New Jersey Supreme Court Rules on Significant Unemployment Insurance Eligibility Question

In the course of the employer counseling work that I do in my labor and employment practice, clients ask a lot of questions regarding New Jersey’s Unemployment Compensation Law, especially about the grounds that are available to an employer to challenge employee eligibility for unemployment benefits.

One of the most common grounds for employer challenges is that the employer voluntarily left his/her employment without good cause for doing so. The New Jersey Supreme Court issued an interesting decision in McClain v. Bd. of Review, 2019 N.J. LEXIS 538 (2019) regarding that question which presented a novel twist: what happens to eligibility when an employee resigns his/her former employment to take a new job, but that job opportunity is thereafter lost through no fault of the resigning employee?

The New Jersey Supreme Court took up the foregoing issue because two different appellate panels when faced with that question reached divergent conclusions.  In the McClain case, the appeals panel held that there was no disqualification of benefits because the job offer that was presented to McClain that prompted her resignation was rescinded through no fault of McClain.  In the second case, Blake v. Bd. of Review, another appeals panel ruled to the contrary, declaring that, to be eligible for unemployment benefits, the employee had to actually begin working for the new employer before losing the job.  Since that did not happen because the job in that case was also rescinded pre-employment commencement, there was no eligibility for benefits.

In finding that McClain and Blake was eligible for benefits, the New Jersey Supreme Court focused on a part of the unemployment compensation law that made employees eligible for benefits where the employee worked for a substantial period of time with one employer and then left for an equal or better opportunity with another employer but was later terminated shortly after starting that employment.  While noting that both appeals panels presented plausible interpretations of the foregoing part of the unemployment compensation law, the Court ultimately viewed the McClain’s panel’s decision as more appropriate because it was in line with the remedial purposes of the law, which required a liberal analysis in favor of benefit eligibility. That decision was likewise more consistent with the reason for including the foregoing provision in the unemployment compensation law, which namely was to allow for benefit eligibility where employment was lost due to no fault of the employee.

The McClain decision shows that, while not every employer challenge to an unemployment compensation petition will succeed, it nevertheless can be a worthwhile endeavor because the law includes a number of grounds where eligibility for benefits can be denied. That can work to the benefit of the former employer to ensure that wrongful credits for the payment are not taken against their employer unemployment compensation account rating.


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.


New Jersey Governor Signs New Minimum Wage Law

One of Governor Murphy’s key electoral platforms during his gubernatorial campaign was his goal to increase New Jersey’s minimum wage.  That electoral promise became a reality just a few short weeks ago. On February 4, 2019, Governor Murphy officially signed into law the New Jersey Minimum Wage Bill. The law will ultimately increase the minimum wage rate in New Jersey from $8.85 (currently) to at least $15.00 by 2024. The wage increase progression will be as follows:

  • At least $10/hour by July 1st, 2019
  • At least $11/hour by January 1st, 2020
  • At least $12/hour by January 1st, 2021
  • At least $13/hour by January 1st, 2022
  • At least $14/hour by January 1st, 2023
  • At least $15/hour by January 1st, 2024

Most notably, the above progression and schedule does not apply to very small businesses, defined as employers with five or fewer employees. Such employers will not have to pay $15.00 an hour to their employees until 2026. Further, the law includes a provision allowing employers to take a “tip credit” against their minimum wage obligations up to a certain level but ultimately the hourly rate earned by the employee must still reach whatever the then mandated minimum wage level is at that time. Obviously, the first compliance date of which employers must be immediately aware is July 1. Prior to that time, employers must take the necessary internal steps of ensuring that all employees are receiving this upgraded minimum wage by that required date.  Thereafter, employers will then need to ready themselves for the next increase happening approximately six (6) months later raising the minimum wage again. With all the graduated changes under the law, employers would be wise to calendar these important dates and proactively ensure that your workplace complies with these new evolving minimum wage requirements.


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.


Third Party Harassment and the Law

Whenever I conduct anti-harassment training for employers, one of the concepts I address is the employer’s obligation to protect employees from sexual and other forms of harassment by third parties who are neither employed by, nor affiliated with, the employer but who are in regular contact with the employer’s employees. Recently, in Hewitt v. BS Transportation of Illinois, No. 18-712, 2019 U.S. Dist. LEXIS 6407 (E.D. Pa. January 10, 2019), a federal judge was unwilling to dismiss a claim filed by an employee against his employer alleging that his employer failed to take effective corrective action to address harassing conduct happening to the employee at the hands of an employee of one of Defendant’s customers.

As I explain during my trainings, even though third parties such as the customer in Hewitt are not technically under the control of the employer, the employer’s duty to provide a workplace free of harassing conduct extends to making sure that visitors, vendors, or other third parties do not engage in harassing conduct against company employees.

In Hewitt, Plaintiff claimed that while loading fuel at a customer’s site during the course of his employment transporting fuel for his employer, a customer’s employee made sexual advances towards him, including grabbing Plaintiff’s buttocks, shoving him into the trailer of his freight car, and asking him if he “liked that?” According to Plaintiff, he demanded that his employer address the issue, but it did not do so adequately because, though advising the customer to address the issue, the harassment nevertheless continued.

The employer sought to dismiss the harassment allegations lodged against the company by arguing that, because the harassment happened by a non-company employee, there was no liability under the federal Title VII law. The court rejected this argument. While recognizing that the issue was one of first impression in this federal appeal circuit, the district judge nevertheless refused to dismiss the harassment charge because appeal courts in other circuits have in the past allowed such third party complaints, reasoning that where the employer has knowledge of the harassment against the employee, it must do something to investigate and stop it consistent with the requirements of Title VII.

In the current “Me Too” age, employers are wise to understand the full scope of their obligations to prevent harassing conduct towards its employees, and this duty includes addressing employee complaints about harassing conduct of third parties where the conduct detrimentally impacts the working environment for the company employee. Accordingly, with the new year just beginning, it is a prime opportunity for employers to reeducate its workforce through trainings about both the evils of harassment, and on the legal duties imposed upon employers to provide workplaces free of such illegal conduct.


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.


Dress Codes and Docking of Pay

When I examine employee handbooks as part of my legal review of such documents, a frequently seen policy involves dress codes and the inclusion of possible employee sanctions for not following such a policy.  Most policies I review inform employees that if they fail to follow the dress code they will be sent home and not be paid for the time it takes them to return to work.  Are such policies legal?  The answer may surprise you.

As such policies apply to non-exempt hourly employees, not paying for the time spent away from work while bringing their attire in line with company policies is indeed a legally appropriate sanction.  Why? Because by their very status, hourly non-exempt employees get paid for only actual time worked.  Thus, if a Company wants to dock the offending employee wages as a sanction for violating a dress code policy, there is no violation of wage and hour laws: the employee simply clocks out and clocks back in when returning in the proper work attire and does not get paid for the time he/she is not working.

On the other hand, for exempt employees, these same rules do not apply.  Exempt employees get paid a weekly or bi-weekly salary, and so long as the employee performs services at any juncture of the work day the employee is entitled to be paid the daily portion of his salary for that day.  So, if the exempt employee is found to have violated a dress code policy after already performing work on a particular day, the employee must be paid that entire day’s salary even if sent home and told to return in suitable clothing.

Moreover, be aware that there are very strict rules for deducting any monies from the salary of an exempt employee, and the allowable grounds for making such deductions typically involve the violation of serious workplace rules.  Now, here is another legal catch-even if the employer has grounds for sanctioning an exempt employee by withholding a portion of his/her salary as punishment, any deduction that is for less than a full day’s pay is illegal.  Thus, in our hypothetical, not only would a deduction from pay  not be warranted because dress code violations are usually not serious enough to meet wage and hour requirements, but deducting pay for only the brief time out of work to correct the problem also does not satisfy the full day deduction rule.  Thus, while even exempt employees can be sanctioned for violating dress codes, docking pay is not going to be one of those options in most situations.

As this example shows, sometimes wage and hour rules can create unexpected traps that an employer can easily fall into, and not realize there has been a legal violation.  Thus, anytime your business is thinking about making disciplinary deductions from pay, make sure you consult with an experienced employment lawyer first to avoid such unexpected wage and hour pitfalls.


5 New Year’s Resolutions For Your Workplace In 2019

With 2019 around the corner, employers are presented with a wonderful opportunity to review internal policies/procedures and hopefully help avoid future workplace legal problems. Here are five suggested New Year’s Workplace Resolutions for 2019.

  1. When was the last time your employee handbook was reviewed and updated? Policies and procedures need to be revised periodically to keep current with ongoing changes in the law, especially in a place like New Jersey, where it is frequently the case that new laws and decisions impose new legal requirements. In that regard, remember you now need a policy regarding New Jersey’s Paid Sick Time Law that went into effect this past October! Therefore, 2019 presents a great opportunity for employers to review handbook polices and bring them up to speed with any recent legal changes that impact your workplace. Alternatively, if you do not have one yet, the upcoming new year of 2019 provides a wonderful chance for your workplace to reap the benefit of having all relevant workplace policies stored in one collective document.
  2. When was the last time your job descriptions were reviewed and updated? Job descriptions are very important, especially in gauging compliance with mandated accommodation requirements for persons with disabilities under both federal and state discrimination laws. Ask yourself: do your job descriptions accurately reflect what an employee actually does in their jobs today? Because courts often rely on how an employer defines the essential job functions of an employment position in assessing disability discrimination and failure to accommodate issues, it is important that employers maintain updated job descriptions so there will be a point of reference if any issues arise as to what the essential functions of a job position are for accommodation purposes. Moreover, just like employee handbooks, if you do not have job descriptions today, the beginning of the upcoming year is a good time to commence preparing them.
  3. When was the last time you conducted anti-harassment training? With the Me Too Movement and other recent societal trends in this area, employers must be proactive in ensuring that workplaces are free of harassment and discrimination, and conducting yearly training in this area is an excellent preventative tool for ensuring your anti-harassment and anti-discrimination polices are enforced and followed.
  4. When was the last time you conducted an audit of your payroll practices? A good part of my practice this year has been representing clients in state and federal wage and hour audit proceedings so it is good to be proactive in aggressively monitoring payroll practices to ensure audits do not find problems with such practices. One of the chief concerns to examine here is ensuring that all your employees are properly classified as exempt versus non-exempt employees for purposes of their proper compensation under federal and state wage and hour laws. It is always a good idea for an employer to do a quick review of employment classifications each year in case changes need to be made based upon any modifications in employee job responsibilities. In addition, please remember that, as of January 1 of each year, New Jersey’s minimum wage rate might be adjusted upwardly automatically based upon any increase in the consumer price index as of September 30 of the prior year. Thus, it is important that you properly keep track of any upcoming changes in New Jersey’s minimum wage.
  5. Are you properly performing background checks on current and prospective employees? Remember, there are strict requirements concerning how such background checks are conducted under not only the Fair Credit Reporting Act but also under relevant federal employment discrimination laws such as Title VII. Just a few years ago, the United States Equal Employment Opportunity Commission issued a detailed compliance guidance on how the results of a background check can be utilized in assessing a person’s suitability for employment, so it is important that all background check policies meet these requirements. Similarly, if you as an employer conduct your own background checks, and still request that employees and prospective employees provide private password protected information for their social media sites as part of that examination, such a practice is illegal under New Jersey Law. Therefore, it is critical that background check policies be modified to eliminate any potential violation of this limitation under New Jersey Law.

In sum, the upcoming new year provides a wonderful opportunity for employers to proactively evaluate internal policies and procedures to make 2019 a legally problem free year in your workplace. An experienced labor and employment attorney is a valuable asset in conducting these types of internal policy examinations to effectively minimize possible legal exposures.

Happy Holidays and Healthy New Year to All!!


Love is in the Air, But Should It Be in the Workplace?

A question that I frequently receive in my practice is:  should a company implement any sort of dating policy for employees, or even go so far as to actually ban such relationships totally among its employees?

As hard as it might be to believe, it was not long ago when such policies prohibiting dating amongst employees were common in many workplaces. Over the years, with the recognition that employees are spending so much of their time at work today, employers began to acknowledge the practicalities that romantic relationships can often develop between employees spending so much of their waking hours around one another. Ultimately, most employers came to accept the realities of such workplace romances.

At their root, these prohibitory policies were designed to control (in some way) the potential damage that could occur to the “business” relationship between such employees if the romantic relationship fizzled and ended.  Such policies were also designed to eliminate the always thorny situation of a supervisor becoming romantically involved with a co-worker over whom there was supervisory responsibilities.  In today’s current business climate where we are seeing an increase in sexual harassment complaints, should companies bring those discarded anti-dating polices back as a further means of preventing possible harassment claims in the workplace?

As I frequently advise my clients, the difficulties of enforcing anti-dating rules in the workplace today make me question the wisdom of implementing an outright ban on such dating.  Nevertheless, employers are wise to adopt a policy alerting employees to the fact that, while workplace relationships are not prohibited, the company’s anti- harassment policy still applies to protect employees when romantic relationships are pursued by a co-worker that are unwelcome.  Employees should likewise be reminded that the right to say “no” is to be respected, and when it is not, there will be consequences under the Company’s anti-harassment policy. Finally, it is also beneficial for employers to let employees know that, in cases where there is a supervised-supervisor romantic relationship, the supervised employee will be reassigned to another supervisor in order to eliminate potential claims by other supervised employees of favoritism and the possible negative fallout and tension that could happen when the romantic relationship ends.

While it might be hard to stop romantic relationships from happening in the workforce, implementation of a sound dating policy can assist in controlling any negative impact that such relationships could have on your business.

One Strike and You’re Out-Single Racial Slur Can Create Hostile Work Environment

Everyone knows, or hopefully should know, that Title VII of the Civil Rights Act of 1964 protects employees from encountering a hostile work environment due to their race. What many may not know is that there is another federal law that also prohibits racial discrimination in the form of hostile work environment. That statute, §1981 of the Civil Rights Act of 1866, was the subject of a significant recent decision from the Third Circuit Court of Appeals that addressed what legal elements must be established in order to prove a hostile work environment claim under § 1981. Employers are wise to heed the edicts of this decision because it has expanded the potential situations where a racially hostile work environment can be established under this law.

In Castleberry v. STI Group, No. 16-3131 (3d Cir. July 14, 2017), two African-American male employees worked as general laborers for the defendant company. They claimed that while working on a fence-removal project, their supervisor threatened to fire them if they “n….r-rigged” the fence. This incident was confirmed by other coworkers and reported thereafter by the employees to a superior. Two weeks later, the two African-American employees were fired without explanation, but were subsequently rehired, only to be fired again, this time because of a “lack of work.”

The African-American employees subsequently filed suit alleging harassment, discrimination, and retaliation in violation of § 1981. The trial court dismissed the employees’ harassment claim because it determined that the facts as pled in the plaintiffs’ complaint did not support a finding that the harassment was “pervasive and regular.” This ruling was not at all surprising because ordinarily in order to prove a hostile work environment under current law, more than a single incident is required to give rise to a potential legal claim. That is how most courts, including in this judicial circuit, have read the requirement of “severe and pervasive.”

An appeal was subsequently taken to the Third Circuit Court of Appeals. The Court determined that it was error for the complaint to have been dismissed. Clarifying its past decisions in this area, the Court held that, in some circumstances, a single incident can be severe enough to contaminate a workplace environment in violation of the requirements of § 1981. In order for a single incident to serve as grounds for a claim of hostile work environment under this law, the Third Circuit explained that the incident must be so “extreme to amount to a change in the terms and conditions of employment.” Thus, not every incident will be enough to meet this new standard, though the decision unfortunately does not provide much clarity at all as to what such circumstances must be to ultimately meet this standard.

The instant decision certainly creates a precarious situation for employers. While ultimate success in each case of this kind will often depend heavily upon the facts giving rise to the case, this decision certainly provides a strong incentive for employers to continue to implement strong anti-harassment policies and training so that everyone understands that zero tolerance of any racially intolerant or similar inappropriate comments is the rule in your workplace.  Otherwise, you could learn the hard way as the employer in this case did that there are certain pernicious comments that should never be uttered in any workplace.0

Paid Break or Flex Time?

When is an employee entitled to be paid for taking a break at work? That was the question that the Third Circuit Court of Appeals had to address in the recent case of Secretary United States Department of Labor v. American Future Systems, Inc., No. 16-2685 (October 13, 2017). In this case, the Third Circuit had to decide whether employees of the defendant company were entitled under the Fair Labor Standards Act (“FLSA”) to be paid for periods of time of 20 minutes or less when they were relieved of all work-related duties. In a significant victory for employees, the Third Circuit said that these employees were indeed entitled to such wage payments.

Defendant employed sales representatives who were paid a base hourly wage and qualified for bonuses and additional compensation based upon work they performed while logged on to their work computers. In 2009, defendant eliminated its existing policy allowing such sales reps to take two 15 minute breaks per day. Under the company’s new policy, employees were allowed to determine the frequency, length and time and duration of the breaks. While employees could take breaks for any reason, defendant only paid such sales rep employees for breaks lasting under 90 seconds.

The United States Secretary of Labor (“DOL”) brought suit against the defendant claiming the lack of payment for any breaks that were less than 20 minutes long violated the FLSA. This was based upon the DOL’s long-standing bright line rule that all breaks taken by employees for under 20 minutes required payment under the FLSA. The defendant attempted to justify its practice of nonpayment by claiming that the time that the sales reps stopped working was not a break in the legal sense but “flex time.” The District Court rejected this distinction, and gave deference to the DOL’s interpretation of what was required by the FLSA in its long-standing rule requiring payment for all breaks under 20 minutes long. The Third Circuit also ultimately rejected defendant’s argument as well, and likewise enforced the DOL’s long-standing rule on the payment requirement for breaks under 20 minutes.

The Third Circuit’s decision is a friendly reminder about the dangers of not knowing all the nuances of wage and hour legal requirements. The DOL has issued a number of regulations that provide guidance to employers on how that agency interprets the wage and hour payment requirements of the FLSA, with one of those being the 20 minute break compensation rule at issue in this case. In this case, not only did this employer have to pay for the actual wages required for all uncompensated employee 20 minute break periods, but the court also awarded liquidated damages. Liquidated damages consist of payment of double the amount of the wages that are owed. Before incurring such costly expenses, it is best to make sure that all novel compensation policies are legally sound and will withstand any possible future scrutiny from the DOL.

CEPA Found Not to Apply to Volunteer Firefighter

As many employers already know, New Jersey has one of the broadest whistleblower protection laws in the United States.  In the past, the Conscientious Employee Protection Act (“CEPA”) has been expansively interpreted to provide wide ranging protections to not only employees who engage in whistleblowing activities but also independent contractors, who while technically not employees, are nevertheless covered by the law because such persons frequently are performing similar types of services for companies.

One issue that has never been addressed in any reported New Jersey state court decision is whether volunteers who perform services for companies are also entitled (like independent contractors) to the protections afforded by CEPA for engaging in whistleblowing activities.  That has now changed and, surprisingly, the result was not what one would have expected given the way that CEPA’s coverage has been construed expansively in the past by New Jersey’s Courts.

In Sauter v. Colts Neck Volunteer Fire Co., No. 2, A-0354-15T1, 2017 WL 4020461 (N.J. Super. Ct. App. Div. Sept. 13, 2017), Plaintiff was a long time member of the Defendant’s all volunteer fire department.  Along with serving as a volunteer in Defendant’s fire department, Plaintiff was also a full time employee of the Monmouth County’s Sheriff’s Office.  Defendant’s fire fighters were all unpaid volunteers.  However, firefighters could participate in a Volunteer Length of Service Program (“LOSAP”), which provided a small amount of compensation to volunteers, ranging from $400 to $1150 a year, depending on length of service.  Members could access these funds only after they were no longer with the fire company.  Along with providing the opportunity to participate in the LOSAP, volunteer fire fighters were also provided with workers’ compensation coverage for any injuries occurring while providing services to the fire company.

Plaintiff was a twenty (20) year member of the fire department.  During that time, Plaintiff had accumulated $5,871 in LOSAP benefits. In 2013, the members of the fire department voted to terminate Plaintiff’s membership in the company.  As the court said in its decision, the Plaintiff’s twenty (20) years of membership was less than harmonious.  According to the court’s decision, the members of the department terminated Plaintiff because he was “abusive’, “angry”, and “belligerent.” Plaintiff in his lawsuit challenged his termination by claiming that it was wrongful under CEPA because he had previously engaged in certain whistleblowing activities that included challenging the filing of an insurance claim by the department because he thought it was fraudulent. Plaintiff likewise had complained that fire department members were wrongfully dumping their personal garbage in a fire department dumpster as well.

This was not the first CEPA action that Plaintiff filed against the Department. Earlier, in 2004, Plaintiff filed a previous CEPA claim after his brother (a fire company supervisor who actually voted for Plaintiff’s dismissal) was denied a contract to renovate the fire company’s hall.  That claim was ultimately settled, but even after the settlement, Plaintiff continued to complain that he was not provided with all the counsel fees that he thought were due to him.

In its reported decision, the Appellate Court held that the dismissal of Plaintiff’s CEPA claim in this case by the Trial Judge was appropriate because CEPA did not apply to persons who are strictly volunteers and not employees.  Relying upon the language of the CEPA statute itself, the court concluded that only persons who receive actual financial remuneration for the services that they perform are entitled to CEPA’s protections because the law was designed to protect such persons from suffering any adverse actions that would affect their continuing financial livelihood.  The Plaintiff had argued that the funds received through the LOSAP program were sufficient remuneration to make him an employee under CEPA. The court rejected this argument, finding that the minimal amount received did not approximate the monetary value of the services that firefighters actually provided to the Department.  The court also rejected Plaintiff’s additional request that CEPA’s coverage be expanded to include volunteers so they too could fall within CEPA’s protections just like independent contractors.  The court rejected this request to expand CEPA’s protections declaring that doing so would not serve CEPA’s goal of protecting a person’s livelihood from risk because of whistleblowing activities.

While technically this case did not involve an employer or employment type relationship, the decision can only be considered a positive one for employers because the court could have continued to expansively interpret CEPA and bring within its scope many other service providers that employers might retain who are not technically employees (as occurred with independent contractors) and are right now not covered by the law.  The case also serves as a continuing warning to employers that they must rigorously adhere to CEPA’s requirements because retaliation lawsuits remain commonplace and are still very popular claims being brought today in the New Jersey courts.  In this case alone, we see that this was the second CEPA claim that this Plaintiff filed against the very same fire department.  Thus, any type of perceived retaliation will no doubt result in similar types of lawsuits, so it is important, now more so than ever, that employers make employment related decisions on legitimate grounds, for legitimate business reasons, and not to retaliate against an employee for past whistleblowing conduct.

A Lesson From France

Your public entity employer supplies i-Phones and other computer related technologies to keep your employees connected to the office even after normal business hours. It is Saturday night, and you need an urgent answer to a pressing question. You email one of your low level managers.  He hears the “bing’ on his i-Phone, and sees your email. You are anticipating an immediate response from the employee. But, instead, the employee emails that he will respond to the question when he is back at work on Monday.

Is this a sufficient answer? In all likelihood, not in the USA for any employer, public or private, but what about France?  Well, thanks to a recently passed law there, known affectionately as the “Right to Disconnect Law,” French employees have the right to tell their employers that a response can wait until Monday.  The new law requires French employers with more than 50 employees to commence drafting polices that limit work-related technology usage outside the office.

Now, would a law like that have any chance of passage here in the USA?  Likely not, but employers of all kinds are wise to understand the significant legal issues that arise from employee use of work related technologies while performing employment services on such devices outside of the workplace and after the normal work day.

In our example, if the employee actually responded, would the time spent crafting the answer constitute compensable work time for the employee in having to respond immediately? It is indeed possible, and that would depend on whether the employee is exempt or non-exempt.  If non-exempt, the employee is required to be paid for all time spent in providing work related services. So, if that is the case here, the next question would be, how does the employee track such time, and does this public employer have policies in place directing how this non-office work time is to be reported for wage and hour purposes?  And, if the extra time causes this employee to exceed 40 hours of work during this work week, are you the public employer obligated to pay an overtime rate for this excess time worked?

Unfortunately, most employers (both public and private entities) lack the necessary policies to address these kinds of questions, and that is the key lesson all employers in the USA can learn from this recent French law.  Employers here in this country should, like their brethren in France are now required to do by law, begin formulating policies on how situations like the above will be addressed so you can avoid potential legal problems that can arise in these situations.  Whenever hourly non-exempt employees perform any kind of work for an employer’s benefit, federal and state wage and hour laws require payment of compensation for that time, and if the time worked results in an over 40 hour work week, then overtime obligations could arise. Just as importantly, the employer needs to ensure that such time gets tracked properly, and having polices in place that alert employees on their obligation to report, and on how to actually report such time, are a must if employers want to avoid potential wage and hour problems in this area.  No one wants a wage and hour investigator showing up at their doors, and it only takes one complaint from just one employee in this type of circumstance to raise the possibility of such an occurrence, even if you are a public employer.

In sum, while technology is a wonderful tool for today’s business world, it can cause you unexpected legal peril in these kinds of situations, and staying ahead of such dangers with well-crafted legal policies is the best way for all employers to avoid such lurking problems.

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