Working remotely has never been easier thanks to the proliferation of mobile devices like smartphones and tablets. Enabling employees to do work outside of the office and standard work hours can be a boon for productivity, but it carries a legal risk for employers: unexpected claims for overtime pay. Under the federal Fair Labor Standards Act (FLSA), non-exempt employees must be paid overtime compensation for work they perform for the employer’s benefit in excess of forty hours in any workweek. Work done remotely, such as responding to emails on a smartphone or drafting a report on a laptop at home, could push an employee’s work hours in a given week beyond the forty-hour threshold. FLSA violations can occur unexpectedly because an employee need not have been asked to work beyond the 40-hour workweek to be entitled to overtime pay.
Two cases illustrate the risk of allowing employees to work outside of the office using mobile devices. In Allen v. City of Chicago, a Chicago officer sued the Chicago Police Department under FLSA for requiring him to work “off the clock” using a department-issued Blackberry device without receiving overtime pay. A Chicago federal district judge conditionally certified a collective action to allow 200 similarly situated officers to join in the lawsuit.
In O’Neill v. Mermaid Touring Inc., the former personal assistant of pop artist Lady Gaga, Jennifer O’Neill, sued for overtime compensation under FLSA. O’Neill alleged that she worked 24/7 because she was expected to have her phone on in order to respond to Lady Gaga’s calls at any time of the day. A New York federal district judge recently denied the defendants’ motion for summary judgment that O’Neill’s on-call time is not compensable, thus setting the stage for trial in the case to begin on November 4.
Allen and O’Neill highlight the need to institute clear policies spelling out the authorization an employee must obtain working remotely with a mobile device. Organizations that allow employees to use mobile devices for work purposes should require employees to keep track of the time they work remotely or consider installing software on that employee’s mobile device that automatically performs such a timekeeping function. Taking proactive measures to manage mobile device usage at work is crucial to preventing employees from secretly racking up overtime hours and then demanding compensation for it.
Facebook comments about condition of company vehicles are protected under the NLRA; a Facebook rant about fake problems with the company car, not so much – Butler Medical Transport, LLC, 2013 WL 4761153 (N.L.R.B. Div. of Judges)
A recent decision by a National Labor Relations Board (NLRB) Administrative Law Judge (ALJ) gives employers insight on when they can and cannot fire an employee for their social media conduct outside of work. Particularly interesting is the fact that this decision involved two separate terminations, one of which the ALJ found illegal, and the other not.
The Norvell Termination
William Norvell worked as an emergency medical technician for an ambulance company, Butler Medical Transport (Butler). While on his personal computer at home, Norvell read a post by a co-worker (Zalewski) on her Facebook page stating that she had been fired. Zalewski attributed the firing to a patient report to management that she complained about the condition of Butler’s ambulances. Several people, including another Butler employee, posted comments inquiring into the incident, to which Zalewski responded with more posts about the patient’s report. Norvell responded to Zalewski with this comment:
“Sorry to hear that but if you want you may think about getting a lawyer and taking them to court.”
Another person posted a comment suggesting that Zalewski find a job with another ambulance company. After Zalewski asked where the company was located, Norvell posted the location and added, “You could contact the labor board too.”
Butler’s HR director obtained hard copies of these posts, and in consultation with the COO, decided to terminate Norvell. The HR director told Norvell that he was being terminated for violating Butler’s bullet point list of work rules, one of which prohibited employees from using social networking sites that could discredit Butler or damage its image.
The ALJ determined that Norvell’s Facebook posts were protected concerted activity. By advising Zalewski to see a lawyer or contact the labor board, Norvell was “making common cause” with a co-worker about a matter of mutual concern to the employees, i.e., the condition of Butler’s ambulances. Norvell’s posts had protected status even though they were accessible to people outside of the company because Section 7 of the National Labor Relations Act (NLRA) extends to employee efforts to improve the terms and conditions of employment through channels outside of the employer-employee relationship. The ALJ did not find posts to be so disloyal, reckless, or maliciously untrue as to lose their protected status. The termination of Norvell based on his Facebook posts therefore violated Section 8(a)(1) of the NLRA.
The Rice Termination
Another Butler employee, Michael Rice, posted this comment on Facebook:
“Hey everybody!!!!! Im fuckin broke down in the same shit I was broke in last week because they don’t wantna buy new shit!!!! Cha-Chinnngggggg chinnng-at Sheetz Convenience Store,”
Butler terminated Rice for making this post. At the trial hearing before the ALJ, Butler produced maintenance records showing that Rice’s vehicle was not in disrepair when he made the post. Rice had also testified at his unemployment insurance hearing that his post referred to a private vehicle rather than a Butler ambulance. There being no evidence to the contrary, the ALJ determined that Rice’s post was not protected by Section 7 because it was maliciously untrue and made with the knowledge of its falsity. As a result, Rice’s termination was not illegal.
Legality of Work Rules
Also under scrutiny was the legality of two of Butler’s work rules, one prohibiting the “unauthorized posting or distribution of papers,” and the other requiring employees to acknowledge that they “will refrain from using social networking sights [sic] which could discredit Butler Medical Transport or damages its image.” Butler argued that the rules were not official company policy because they were stated in a bullet point list. The ALJ rejected the argument as making a distinction without a difference. Butler relied on the bullet point rules in terminating Norvell and Zalewski, and new employees were required to acknowledge receipt of the list. As such, employees could reasonably understand that they would be disciplined for failing to follow the rules on the list. The ALJ found that the rules violated Section 7 activity because they prohibited employees from communicating to others about their work conditions.
LegalTXTS Lesson: This case doesn’t break new ground, but it does contain a few important reminders for employers grappling with how far they can go in regulating the social media activity of employees.
1. A policy by any other name … is still a policy. Butler’s failure to convince the ALJ that the bullet point list was not company policy should serve as a reminder that if a company communicates a rule to its employees in writing, expects them to follow the rule, and disciplines them if they don’t, the rule is effectively a policy. It doesn’t matter that the rule appears in a document whose title doesn’t include the word “policy,” or that the wording of the rule is informal.
2. Write it right. Given how easily a supposedly informal rule could qualify as a policy, a company should take care in articulating its work rules in the form of an official written policy. Consult with counsel to make sure the wording doesn’t inadvertently violate the law.
3. Don’t go overboard. The NLRB has consistently frowned upon work rules that flat out prohibit employees from posting content on social media that damages the reputation of their employer, or worse yet, bars them completely from speaking to others about work-related issues, whether on social networking sites or other media. (For examples, see the related posts below). Reject categorical bans on employee speech in favor of rules that focus on creating or avoiding specific results.
4. Context matters. Before disciplining an employee for a social media post, understand the context in which the post was made. Is the post about a work-related issue that other employees have discussed before? Does the post call for co-workers to take action? Asking such questions helps management determine if the post is protected under the NLRA.
NLRB dishes out confusion on social media policies
NLRB sanctions employees who fire employees for online “protected concerted activity”
DirectTV’s work rules invalidated by NLRB
No, it’s not an acronym advising you to come to dinner with your favorite vintage of pinot noir. BYOD stands for Bring Your Own Device, a movement that’s changing the landscape of information technology at workplaces across the globe. In the “old days,” companies issued electronic equipment to employees for work use. Today, employees want to use the latest electronics of their own choice for both work and play. Surveys consistently show that companies are giving in to such requests, citing the benefits of increased productivity and morale, as well as cost savings from not having to buy the equipment themselves. However, BYOD programs also create legal risks for companies, including:
- Violation of labor laws like the Fair Labor Standards Act due to the ability of workers to rack up overtime by doing work on personal devices practically anywhere and at any time, whether or not such overtime is authorized by management
- Violation of laws prohibiting disclosure of the private information of customers, clients, or patients, such as the Health Insurance Portability and Accountability Act and the Gramm-Leach-Bliley Act
- Inadvertent disclosure of proprietary company information, which jeopardizes their confidentiality, and as a result, their status as protected trade secrets
- Complicating the e-discovery process, because electronic data that fall within the scope of a discovery request may reside on devices besides those under the direct control of the company
In light of these risks, the knee-jerk response of management might be to forbid BYOD entirely, but that is not necessarily the best approach. BYOD is more prevalent than one might think. A form of BYOD is in play whenever someone stores work data on a personal cloud storage account, uses a personal laptop to draft a memo for work, or forwards work-related word processing files to a private email account for easy access from home. A company need not officially adopt a BYOD program to have one, which is all the reason why management should be proactive about putting BYOD policies in place.
Learn about the specific risks that a BYOD program creates for your company. Develop guidelines on acceptable and unacceptable use of personal devices for work-related purposes. Notify employees of the policies in writing and provide training. Don’t wait until it’s too late!
Want more tips on BYOD? Come to the Advanced Employment Issues Symposium in Las Vegas from November 13-15, where I’ll be giving a presentation on “BYOD Challenges: When Employees Bring Their Own Devices to Work.” Registration information is available at www.aeisonline.com.
Text message failed to give employer sufficient notice of intention to take FMLA leave – Lanier v. University of Texas Southwestern Medical Center, 2013 WL 2631316 (5th Cir. June 12, 2013)
Lanier reminds me of a conversation I had with a friend who manages a local restaurant. He was bemoaning the lack of professional courtesy displayed by his twentysomething employees. “They don’t call in to say they’ll be late to a shift. They text me!”
My friend now can say that the courts agree with him. At least when it comes to invoking rights under the Family Medical Leave Act (FMLA), a federal appellate court recently ruled that a text message doesn’t do the job. Chrisanne Lanier was scheduled to be on call when her father fell ill. She sent a text message to her supervisor saying that her father was in the emergency room and that she would be unable to be on call that night. Her supervisor responded that another employee would cover her shift.
Lanier failed to log in for her make-up call rotation several weeks later. This led to a confrontation between Lanier and her supervisor and Lanier abandoning her job duties. After Lanier was asked to resign, she sued her employer under various theories of recovery, including interference with her FMLA rights.
At issue was whether Lanier gave proper notice to her employer of her intention to take FMLA leave. The Fifth Circuit held that she did not. Although an employee doesn’t need to say the words “FMLA leave,” she must give notice that sufficiently gives her employer notice that her request to take time off could fall under the FMLA. The employer may have a duty to inquire further if the employee’s statements warrant it, but “the employer is not required to be clairvoyant.”
In Lanier’s case, a text message saying that her father was in the emergency room was not sufficient notice of her intention to take FMLA leave, the court said. Lanier argued that her supervisor should have inquired further because she had previously told him about her father’s advanced age, his poor health, and that he was having breathing problems that morning. Even with these facts, the court ruled that it would be unreasonable to expect Lanier’s supervisor to know that she meant to request FMLA leave. Lanier had taken FMLA leave before and was familiar with the proper way to request it, and yet she did not take those steps. Finding that no reasonable jury could conclude that Lanier’s text message was sufficient to notify her supervisor of her intent to request FMLA leave to care for her father, the court granted summary judgment to the employer on the FMLA interference claim.
A New York court overturns the termination of a public school teacher for posting offensive comments on social media – Rubino v. City of New York, 106 A.D.3d 439 (May 7, 2013)
The New York Supreme Court, Appellate Division recently ruled that the firing of a fifth-grade public school teacher for making inappropriate comments on social media was too harsh of a penalty. After a difficult day at class, the teacher posted comments alluding to a tragedy involving an unknown student at a different school. The court’s opinion is sparse on details, but according to a Huffington Post article, the teacher wrote: “After today, I am thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS!” The beach reference alluded to the drowning of a 12-year old girl on a school trip to Long Island beach the day before. The comments were only visible to the teacher’s private network of friends, who did not include any of her students or their parents. The teacher deleted the comments three days after posting them. She denied making the comments when she was initially confronted about them, but later confessed at her disciplinary hearing.
The court agreed that the comments were “clearly inappropriate” but it noted that the purpose of the comments was just to vent. The teacher did not intend the public to see her comments, and she expressed remorse over making them. She had no prior disciplinary history in her 15-year career. Given the record, the appellate court found the termination to be “shocking to one’s sense of fairness.” The appellate court upheld a lower court order setting aside the termination and sending the case back down for imposition of a lesser penalty.
LegalTXTS Lesson: Not all courts have been as kind toward teachers who vent on social media as the New York Appellate Division. In fact, in In re O’Brien, a court in neighboring New Jersey upheld the firing of a first-grade teacher under similar circumstances earlier this year. One difference might be that the teacher in Rubino expressed remorse for making the comments whereas the teacher in O’Brien did not. Whether that factor alone accounts for the different outcomes is questionable. One thing the cases do share in common is that the teachers in both thought that no one outside of their network of “friends” would see their comments. With apologies to Las Vegas, Rubino and O’Brien teach that what happens in an employee’s social network doesn’t always stay in his or her social network.