Even if employees are not provided with a lunch break, throughout the course of the workday there are, almost always, short periods of time where an employee is present in the workplace but not performing actual job tasks. Some examples include a walk to the restroom, time spent in the restroom, time spent grabbing a glass of water from the kitchen etc. Most employers do not dock employees’ pay for these short periods of time that an employee is not performing a job task but what if an employer wanted to dock employees’ pay for these breaks? What if an employer decided that the employee should only be paid for time when job tasks are actually performed and that any break time – whether the break is one minute or twenty minutes– would be unpaid? Would this be lawful? In a precedential decision entitled, Secretary United States Department of Labor v. American Future Systems, Inc. d/b/a Progressive Business Publications, No. 2-12-cv-067171 (3d Cir. October 13, 2017), the Third Circuit Court of Appeals analyzed this question and confirmed that any non-exempt employee breaks, which are less than twenty minutes in duration, must be paid breaks in order to comply with the Fair labor Standards Act (“FLSA”).

Facts of the Case

American Future Systems d/b/a Progressive Business Publications (“PBP”) is a company that employs sales representatives who are paid an hourly wage.  These employees also receive bonuses based upon the number of sales they receive per hour while they are logged into the system at their workstation.  PBP previously had a policy that employees were provided with two paid fifteen minute breaks per day.  In 2009, PBP changed its policy.  Under the new policy, employees are not provided with paid breaks but are allowed to log off of their computers at any time and for as long as they want to do so.  The employees are not paid for any time that they are logged off of the computer, no matter how long they were logged off.  The only exception is if an employee logged off and then logged back on within a period of 90 seconds, those 90 seconds will be considered paid time. PBP marketed its policy by explaining that it maximizes its employees’ ability to take a break from work at any time, for any reason and for as long as the employee desires (flex time).

Procedural History and Analysis/Decision

The Secretary for the United States Department of Labor (“DOL”) filed suit, alleging that PBP’s break policy violated the FLSA. The DOL argued that the policy failed to compensate sales employees for breaks of twenty minutes or less (minimum wage issue). PBP moved for summary judgment and the DOL moved for partial summary judgment regarding the minimum wage claim.  The District Court granted the Secretary’s motion regarding the minimum wage issue.  The District Court found that the FLSA had created a bright line rule that employees must be paid for breaks that are twenty minutes or less.  PBP then appealed to the Third Circuit.

The Third Circuit upheld the District Court’s decision that PBP’s break policy violated the FLSA.  The Court stated that it is well established that some breaks constitute hours worked under the FLSA. The FLSA does not require employers to provide breaks for employees, but if they choose to allow short breaks of five to twenty minutes, employers must pay employees for breaks that are twenty minutes or less. Even if an employee is not actually performing job duties during this twenty minute or less break, this period of time is considered hours worked. The Court stated that PBP’s new break policy forced employees to choose between going to the bathroom or getting paid unless the employee could get to the bathroom, relieve him/herself, and then get back to his/her computer station all within 90 seconds.  The Court found that the employer’s break policy was contrary to the FLSA.

What does this mean to you?

Employers should review their policies regarding breaks in the workplace to confirm that their policies are in compliance with the FLSA. Make sure that you are aware of how long employees spend on breaks during the workday. If the break time is twenty minutes or less, it must be paid time.

Employers both love and hate social media.  On the one hand, it is a great tool to help your business succeed.  You can post advertisements and events that very quickly can be seen by hundreds if not thousands of people.  With the help of the public, one great post about how great your product is or a fantastic experience with one of your employees, can put your company name out there to people who may otherwise never hear of you.   On the other hand, those same social media sites can create huge headaches for a company not only because it allows the public the opportunity to provide immediate (and potentially negative) feedback, but because you have to contend with employee and prospective employee use of social media.

The issue of how social media affects your company is obvious right from the hiring phase.  Many employers fail to have a policy in place with regard to whether they search prospective employee social media postings (their public postings only!) and get themselves into trouble for failing to review all prospective employees or none at all.  In fact, failing to have a set policy and failing to keep detailed records with regards to any searches actually conducted on prospective employees can lead to an increased risk of discrimination claims and higher costs of discovery in the event litigation occurs due to e-discovery.  Not to mention the fact that the information found online might be exaggerated or inaccurate.

Additionally, many employers find themselves in hot water in an attempt to dole out discipline or terminate employees due to employee social media postings or public behavior.  There is a lot of misleading, inaccurate and false information online and failing to determine whether the information is factual can be costly.  Employers have to walk a fine line to keep the company from getting involved in costly litigation when relying on social media postings or public behavior as the reason for termination or discipline.  Having your employment counsel weigh in can save you a lot of time and hassle.

Furthermore, despite the fact that social media has been around in some form for a while now, a lot of employers are still playing catch-up and either have no social media policy at all or have a social media policy that is not effective because it is too broad or too narrow.  Many employers are aware of the National Labor Relations Act (“NLRA”), but believe that the provisions only apply to companies with a unionized workforce.  This, however, is not the case.  The provisions of the NLRA apply to both unionized and non-unionized employers.  One of the areas that the National Labor Relations Board (“NLRB”) has been cracking down is in employer discipline of employees for social media postings related to the company and work conditions (for both unionized and non-unionized employers).  The NLRB has also been cracking down on social media policies that are considered too broad and prohibit an employee from engaging in “concerted activity.”  As you probably already know, one of the protections provided by the NLRA is an employee’s right to engage in concerted activity, which is usually activity for employees’ mutual aid or protection related to wages, terms of employment or working conditions.

In a recent NLRB case (Butler Medical Transport, 365 NLRB No. 112 (July 27, 2017)), a former employee posted on a public Facebook page that she thought she had been improperly terminated.  In response to the post by the former employee, a current employee posted that she was sorry to hear that and that the former employee should think about getting a lawyer and contacting the labor board.  The current employee was fired for the post suggesting a lawyer.  The NLRB determined that the termination of the current employee for suggesting the former employee obtain a lawyer violated the NLRA since the post was concerted as it was made for the mutual aid and protection of employees.  Additionally, the NLRB determined that the company’s social media policy, which stated, “I will refrain from using social networking sights [sic] which could discredit Butler Medical Transport or damages its image,” was overbroad.

If you do not have a social media policy or you have one that may be too narrow or broad, it is time to update those employee handbooks.  Make sure you reach out to a labor and employment attorney first to make sure you are in full compliance with all federal and state laws related to social media or that could impact your policy.  If you do not have a set policy with regard to the use of social media in your hiring process, take the time to create one and make sure the people involved in the hiring process are aware and follow the policy as to all prospective employees.  Again, make sure you obtain the advice of your labor and employment attorney.  There are a lot of laws out there that relate to what can and cannot be done by employers with regard to social media and making sure you are fully compliant is imperative to avoid costly litigation.

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.

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.

If an employee came to her employer and advised that she had been diagnosed with cancer, wouldn’t you automatically assume that the employee falls with the definition of “disabled” under the Americans with Disabilities Act (“ADA”) due to the diagnosis alone? Not so fast.  In a recent Third Circuit case, Alston v. Park Pleasant, Inc., No. 16-1464,  2017 WL 627381 (3d Cir. Feb. 15, 2017), the Court reminded employers that nothing should be assumed and that each case requires an independent factual analysis. Just because an employee provides an employer with a specific diagnosis, this does not automatically mean that the employee is considered disabled under the ADA.

Facts

Joanie Alston (“Alston”) was hired by Park Pleasant, Inc. in 2011 as the Director of Nursing at an adult care facility.  Thereafter, in 2012, Alston’s performance started to deteriorate. In June 2012, Alston’s supervisors and HR Director met with her to advise her that her performance was not meeting expectations. Alston was put on a performance plan.  Five days later, Alston missed work to have a biopsy done.  On July 12^th, Alston was diagnosed with early stage breast cancer.  Thereafter, Alston’s performance continued to deteriorate and by late July, Alston’s supervisors were meeting with Alston weekly to discuss her performance deficiencies.  In August 2012 Alston was terminated.

Alston brought suit against Park Pleasant, Inc., claiming discrimination on the basis of age, race, color and disability.  The District Court granted summary judgment in favor of Park Pleasant, Inc.  Alston then appealed only the Court’s granting of summary judgment in regards to her claim of discrimination on the basis of disability. The District Court had found that summary judgment was appropriate because Alston failed to prove that she had a disability.  The parties did not dispute that Alston had breast cancer but the question was whether or not Alston had presented enough evidence to create a genuine issue of material fact as to whether her cancer qualified as a disability.

Holding

The 3^rd Circuit found that Alston had not established that she was disabled under the ADA.  Although cancer can – and generally will– be considered a disability under the ADA, the Court explained that there still must be an individualized assessment in each case as to whether or not the cancer substantially limits a major life activity (as required to fall within the protections of the ADA) for the specific employee.  To undertake the individualized assessment, courts have required some evidence of the plaintiff’s substantial limitation – even when the limitation seems self-evident. In the instant case, the Court found that Alston never claimed during the litigation that her cancer limited any substantial life activity (including immune system function or normal cell growth).  Alston’s Complaint made no mention of any type of limitations.  At her deposition, Alston testified that she was not limited in any major life activity.  Since Alston only supported her claim of disability by a generalized statement that she was diagnosed with cancer, without more, Alston failed to make out the prima facie case of disability discrimination under the ADA.

What does this case mean to you?

This case should remind employers that although the ADA is usually interpreted broadly, it is still important to conduct an individualized analysis of each employee and his/her specific illness/condition.  Each situation is fact specific, and only when an employee meets certain requirements, will he/she be entitled to the protections provided by the ADA.