility. What had previously been a trivial interpersonal matter (a declined invite) becomes a potential HR matter. How much you permit your employees to connect on social media sites will, in part, depend in how much of their personal lives you want leaking into your workplace, balanced against the ease of connectivity and relationship formation.

Nevertheless, today’s ignored invitation could be tomorrow’s harassment complaint. There is no right or wrong answer to this question. It is a decision guided by corporate culture and risk tolerance. What is important, however, is to make the decision and communicate it to your employees in your social media policy, so that everyone understands your culture and its impact on your social media expectations and limitations.

Oh, and go read The Circle. It’s fabulous.

Why we put plaintiffs to their proof

Because of the relative newness of the issue, it always seems newsworthy when the NLRB issues a social-media decision. World Color (USA) Corp. (NLRB 2/12/14), however, is much ado about nothing, but nevertheless reminds us of the importance of the process of litigation to the outcome of litigation.

John Vollene, a press room operator at World Color and member of his union’s bargaining committee, made several posts on his personal Facebook page critical of his employer. Vollene was Facebook friends with several co-workers, including his shift supervisor, Arvil Bingham. Shortly after Vollene’s posts, World Color’s employees voted to decertify the union. Shortly thereafter, the company reassigned Vollene as part of a restructuring of its pressroom operators. When Vollene asked Bingham why he was being reassigned, Bingham implied that management knew about his Facebook posts.

The NLRB concluded that Vollene had not proven that he had not been reassigned in retaliation for his Facebook posts, which could have constituted protected concerted activity:

However, the record here does not include a printout of Vollene’s posts, and it provides scant evidence regarding their nature. It reveals neither that the posts concerned terms and conditions of employment, nor that the posts were intended for, or in response to, Vollene’s coworkers. The testimony indicates only that Vollene posted unspecified criticisms of the Respondent and unspecified comments about the Union over a period of 5 or 6 months, and that he responded to another person’s initial post. The record does not identify that individual either by name or as a coworker. Based on this limited evidence, we will not infer that Vollene’s posts amounted to protected concerted activity. That Bingham’s statement implied that the Respondent had reacted adversely to critical posts is insufficient to bridge the evidentiary gap here.

Do not read too much into this decision. An employee’s Facebook posts critical of his or her employer can constitute concerted activity protected by section 7 of the NLRA. In this case, however, the NLRB concluded that because there was no evidence presented of the specific posts at-issue, or how Vollene’s co-workers responded to them. Thus, Vollene had not proven his case.

I have little doubt that if Vollene had put on evidence of the specific posts, and his co-workers reaction to them, this case could have turned out differently. This case serves as a good reminder of why we, as employers and their lawyers, put plaintiffs to their proof. A lawsuit is merely a collection of unproven facts. No law has been violated until a plaintiff  proves those facts through evidence. If the plaintiff doesn’t have the evidence to support the alleged facts, the plaintiff loses. That’s what happened here, which illustrates the importance of the litigation process to the outcome of cases.

Mind your internal emails to avoid discrimination issues

Shazor v. Professional Transit Mgmt., Inc. (6th Cir. 2/19/14), interests me for two reasons. First, it discusses and applies a “sex-plus” theory of discrimination to save a plaintiff’s race discrimination and sex discrimination claims from the summary-judgment scrap heap. “Sex-plus” recognizes that race and sex are not mutually exclusive, and protects African-American woman as a class of their own. I commend Shazor to your reading list for its interesting narrative on this issue.

I want to discuss, however, the other interesting aspect of Shazor—the evidence the plaintiff used to avoid summary judgment. She submitted various emails between two corporate executives, in which they unflatteringly referred to her as a “prima donna,” “disloyal, disrespectful,” and a “hellava bitch.” Shazor successfully argued that these emails were code for “angry black woman” or “uppity black woman.” The court used these emails as prima-facie evidence of discrimination in support of her “sex-plus” claim.

Emails is a powerful communication tool. It’s also very permanent. I’ve been saying this about social media for years, but perhaps it’s time to remind employers that communication is communication, no matter how it’s transmitted. If you don’t want something to appear on the front page of the newspaper, or to be read in front of a judge or jury, don’t put it in writing. Don’t email it, don’t text it, don’t Facebook it, and don’t tweet it.

“I have a solution,” you say. “What about apps like Confide, which erases a text message as soon as the recipient reads it.”

While these apps seem like a perfect way to communicate under the radar, their use for business purposes gives me great pause. The intent of this class of apps is to delete communications. I could very easily see a court, confronted with evidence that people have this app on their iPhones and use it for business communications, have willfully destroyed evidence. Spoliation and evidence destruction discovery sanctions would result. For this reason, I believe that company mobile-device policies should police the use of apps like Confide, Snapchat, and their message erasing ilk. And, while your reviewing your policies, mix in some training for your employees about the responsible use of electronic communications.

Is obesity the same as a green mohawk?

It’s been a few months since I’ve written about the growing trend of plaintiffs trying to shoehorn obestity-discrimination claims under the Americans with Disabilities Act. At his Employer Handbook Blog, Eric Meyer brings us the story of Powell v. Gentiva Health Services, in which a 5’ 3”, 230 pound woman claimed that she was fired because her employer perceived her as disabled on account of her morbid obestiy.

The district court did not buy her argument, likening one’s obestity to a green mohawk:

Plaintiff’s argument improperly equates a physical characteristic (i.e., overweight status) with an impairment. However, plenty of people with an “undesirable” physical characteristic are not impaired in any sense of the word. To illustrate the point, suppose plaintiff wore her hair in a neon green mohawk. Such an unconventional hairstyle choice might be viewed as unprofessional, and might well impede her efforts to sell hospice services to physicians and senior living facilities, but it obviously is not a physical impairment. The same goes for weight. An overweight sales representative may have difficulty making sales if the prospective customer perceives her appearance to be unprofessional, but that does not render her weight a “physical or mental impairment” within any rational definition of the phrase. 

The court continued, however, by envisioning a scenario in which weight could be an ADA-protected disability:

Of course, … an employer may perceive an employee’s overweight status to constitute a physical impairment. For example, suppose an employer believes that an overweight job applicant cannot climb a ladder, or walk across a parking lot, or climb flights of stairs, and therefore does not hire the overweight individual for a job that requires such activities. That might give rise to “regarded-as” status for an ADA claim in the post-ADAAA world. But that is not what we have here.… Powell points to not a shred of evidence that Gentiva viewed her weight as a physiological disorder that affected any of her body systems.  

Here’s where I think this court got this issue wrong. If making sales is an esential function of the job (and, given that Powell was a salesperson, it’s safe to assume that makes sales was an essential function of her job), then I don’t see how making sales is any different than climbing a ladder, at least as far as the ADA’s “regarded-as” scheme is concerned.

Powell did not lose her claim because the ADA does not protect obesity. Powell lost her claim because she had absolutely no evidence that her employer considered her obese, let alone considered her weight in making its decision to fire her.

Whether or not the ADA protects obesity as a disability is an issue that the courts will debate for years. While there is no clear answer, given the breadth of the ADA’s coverage, employers take a big risk when firing an overweight employee because of his or her weight. So, what’s the easy answer on how to handle this issue? Don’t take appearance into account when making employment decisions. Hiring and firing should be image-blind, performance-only decisions. If you stick to that principle, the obesity-as-disability debate should never enter your workplace.