The wage and hour implications of employee electronic surveillance

Every now and again I come across a story that make me question how any in-house counsel blessed a workplace policy or practice.

The following story, taken from yesterday's episode of The Daily on the rise of workplace surveillance, is one of those stories.

Carol works as a Vice President for a bank. Like many white-collar employees these days, she's working remotely from her home. Pretty early on in her employment, she begins to notice that her paychecks are light. Then she figures out why.

Every 10 minutes at random points the company took a screenshot of her computer monitor and a photo of her face. The company was using that information to pay Carol (and every other worker) only for the minutes when they appeared be active according to the photos. If, for example, the photo happened to capture Carol during a moment of inactivity (for example, a 30-second interval when she went to get a cup of coffee), it would dock her for the entire 10-minute span. As you can imagine, the digital tracking actually missed a lot of Carol's work, including any work she did offline. She's working, but the company thinks she's not working, and it's going to dock for that any perceived increments of inactivity. 

There are two HUGE Fair Labor Standards Act red flags here.

Pro athletes should never get a pass on harassment

Kenny Lofton is one of the most beloved players in history of the Cleveland Guardians, née Indians. He spent the best years of 17-year career anchoring center field for the Cleveland teams that won six AL Central titles and earned two World Series berths. 

Post-baseball, Lofton founded Centerblock Asset Management LLC, an investment firm and NFT workplace. In addition to his corporate gig, it also appears that Lofton allegedly spends his time messaging women pictures of his Li'l Kenny on Instagram and firing employees to take issue with it.

“Gaslighting” in the workplace

“That’s not how I told you to complete that project. Why did you do it that way? It’s all wrong.”

“Why didn’t you show up to the meeting? Of course I invited you.”

“Harassment complaint? You never made any harassment complaint.”

These are all examples of gaslighting in the workplace.

Lessons from Platform Beer’s mass layoff

According to Scene Magazine, late last week Platform Beer Co. notified between 25 and 30 of its local brewery employees that their employment was no longer needed. They were laid off. 

That facility brews, tests, cans, packages, and warehouses most of Platform's offerings. The impacted employees were offered severance packages in accordance with their age and tenure. 

When I hear "mass layoff," I immediately think of the WARN Act. WARN stands for Worker Adjustment and Retraining Notification. It's the federal statute that requires 60 days' advance notice of mass layoff or plant closure (or 60 days' pay in lieu of the notice). But it does not apply to every mass layoff or plant closure, only those of a large enough employer that impacts a large enough number of employees.

WIRTW #638: the “DriveThru” edition

Episode 2 of Labor Relatedly, my new podcast endeavor with Mike VanDervort is live everywhere you listen to podcasts. In this episode we discuss the controversy surrounding the Deshaun Watson arbitration ruling, Chipotle writing a $20 million dollar check to settle a wage and hour case in New York, how the Duty of Fair Representation impacts the relationship between unions and employers, and what some common-sense labor law reform might look like.

Here's what I read this past week that I think you should be reading, too.

How do you respond when your employees are threatened?

Boston Children's Hospital has a scary situation on its hand. Its hospital staff has received aggressive phone calls, emails, and death threats. It's all in reaction to inaccurate information posted on conservative websites and shared across social media about its transgender surgery program.

The allegations are that its medical staff performs hysterectomies on girls under the age of 18. In reality, the hospital performs hysterectomies on patients age 18 and older, but not on children.

Boston Children's began treating transgender youth in 1998 and opened the first trans health program in the U.S. for adolescents in 2007.

Walmart wins discrimination claim brought on behalf of pregnant employees unable to work

Consider the following two policies:

• Employees injured on the job will be offered Temporary Alternative Duty ("TAD") — light duty that enables the injured workers to keep working and earning their full wages while complying with any relevant medical restrictions.

-vs-

• Pregnant employees with lifting or other physical restrictions related to pregnancy are required to go on an unpaid leave of absence, and no TAD is or will be made available.

In EEOC v. Walmart Stores East, the 7th Circuit Court of Appeals concluded that despite the existence of the former, the latter did not discriminate against Walmart's pregnant employees.