Avoid “FLSA roshambo” to win off-the-clock overtime claims

Defending claims for off-the-clock work is one of the most difficult tasks employers face under the Fair Labor Standards Act. An employee (or worse, group of employees) says, “I (we) worked, without compensation, before our shift, after our shift, or during our lunch; pay me (us).” Often, these employees have their own personal, detailed logs supporting their claims. And the employer has bupkis. It then must prove a negative (“You weren’t really working when you say you were”), which places the employer in a difficult and often unwinnable position. It’s a wage-and-hour game of rock-paper-scissors, where paper always beats air.

When we last examined Allen v. City of Chicago—a case in which a class of Chicago police officers claimed their employer owed them unpaid overtime for their time spent reading emails off-duty on their smartphones—an Illinois federal court had dismissed the claims, holding that most of the emails were incidental and non-essential to the officers’ work, and, regardless, the employer lacked specific knowledge of non-compensated off-duty work.

Last week—in what is believed to be the first, and only, federal appellate court decision on whether an employer owes non-exempt employees overtime for time spent off-duty reading emails on a smartphone—the 7th Circuit affirmed [pdf].

Listen to me on the Talent10x podcast discuss the current state of LGBTQ discrimination

I have enjoyed a long and fruitful relationship with Workforce Magazine. I’ve been blogging at workforce.com for the past five-plus years. I write a monthly column for the magzine. And, I serve on its editorial advisory board. Now, you can also add “podcaster” to my Workforce CV.

WIRTW #470 (the “lot was rocked" edition)

’Nuff said.

Here’s what I read this week:

Would you let your employer microchip you?

Our family dog, Loula, is microchipped. Our vet offered it to us as a service when Loula first joined our family. It provides some peace of mind in the sad event that Loula goes missing and ends up in a shelter or vet office. They would be able to read the rice-grain RFID chip embedded in her leg, discover that she belonged to us, and return her.

Loula, however, is a dog, she’s not an employee. Which is why I’m troubled that a Wisconsin employer has decided to offer microchip implants as a “service” to its employees.

Is joint employment the issue that unites our divided government?

I cannot recall a time when our government has been more divided across ideological and party lines. (I don’t count the early 1860s, because that’s not a time a can remember.) Thankfully, an issue has come along to build a peace bridge over the streets and through the halls of Washington D.C.

This issue—joint employment, via the Save Local Business Act [pdf], which clarifies that two or more employers must have “actual, direct, and immediate” control over employees to be considered joint employers.

NBC reignites privacy debate by requiring social-media passwords of job applicants

“Those who cannot remember the past are condemned to repeat it.”  (George Santayana)

It’s been eight long years since Bozeman, Montana, set the internet on fire by requiring that job applicants for municipal positions turn over passwords to their personal social media accounts as part of the application process. In the wake of that story, states rushed to introduce legislation prohibiting this practice; many succeeded. And, the story more or less died.

Thank you, NBC, for reigniting it.

Justice Department takes a stand in favor of LGBTQ discrimination

LGBTQ prohibitions continue to make headway in the courts. While Congress has remained silent on the issue, more and more state and federal courts hold that the law’s existing prohibitions against sex discrimination implicitly cover sexual orientation and other forms of LGBTQ discrimination.

The latest appellate court to take up this issue in the 2nd Circuit, in Zarda v. Altitude Express. Just last week, the Department of Justice filed its amicus brief [pdf] in this case. Yet, in that brief, the DOJ argued that Title VII’s prohibition against sexual stereotyping as sex discrimination does not include LGBTQ discrimination. This position advanced by the DOJ is contrary to that already espoused by the 7th Circuit, many district courts, and the EEOC.