Granting Non-Exempt Workers After-Hour Access to Company’s E-mail System: Are You E-mailing Your Way to a Wage and Hour Lawsuit?

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Betty’s at the dinner table with family, talking about her day, savoring her mashed potatoes when . . . flash—the phone lights up. Work e-mail. She reads it, steps away from the table, and starts drafting a response. Fifteen minutes later, she fires it off and returns to the dinner table.

Same evening. Betty’s getting ready for bed. She cracks her book open, trying to wind down for the night when . . . flash. Again, the phone lights up. Work e-mail. It could wait until tomorrow but she’d rather get a head start (and show her boss just how diligent she is). She thinks about the proper response, cranks out another e-mail, and shoots it off. Fifteen more minutes.

It is now early morning. The alarm rings, she hits snooze and (like many of us) reaches for her closest bedside companion . . . Mr. Smartphone. And . . . you guessed it. Another work e-mail. Her morning is stacked so she wants to clear up her to do list. This time, she quickly disposes of the message with a five-minute reply.

For many of you, the hypothetical situation above probably looks more like reality. Technology has consistently blurred the line of demarcation separating work and non-work time. This has, in turn, made it increasingly difficult to accurately account for compensable time—which, under the Fair Labor Standards Act (FLSA), includes work “permitted” by the employer.

So, what’s the problem? Well, it depends on which employees we are discussing.

Are Your Employees Naughty or Nice?

By Stearns Weaver Miller on December 7, 2015 Posted in Employee & Management Counseling

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As I was recently working on my Christmas “to do” list while singing along to “Santa Claus is Coming to Town,” the lyrics “He’s making a list, and checking it twice, Gonna find out whose naughty or nice,” reminded me that December is not only the holiday season, but is also the performance evaluation season for many employers.

I believe I just heard a collective groan from this post’s readers! Yes, the evaluation process is time consuming and for many, about as much fun as a trip to the dentist. But evaluations can be an integral component of a Company’s performance management system for its employees. Evaluations identify where an employee excels, meets expectations, and needs improvement. In the event that the employee is terminated for performance and then pursues a legal claim, the evaluations will be key pieces of evidence, supporting (hopefully) the Company’s reason for its decision.

Employees are Taking Back Thanksgiving!!!

By Stearns Weaver Miller on November 24, 2015 Posted in Employee Benefits & Compensation

Employees are taking back Thanksgiving!!! What impact will that have on your business if the trend continues? Is the trend driven by a return to more traditional values surrounding the Thanksgiving holiday or is it just plain good business sense?

Employers are asking themselves these questions ever since Recreational Equipment, Inc., otherwise known as “REI,” the outdoor camping equipment retailer, broke new ground this year by not only declaring that all 143 of its stores around the country will be closed on Thanksgiving – but also on Black Friday! And, its employees will be paid for not coming to work on Friday, in the hope that they will spend time with their families in the Great Outdoors. REI’s CEO, Jerry Stritzke, informed REI employees of the company’s decision in a letter, noting that the decision was based on the company’s 76-year tradition promoting a life outdoors.

The big-box stores first started encroaching on Thanksgiving in 2010, and the “Black Friday Creep” has taken on momentum ever since. Who hasn’t seen the crowds bursting through doors and fighting over the last big-screen TV??? Just watch this YouTube video for a cringe-worthy reminder of how bad things have gotten. As retailers began to open their stores earlier and earlier on Thanksgiving day, people, particularly employees who were dragged away from their Thanksgiving meals and family, have been getting tired and frustrated with the encroachment of the holiday shopping season into Thanksgiving.

So Boring but So Important – Vendor Service Agreements

By Sharon Quinn Dixon on November 18, 2015 Posted in Employee Benefits & Compensation, Employment Contracts & Corporate Issues

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You just finished the torture of the RFP process for a new vendor for your benefit plan (doesn’t matter what kind of plan – 401(k), group health plan, section 125 plan, stock purchase, etc.). You carefully compiled all the information from the 100-page responses, checked the references, asked pointed questions during the in-person interviews and guided the committee through the final vendor choice. After several months of work, you’re ready to begin your new partnership. Congratulations! Let’s get going.

But, wait! Your vendor sends you its multi-part services agreement. You’ve really had it with the whole process by now and you’re tempted to just sign it and send it back that day. You think – these are all standard documents anyway, aren’t they? Think again! They are only standard documents if you sign the first version the vendor offers to you.

Beer & French Fries – The Perfect Game Day Snack or Important HR Reminders?

By Stearns Weaver Miller on November 3, 2015 Posted in Discrimination & Harassment

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It may be 2015 but sexual harassment and religious discrimination are alive and well. Just ask the potato packers at Smokin’ Spuds, Inc. and the beer truckers at Star Transport. The EEOC just announced successful resolutions in cases against these companies. Perhaps more interesting than the spuds and the six packs are the facts which may prove cautionary for other employers.

Star Transport fired two workers who refused to transport beer because they said it violated their religious beliefs – they are Muslim. Notably, the company provided no discrimination training for its HR personnel. Really?

Smokin’ Spuds’ management apparently turned a blind eye to years of sexual harassment of female employees by a supervisor at one of its potato packing plants. What’s worse, the company fired some of the women who complained of harassment. Now, in addition to the attorneys’ fees and monetary relief they’ve incurred, Smokin’ Spuds must abide by a three year decree enjoining the company from further illegal employment practices, requiring extensive training for employees, supervisors and HR, obligating the company to send “letters of regret” to the affected women, requiring the company to post notices of employees’ rights to be free from harassment and retaliation and subjecting the company to oversight by an EEOC monitor who will ensure the company’s compliance with the decree. Speaking of regret, I’m sure company management regrets not having a more robust anti-discrimination/anti-harassment policy.

The Pros and Khans of Good Workplace Management

By Stearns Weaver Miller on October 27, 2015 Posted in Employee & Management Counseling, Employee Handbooks & Policies

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Recently, I had occasion to watch Season 1 of the Netflix series, Marco Polo. The plot is based on the 13^th century Mongolian Empire. However, to an employment lawyer, it all seems like a page out of an employment law primer.

The main protagonist (read, disgruntled employee), Marco Polo, is indentured into servitude by his merchant father, who leaves Marco as “a prisoner and a guest” of the Mongolian Emperor, Kublai Khan. Though captive, Marco spends his days being trained in the arts of the sword and calligraphy by the grace of his master, the Khan.

As the story unfolds, I found myself playing a game of “Marco Polo” with my TV screen. Like children playing in a pool, every scene and plot twist challenged me (“Marco!”) to pick out the analogous workplace scenarios (“Polo!”). Here are some of the show’s do’s and don’ts that can be carried over into the workplace.

Is “Paid Leave” on Florida’s Horizon?

By Andrew Rodman on October 20, 2015 Posted in Disability & Leave, Employee Benefits & Compensation

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Did you watch the Democratic presidential debate on October 13, 2015? If so, you heard the candidates make many promises, among them paid family leave.

True, we already have the FMLA, but it only requires unpaid leave, it only applies to employers with 50 or more employees, and it only applies to employees who have worked for 12 months and 1,250 hours in the 12 months preceding leave.

President Obama also signed an Executive Order on September 7, 2015, requiring federal contractors to allow employees to accrue paid sick leave for specified circumstances.

Proponents of paid leave want more.

According to Bernie Sanders, “every other major country” has paid family leave. On that point, perhaps he’s right. In 2014, the International Labor Organization (an agency of the United Nations) revealed that the United States is among a very small handful of countries that does not provide paid maternity leave. We share that “distinction” with countries like Papua New Guinea.

Don’t Fall Asleep Just Yet… A “New Test” to Decide When Interns Should be Paid

By Ingrid Ponce on October 14, 2015 Posted in Wage & Hour/Employee Classification

The steady stream of cases filed by unpaid interns claiming to be owed minimum wage and overtime compensation under the Fair Labor Standards Act remains on the rise after highly publicized court decisions and settlements. However, courts continue to struggle with how to determine if and when an intern should be paid for work under a law that was passed more than 70 years ago.

The Eleventh Circuit Court of Appeals became the most recent federal appellate court to chime in on this subject in a case arising out of Florida.

The Florida case involved a group of graduate students studying to become licensed nurse anesthetists (yes, the ones who help put people to sleep – clinically speaking, of course). These students were enrolled in a Master’s program, which required participation in at least 550 surgical procedures before being eligible for licensure in Florida. Not surprisingly, this requirement was imposed to promote patient safety by ensuring students were able to perform the essential functions of their job once they joined this field. The interns sued claiming they should be paid for their 40-50 hour work weeks arguing that it was the medical clinics that primarily benefited from this free labor, not the interns. The Trial Judge ruled against the interns. On appeal, the 11^th Circuit Court of Appeals did not decide whether the interns should be paid. Instead, it sent the case back to the Trial Judge to decide the issue using a different legal standard. The 11^th Circuit rejected the test utilized by the U.S. Department of Labor (DOL), which called for a rigid approach to the inquiry, in favor of a more flexible standard in line with the purpose behind modern internships.