You learn something new every day in the field of employment law. As we close out January 2023, here are five interesting things that I’ve learned this month in no particular order:
1) THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (“EEOC”) IS ON FIRE
Over the years, there have been a number of employees and employers who have been so upset with the EEOC that they wished they could set the EEOC on fire (figuratively). However, on the evening of January 5th, two culprits broke into the EEOC headquarters in Washington, D.C. overnight and set the EEOC’s office on actual fire. They were arrested onsite. No motive has been reported yet for the arson. However, the fire did a fair amount of damage. According to Bloomberg Law, in order to allow the EEOC to conduct “water remediation efforts,” they had to convert its onsite live presentation on Artificial Intelligence (“A.I.”) to a virtual presentation set for tomorrow, January 31st.
2) FLORIDA EMPLOYEES WORKING REMOTELY ARE COVERED BY WORKERS’ COMPENSATION (SOMETIMES)
Is a Florida-based employee who is injured at home while working, entitled to workers’ compensation? I recently found the answer when I stumbled across a 2019 case called Sedgwick CMS v. Valcourt-Williams, 271 So. 3d 1133 (1st Fla. DCA 2019). In this case, Tammitha Valcourt-Williams, who was originally a Florida-based claims adjuster for her employer, worked remotely from her home in Sierra Vista, Arizona.
On April 27, 2016, Ms. Valcourt-Williams began her work day at home in her upstairs office. She decided to take a coffee break and went downstairs to her kitchen. She retrieved a cup from the cupboard and made some instant cappuccino. When she turned around, she tripped over her dog and fell landing on her right knee and hip, sustaining injuries. She reported the accident to her employer immediately and then returned to work. She filed a workers’ compensation claim.
The Judge of Compensation Claims determined that Ms. Valcourt-Williams’ injuries were compensable, concluding that the employer had allowed Ms. Valcourt-Williams to “import her work environment into her own home.”
The full First District Court of Appeal (13 judges) based in Tallahassee, Florida was called upon to decide the question. The majority of the court (11 judges), noted that the question was not whether Ms. Valcourt-Williams’ home became her work environment but whether her employment, wherever it was, “necessarily exposes [her] to conditions which substantially contribute to the risk of injury.”
The Court determined that the risk of Ms. Valcourt-Williams tripping her over her own dog existed before she took her job and it would exist after her employment ended (so long as she had a dog at home). As a result, the 11 judges found the risk of injury did not arise out of Ms. Valcourt-Williams’ employment and her claim should be denied.
The Court noted that there must be some connection between an employee’s employment and the injury or must have had its origin in some risk incident connected with employment.
However, the Court made clear that “None of this is to say, of course, that work-at-home arrangements immunize employers from workers’ compensation claims. Just as employer-premises accidents can have occupational causation, so too can work-at-home accidents.” The Court noted that if Ms. Valcourt-Williams suffered an injury, for example “from a risk her employment introduced-a repetitive stress injury from typing all day… It would be no answer for the employer to say she was hurt in her own home.”
3) MAKE SURE YOU CAN PROVE THAT EMPLOYEES ELECTRONICALLY SIGN IMPORTANT COMPANY DOCUMENTS
On January 4, 2023, the Florida Third District Court of Appeal, in GR OPCO, LLC v. Murillo, issued a decision that ruled on whether an employee had electronically signed an agreement to arbitration any employment disputes.
Ana Paolo Murillo sued her employer for violations of the Fair Labor Standards Act (“FLSA”), breach of agreement and other claims. Her employer moved to compel arbitration claiming that Ms. Murillo had signed an agreement requiring the parties to arbitrate all claims between them.
The case’s first stop was before a Miami-Dade circuit court judge. The company first provided the judge with a copy of the electronically signed agreement. However, Ms. Murillo responded with a signed declaration stating that she never signed the arbitration agreement and that the signature and IP address on the electronically signed agreement was not hers.
The trial judge held an evidentiary hearing on the matter where he observed all the witnesses as they testified. Based on their credibility, the trial judge found that Ms. Murillo’s testimony was credible and that she did not sign the arbitration agreement. The company appealed the decision. The appellate court ruled that the employer was not able to demonstrate that the trial judge erred since the company could not prove that Ms. Murillo had signed the arbitration agreement. As a result, the appellate court affirmed the trial judge’s decision that no valid arbitration agreement existed between the parties.
The moral of the story is that employers need to work with their IT departments to ensure that they can prove employees electronically signed their documents even if they contain an electronic signature. Otherwise, they may not be considered signed at all.
4) THE “ROUNDING THE TIME CLOCK” FALLACY
For my entire career, employers have often rounded non-exempt employee time punches to the nearest 15 minutes. I have consistently advised employers not to do this. Why? Because too many employees claim that they have been shorted on pay due to the rounding in favor of their employer. It also makes it more difficult to know exactly when employees began work and left work for the day.
I felt supported in what I thought was my sometimes lonely quest, when I recently read that Home Depot announced a change in its pay policy for hourly associates as of January 16, 2023. Based on the number of lawsuits in which Home Depot had been accused of purposely rounding down associates’ pay, Home Depot has now changed its practice to pay its associates to the nearest minute, as opposed to rounding to the nearest fifteen-minute mark.
I would encourage other employers to follow suit.
5) LET’S HAVE A CHAT
I recently decided to challenge ChatGPT to write me a limerick on employment law. If you don’t know, ChatGPT is an artificial intelligence program that was rolled out last November to answer inquires, requests to write songs, papers, stories, computer code, etc., as if it were human.
I was surprised that the A.I. program wrote the following limerick in less than five seconds. It wasn’t great, but it made me smile.
An employer who was feeling sly
Tried to make his employee’s life dry
But the law was quite clear
That workers must be treated fair
So the boss had to comply or say goodbye
Take a look at Maureen Dowd’s opinion on ChatGPT in Saturday’s New York Times. As she notes, “There’s keening that ChatGPT…will eliminate millions of jobs. Why hire a college graduate if a bot can do the same work faster and cheaper? No arguments about work-from-home rules, no more union fights. You don’t need to lure A.I. back into the office with pizza. Chat GPT opens a Pandora’s box of existential fears.”