Do you know the rules for paying remote workers for “downtime”?

Every 10 minutes at some random point that she couldn't anticipate, the company took photos of her and her work, a screenshot of whatever she was working on, and a photo of her face. And they were doing that to verify whether or not she was working.… The company was using that to pay Carol and the other workers only for the minutes when they appeared active.

If she was clicking away at a spreadsheet, doing demonstrable work, she was fine. She would be paid for that 10-minute increment. But as soon as she got a cup of coffee or answered the doorbell or went to the bathroom, she risked not being paid for that time.…

[E]ven if she had worked for 9 and 1/2 minutes out of 10 minutes, if that screenshot showed her inactive, if she was gone or distracted for that 30 seconds, she wouldn't be paid for that increment.

That's from The New York Times, describing the latest employer trend of monitoring remote workers and only paying them for the time during which the performance of actual work could be verified. And, if those remote workers happen to be nonexempt, that practice is highly illegal.

The Department of Labor just issued a Field Assistance Bulletin reminding employers on the proper payment of remote workers under the Fair Labor Standards Act.

Specifically:

• The FLSA requires employers to pay nonexempt employees for all hours worked.
• "Hours worked" is not limited solely to time spent on active productive labor but also includes time spent waiting or on break.
• Short breaks of 20 minutes or less (e.g., to go to the bathroom, get a cup of coffee, let the dog outside, or stretch one's legs) are generally counted as compensable hours worked.
• Longer breaks "during which an employee is completely relieved from duty, and which are long enough to enable [the employee] to use the time effectively for [their] own purposes are not hours worked."
• These rules apply regardless of whether the work is performed at the employer's worksite, at the employee's home, or at some other location away from the employer's worksite.

In other words, even if you catch your nonexempt employees "not working" during the workday, if a break lasts 20 minutes or less you still must pay them. It's non-negotiable under the FLSA. (Exempt employees are paid a salary which becomes owed in full as soon as he or she works just one minute in a work week.)

If you discover an employee abusing paid breaks or their salary status, your remedy is discipline or termination, not withholding wages.

No privacy for drug-test pees

Someone on Reddit asks: Is it legal for my new employer to watch my pee for a drug test?

I can’t speak for every state, but in my state the answer is an unequivocal “yes.” It’s perfectly legal to require the direct observation of an employee peeing for a new hire or workplace drug test.

Employee harassed after coming out at work loses harassment lawsuit

After an employee comes out at work as gay, he alleges that co-workers left him pink nail polish, a nail file, and bath bombs, that someone posted Bible verses on his desk, and that he was moved to an isolated corner of the office. 

Based on these facts, the 6th Circuit Court of Appeals affirmed the dismissal of the employee's sexual harassment claim.

WIRTW #660: the “Freckles” edition

Two weeks ago I shared the story of Freckles, the toad that my daughter rescued from our backyard. On our podcast — The Norah and Dad Show — we left you with a cliffhanger. Did Freckles live or die. On this week's episode we share Freckles' fate, along with the fate of Norah's high school mock trial team.

You'll find The Norah and Dad Show on Apple Podcasts, Spotify, Google Podcasts, Overcast, Amazon Music, in your web browser, and everywhere else podcasts are available.

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

Seminars and Webinars: Employee Handbooks

When was the last time you reviewed and updated your business's employee handbook? 

If your answer is, "I don’t know," "Longer than a year ago," or "What's an employee handbook and why do we need one?" then we need to talk.

The reality is that you need a customized and updated handbook that documents the guidelines and expectations between your organization and your employees. If you do not pay careful attention to your handbook's contents, you might violate the law, alienate employees, and invite costly and time consuming lawsuits.

Lucky for you, you have two upcoming opportunities to hear me speak on this important topic.

Post-termination diagnosis is insufficient to support ADA claim

Haley Hrdlicka, a 30-year General Motors employee, began having attendance problems after transferring to its Design Academy. Serious attendance problems. Dozens of absences in the four-month period from May – August 2019. A less-than-glowing performance review followed by an "Attendance Letter" (essentially a final written warning) did nothing to improve her attendance. So GM fired her. 

She unsuccessfully appealed her termination through GM's internal grievance process. During that process Hrdlicka was diagnosed with Persistent Depressive Disorder and a brain tumor. She then sued GM for disability discrimination stemming from the after-the-fact diagnosis.

What does an employer have to do to lose $366 million?!

$366 million dollars. That's how much a jury awarded Jennifer Harris, a Black sales manager targeted and then fired by FedEx after she complained to human resources that her boss discriminatorily demoted her. 

That's $1.16 million in compensatory damages and $365 million in punitive damages. 

The trial judge recently rejected FedEx's motion to reduce the punitive verdict as excessive and a violation of its due process rights.

The problem isn’t “fake” managers, it’s the poorly named “administrative” exemption

"Would you rather be a front-desk clerk or 'Director of First Impressions'? A barber or a 'Grooming Manager'?" CBS News posed this question, and concluded that employers use these fancy, inflated titles to avoid paying employees in full for their overtime work. 

"Title inflation," the article argues, is being used to deny overtime and steal wages from otherwise deserving employees.

WIRTW #659: the “99 problems” edition

I got 99 problems, but being a podcast guest ain't one.

I love the People Problems Podcast so much. And they must love me, too, since this is my third appearance as a guest.

This week's episode is all about dating at work. The conversation goes all over the place, including to a mafia bar in Chicago. You'll have to listen to the episode to hear all about the craziest experience of my legal career.

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

“Entitlement to FMLA leave” is not a prerequisite to an FMLA retaliation claim

The 6th Circuit revived the FMLA retaliation claim of an attorney fired immediately after she requested unpaid leave to care for her two-year old child at the start of the Covid-19 pandemic.

In mid-March 2020, Polina Milman, an attorney working at Fieger & Fieger PC, requested permission first for unpaid time off, and then to work remotely, to care for her two-year-old son who was exhibiting Covid symptoms and was already vulnerable because of a previous bout of RSV. The firm initially granted her WFH request. On her second remote workday, however, she received a termination letter, stating that she had refused to work because her "child had a cold" and "it was clear [she] had quit."

Union avoidance vs. union busting

"A company that opposes a union organizing and presents both sides of this complex issue is 'union busting.'" This is what one commenter wrote in response to my recent post about union organizing at Creature Comforts Brewing Co.

I could not disagree more. 

There is vast, substantive, and significant difference between union avoidance and union busting.

Lessons from coaching high school mock trial

When you try a case, there’s not much within your control. You can’t control the judge. You can’t control the jury. You can’t control your opposing counsel. Sometimes you can’t even control your own witnesses. But the one thing you can control is how well prepared you are, and you are so well prepared.

For the past four months I’ve been volunteering as one of the legal advisors for the Lake Ridge Academy Mock Trial team. That’s what I told my team the evening before their opening round of competition last Friday.

WIRTW #658: the “Toad Jesus” edition

On the latest edition of The Norah and Dad Show, we discuss Freckles, Norah's newly rescued-from-the-backyard pet toad, who may be sleeping or may be dead. Welcome to the first cliffhanger in the history of our podcast. Find us on Apple Podcasts, Spotify, Google Podcasts, Amazon Music, Overcast, your old-fashioned browser, and everywhere else podcasts are available.

Here's a small taste.

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

Update on Creature Comfort Brewing’s union organizing

Last week I reported that the employees of Creature Comforts Brewing Co. formed their own independent labor union, the Brewing Union of Georgia (aka BUG) and announced their intent to unionize their workplace.

A lot can happen in a week.

Offensive social media posts doom airline employee’s discrimination claim

"If I were Black in America, I think I'd get down on my knees every day and thank my lucky stars that my ancestors were brought over here as slaves."

"Have you lost your cotton pickin' mind?"

"Too many [blue-eyed people] are reproducing with Brown Eyed People."

Those are three examples of Colleen Koslosky's (a former American Airlines customer service agent) Facebook posts that went viral and caused her employer to fire her.

She claimed the airline fired her because of her disability — nerve damage and edema in her leg — based on its prior denial of a reasonable accommodation. The employer, on the other hand, argued that it properly fired her after Koslosky's posts went viral, customers complained, and employees refused to work with someone they believed was "racist." 

The 3rd Circuit Court of Appeals had little difficultly affirming the dismissal of Koslosky's lawsuit.

She … claims that a male American customer service employee who was not disciplined for his social media posts disparaging Trump voters — calling them "ignorant rednecks" and "uneducated racist white people." Koslosky does not argue American management knew about her colleague's inflammatory social media posts. This is dispositive. …

As Koslosky points to no evidence of pretext, we are thus left with one conclusion: American fired her because her racially insensitive social media posts violated its policies and generated an outcry from employees and customers alike. Because this is a legitimate justification for her ouster, we are not persuaded that the company violated any law here.

This employee had no business keeping her job or winning a discrimination lawsuit. Employees are absolutely responsible for what the post on their personal social media, and need to understand that their employer can, should, and will hold them accountable when warranted. In this case, it was warranted. 

The BIG risk of misclassifying employees as independent contractors

A national auto parts distributor has reached a settlement with the Department of Labor to pay a total of $5.6 million in back pay and liquidated damages (plus interest) to 1,398 drivers misclassified as independent contractors. The payments to the individual drivers are as low as $40 and as high as more than $120,000.

WIRTW #657: the “Let me buy you a beer” edition

From Jan. 30 – Feb. 1, the Ohio Craft Brewers Conference is taking place in Cleveland. My firm and I are playing a prominent role. 

• On Jan. 30 we are sponsoring the opening reception at Forest City Brewery, from 5:30 - 7 pm. If you've never been, it's an amazing space, a restored 19th century brewery building. It has the oldest (and, imho, most beautiful) beer garden in Ohio, and one of the oldest in the nation … although it might be a tad cold to fully enjoy it. Forest City also produces some of the best beer in NE Ohio — I recommend the Opening Day IPA and the Hootenanny (a kölsch). Finally, Apostle Jones, a local rock and soul band, is providing the musical entertainment. They are not to be missed. Look for me at the Wickens Herzer Panza table (where we'll have some nice giveaways) or milling about the brewery. Stop and say hi and I'll be sure to buy you a beer. This is an open event and you do not have to be registered for the conference to attend.

• On Feb. 1, at 11 am, I am speaking in the Fundamentals Room on Crafting Your Craft Brewery’s Employee Handbook. 

I hope to see you there. Cheers!

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

What does Creature Comfort’s union announcement mean for your craft brewery?

The employees of Creature Comforts Brewing Co. recently held a rally to announce their intent to form a labor union. They also announced the formation of the Brewing Union of Georgia, an independent union created by the brewery's employees with the stated goal of spreading their movement across their state. Despite the union's "independence," it has received assistance and guidance from assistance from the United Campus Workers of Georgia and the Workers Center at the Economic Justice Coalition.

This is HUGE news for the craft beer industry.

Dress codes and gender biases

Women are prohibited from showing their bare arms.

Women are required to cover their dress with a second layer.

These are two new rules the Missouri House of Representatives enacted for its current term. It did not enact any new dress code policies for men. That's a big discriminatory problem. 

Dr. King’s struggle has not ended

“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”