Question: Do employers’ own computers create potential overtime liability for off-the-clock work?

Answer:

Yes and a health-care company in California just learned that the hard way. An employee of John Muir Health sued her employer on behalf of herself and a potential class of employees for overtime violations under both the Fair Labor Standards Act (FLSA) and the California Labor Code. While the plaintiff in that case could not specifically allege the hours worked by employees, the Judge declined to dismiss the overtime claims because the plaintiff alleged that the employer’s computer systems would establish that the employees had worked off-the-clock.

Off-the-clock work is work that is performed for the benefit of an employer that is not counted towards an employee’s weekly hours worked and is not compensated. This may take many forms, such as employees who put in extra work by coming in early, staying late, working through lunch or regularly checking email after work hours. Employees may think they are being helpful, but if this time isn’t captured and compensated, it can leave employers vulnerable to overtime violations.

The named plaintiff in the John Muir Health case claimed that she and other employees would clock out, but then continue to conduct work, such as entering patient notes and processing insurance claims. The employer’s EPIC and MIDAS computer systems track when employees are using those systems. The employer’s KRONOS system tracks when employees clock in and out of work. The plaintiff claimed that her overtime work, allegedly totaling about $30,000, could be determined by comparing her time entries in each of her employer’s three computer systems.

Some employer takeaways to avoid off-the-clock exposure:

Ensure that hourly employees are not performing off-the-clock work and that your own computer systems do not establish otherwise;
Do not allow employees to clock out and then continue working or to spend time monitoring or responding to emails in the evenings or on weekends;
Make sure your management team knows not to reach out to hourly employees after work hours, which may create an expectation that the hourly employees respond;
Consider limiting hourly workers’ remote access to computer systems to prevent off-the clock work from being performed;
Implement a policy that prohibits hourly employees from engaging in off-the-clock work and emphasizes that all working time must be recorded; and
Pay for after-hours work performed and take disciplinary action if the off-the-clock work is unauthorized.

About the Author: Laura Liss (lliss@pfs-law.com) is Chair of Patzik Frank and Samotny’s Employment Law Practice Group. She provides both legal and practical business advice on all phases of employment-related decisions. She regularly serves as a sounding board for business owners, executives and human resources professionals and assists them in successfully and efficiently navigating the various employment laws that impact their businesses.

Question: Does using Facebook to recruit job applicants violate discrimination laws?

Answer:

Possibly, if your recruiting strategy is limiting your job postings to particular age groups (or perhaps other protected classes), to the exclusion of others. Facebook allows advertisers to choose their audience. In turn, Facebook uses the extensive data it collects about its members to ensure the ads reach the intended audience. This “microtargeting” permits employers who are advertising to reach their preferred applicant pool, including people they believe are the most viable hires.

A recent class action filed against Amazon, Cox and T-Mobile US by the Communication Workers of America and three workers alleges that ads targeted users by age on Facebook in violation of the Age Discrimination in Employment Act (“ADEA”). ADEA prohibits discrimination against applicants or employees age 40 and over. This case, and apparently the many others likely to follow, focus on employers alleged conscious decision to exclude older workers by electing to have their ads for jobs only visible to younger members of Facebook. In posting ads on Facebook, employers are now able to reach Facebook users in certain age groups, such as ages “22 to 40” or “20 to 45,” apparently to the exclusion of other (insert “older”) potential applicants.

The ability to recruit on Facebook in this targeted fashion may help direct ads to the desired applicant pool and allow advertising dollars to be spent wisely. However, companies that do so should be careful in executing their recruiting strategy. Employers who target certain applicants or employees should do so based on bona fide occupational qualifications (BFOQs). For example, an employer may not be able to hire minors for certain jobs. However, from an age perspective, this BFOQ defense is pretty limited. Given that this seems to be the latest iteration of employment class actions, employers should carefully assess their recruiting strategies and make adjustments as needed to avoid joining the ranks of those companies already sued.

Question: Do company websites need to make accommodations for the disabled?

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Answer:

Yes, this is a growing concern for businesses that provide goods or services online. Under Title III of the Americans with Disabilities Act (ADA), “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation by any person who owns, leases (or leases to) or operates a place of public accommodation.” While the ADA passed before the Internet was made publicly available and “place of public accommodation” traditionally referred to a physical location (such as brick and mortar stores), there has been a surge of lawsuits filed to address alleged website accommodations violations.

These cases have been coined “surf-by” lawsuits because potential plaintiffs need only search the Internet to have a potential claim. You may recall the rash of”drive-by” lawsuits that preceded this new fad in ADA claims, where the plaintiffs need only drive-by stores that do not have ADA accessible ramps or doorways to make an ADA claim. The plaintiffs in “surf-by” lawsuits often allege that (1) certain features on a website are accessible by keyboard and not just by mouse, which affect the mobility impaired, or (2) photos are not embedded with text that can be read aloud by software, which affect the visually impaired.

The appellate circuit courts currently are split on whether or not websites are considered public accommodations under Title III of the ADA. CVS Pharmacy Inc. recently was sued in California and lost a motion to dismiss a case, which alleges that CVS’ mobile apps and website violate the ADA because blind users may not be able to access their services. Some circuits have held that places of accommodation must be physical, brick and mortar sites, while other circuits, including the Seventh Circuit (which covers Illinois, Indiana and Wisconsin), have found that websites should make accommodations for the disabled.

While the ADA limits liability for such claims to injunctive relief and attorneys’ fees, these lawsuits still present significant risks for businesses, including those that provide services connected with any physical location. Accordingly, it is advisable for businesses to take preventive measures to defend against Title III lawsuits. This includes consulting with counsel and/or an accessibility consultant to identity, and implement a plan to remediate, any potential violations on company websites. Until the government issues guidance on how the ADA applies to the Web, courts tend to rely on, and businesses should consult, the Web Content Accessibility Guidelines (WCAG 2.0 AA), which are a set of technical standards that aim to provide a single shared standard for Internet content accessibility.

Question: Should employers respond to negative online reviews?

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Answer:

Yes, it is important to have a plan in place to address negative feedback online. Be it from disgruntled current or former employees, it has become more and more common for companies to face negative online reviews. Websites such as Glassdoor have become a common place for disgruntled former employees to vent. If such reviews go unanswered, readers do not have any context or comparison and can be left with a very bad impression of your business. If you hit the negative reviews head on and try to address them, you have a chance to neutralize the intended effect of such reviews.

Many companies designate a point person who regularly checks for online reviews and ensures the Company timely and appropriately responds. If you fail to respond timely, then when you ultimately do respond, it is good form to apologize for your delay in addressing the review. This sets the tone that your company is well-intentioned.

Although it may seem counterintuitive, companies should consider thanking the reviewer at the start of the response. This shows your company is professional and welcomes the opportunity to improve. Agree with things you can agree with, even if you agree but then show a different perspective on the comment. Acknowledge the problem raised by the reviewer, then explain how you plan to address (or already have addressed) the issue. On the other hand, if you prefer not to validate a particular comment in a review, do not respond to it directly. Instead, your response should focus on your company’s positives and perhaps use an example or tell a story that helps pivot away from the comment.

If you need further food for thought, check out this Glassdoor article (Here), entitled “5 CEO Responses Worth Reading.”

Question: Is it risky to use text messaging to conduct business?

Answer:

In short, yes. Texting is convenient and we often use it as an instant method of communicating, but the more formal method of communicating by email is almost always the better method to have business conversations. On the other hand, using short and multimedia message services (SMS and MMS, aka text messaging) is likely to continue to be a prevalent means of communicating, so we need to consider ways to mitigate risk when it comes to texting for business.

Years ago, when there was an explosion of communication by email, prudent businesses took steps to mitigate risk. For example, by implementing email usage policies, training workers to be cautious of using less formal language in emails and reserving sensitive subjects for oral conversations. These same concepts apply to texting, but texting is even riskier given the tendency to communicate even more informally in texts than in email and to write in an abbreviated fashion, which makes texts more prone to being misinterpreted. Communicating by text inherently tends to be quick and more informal than email, which often translates to less careful choice of words.

To address these concerns, employers should implement a texting policy, which addresses when texting and instant messages are appropriate and what types of topics are fitting for texting. For example, many attendance policies traditionally required employees to notify their manager by phone if they were calling off. If your company now allows these notifications to be done by text, be sure your policy is updated. And equally important, be sure your managers are maintaining those text messages for your records.

In terms of when texting is appropriate, be sure to prohibit texting and driving during working hours or while employees are conducting business for the Company. This means that employers must resist the temptation to use technology to stay in constant contact with employees, especially if they may be behind the wheel. Distracted driving is a major problem and texting while driving is one of the biggest contributors to distracted driving. Protect your company by addressing this in your policies and doing your best to ensure employees follow the policy.

Another major consideration when it comes to texting is the risk of discovery of these informal communications should litigation arise. While discovery of SMS or text messaging is still a relatively new concept, there have been a number of court rulings that make clear that text messages are discoverable and that businesses need to be cognizant of this fact or there may be adverse inferences or damaging admissions.

Consider whether your company supplies cellphones or your employees BYOD (bring [their] own devices to work) or there is a combination of both company-provided and BYO devices at play in your workforce. Then ensure that your employees understand that both business and personal texts may be discoverable in litigation.

Like it or not, texting in business is probably here to stay. We need to we adapt our policies and practices in the workplace accordingly.