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June 10, 2008. NEW RACKS FOR YOUR CLOSET OF ANXIETIES. Mark Steiner Jackson Walker L.L.P. 901 Main Street, Suite 6000 Dallas, Texas 75202 214.953.6170 214.953.5822 (fax) msteiner@jw.com. Two Emerging Issues. Personal Data Assistant (PDA)

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June 10, 2008

NEW RACKS FOR YOUR CLOSET OF ANXIETIES

Mark SteinerJackson Walker L.L.P.

901 Main Street, Suite 6000

Dallas, Texas 75202

214.953.6170

214.953.5822 (fax)

msteiner@jw.com


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Two Emerging Issues

Personal Data Assistant (PDA)

  • Advantages: Easy for employees to keep in contact with supervisors and co-workers while traveling or otherwise outside the office.

  • Complications: Overtime payments required for some employees, voluminous records created, increased costs of discovery.

    Employee Weblogs

  • Advantages: Facilitates communication with media, customers, and industry partners outside of traditional media outlets.

  • Complications: Easy for “bad” information to disseminate instantly, including defamatory speech, sexual harassment, negative financial or other


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Review of FLSA “Exemptions”

FLSA exemptions exist for:

Executives

Administrators

Professionals

Computer Systems Analysts & Programmers

Outside Salespeople

Combination Exemption

Highly-Compensated Employees


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Non-Exempt Employees

  • FLSA requires overtime compensation for all hours “worked” over the standard 40 hour work week.

  • FLSA does not define the term “work”

  • Rather FLSA defines the term “employ” to mean “to suffer or permit to work.”

  • Activity constitutes “hours worked” if it is controlled or required by the employer and pursued necessarily and primarily for the employer’s benefit.

  • Employers must compensate employees for work performed even if it is unauthorized or expressly prohibited so long as management knows that the work was preformed.


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Compensable Work

  • U.S. Customs officers had to be compensated for time spent laundering towels used to train canines to detect contraband. Bull v. U.S., 479 F.3d 1365 (Fed. Cir. 2007).

  • Idle periods of between 15 and 45 minutes for assembly workers had to be compensated as employees could not effectively use time for own purposes. Mireles v. Frio Foods, Inc., 899 F.2d 1407 (5th Cir. 1990).


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Not Compensable Work

  • Police detectives did not have to be compensated for lunch period despite being “on call” and having limited duties such as being obligated to answer questions from the public if approached. Armitage v. City of Emporia, Kansas, 982 F.2d 430 (10th Cir. 1992).

  • Telephone dispatcher on-call five nights per week who only answered a small number of calls and who was otherwise able to pursue personal, social, and business activities did not have to be compensated for every hour in which employee was on-call but not actually working. Halferty v. Pulse Drug Co., Inc., 864 F.2d 1185 (5th Cir. 1989).


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De Minimis Exception

  • 29 C.F.R. § 785.47 allows employer to exclude “insubstantial or insignificant periods of time” which cannot practically be recorded.

  • Occasional briefings of police officers lasting 15 minutes or less while officers drove to work was de minimis and did not have to be compensated. Bartholomew v. City of Burlington, Kan., 5 F.Supp.2d 1161 (D. Kan. 1998)

  • Donning and doffing sanitary equipment at poultry plant which took most employees less than one minute was de minimis and did not have to be compensated. Anderson v. Pilgrim’s Pride Corp., 147 F. Supp.2d 556 (E.D. Tex. 2001)


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FLSA and the PDA

  • Calculating overtime

  • Additional paper trail created

  • Electronic discovery

  • Spoilation and document retention

  • Misclassified workers


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Here Come the Lawyers

  • Plaintiff’s lawyers actively seeking employees who are issued a PDA and who are or may be non-exempt.

  • DOL recovered $163,391,549 in overtime for 2007, focus for 2008 is on misclassified workers.


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What Employers Can Do

  • Ensure proper classification under FLSA.

  • Consider whether non-exempt employees need a PDA.

  • Set clear policies regarding use of PDA.

  • Set clear policies regarding overtime.

  • Create document retention policy.

  • Have procedures in place to retain documents if litigation appears immanent.


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Employee Blogs

  • A weblog or “blog” is an online journal on any topic the author wishes to discuss.

  • As of 2007, an estimated 41 million blogs online, with the number expected to double every 5 ½ months.

  • Many blogs are anonymous, making it difficult to ascertain whether your employees are blogging or not.


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Defamation

  • Employers can be vicariously liable for employee defamation when the employee is acting within their general authority and for the benefit of the employer.

  • Anonymous Bloggers: First Amendment protections to anonymous speech make it more difficult for employers to identify employees who defame the company. In re Does 1-10, 242 S.W.3d 805 (Tex. App. – Texarkana 2007, no pet.).


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Sexual Harassment

  • Very fact intensive analysis is used in hostile work environment sexual harassment cases.

  • Line between behavior which is and is not part of the workplace is not always clear - employee blogs fall into a gray area and may be considered to be part of the workplace in some circumstances.

  • Blakey v. Continental Airlines, 751 A.2d 538 (N.J. 2000) – a forum set up by the company (a format similar to blogging) could constitute a work-related environment and comments posted on forum could constitute sexual harassment.


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Additional Concerns

  • Public Relations Problems

    • Whole Foods

    • Burger King

  • Unwanted Rumors

  • Confidential Information

    • Trade Secrets

    • Protected information (medical, financial, etc.)



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Potentially Protected Blogging

  • Activities relating to collective bargaining under NLRA.

  • Whistleblower statues (Sarbanes-Oxley, etc.).

  • Title VII – treatment of blogging must be neutral among race, gender, nationality, religion, etc.


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What Employers Can Do

  • Address blogging in employee policies.

  • Remind employees that blogging on certain topics can reflect on their employment.

  • Warn about sexual harassment online.

  • Warn about disclosure of protected information.


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June 10, 2008

NEW RACKS FOR YOUR CLOSET OF ANXIETIES

Mark SteinerJackson Walker L.L.P.

901 Main Street, Suite 6000

Dallas, Texas 75202

214.953.6170

214.953.5822 (fax)

msteiner@jw.com