Supreme Court says No Pay for Employee Security Screening Time

Last week,the Supreme Court addressed whether an employer must pay for time an employee spends waiting to go through security after the end of a shift.  The case involved temporary workers at an Amazon warehouse in Nevada who sought pay for time spent waiting to go through security screeningsbefore leaving the warehouse.  The Supreme Court found that the time was not compensable because the “workers were employed not to undergo security screenings but to retrieve products from warehouse shelves and package them for shipment” and because the screenings were not “integral and indispensable” to the activities the employees were hired to perform.  Accordingly, under the FLSA and Portal-to-Portal Pay Act, the employees were not entitled to be paid for the time spent waiting for screening.

The decision clarifies that payment for postliminary activities is dependent upon whether the particular activity is “tied to the productive work that the employee was employed to perform.”

The Supreme Court’s decision is here: http://www.supremecourt.gov/opinions/14pdf/13-433_5h26.pdf

Employers Must Let Employees Use Employer Email for Protected Communications

The NLRB recently held that employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.  In other words, if an employer permits employees to use company email in the course of their work, the employees must be permitted to communicate with other employees about self-organization and other terms and conditions of employment during nonworking time.  This decision reverses prior authority that permitted an employer to completely prohibit employees from using their employer’s email system for Section 7 purposes (discussions about their terms and conditions of Employment).  More information can be found here: http://www.nlrb.gov/case/21-CA-095151

Three Hour Drive Does Not, By Itself, Make Arbitration Clause Unconscionable

We have previously written about the many reasons that arbitration can be an effective and efficient way to resolve employment disputes. Many employee-side plaintiff’s attorneys disagree, and regularly argue that arbitration agreements should be unenforceable because they are “unconscionable.” This month, Magistrate Judge Acosta of the U.S. District Court of Oregon granted an employer’s motion to dismiss or stay an employee’s lawsuit and require the parties to arbitrate the dispute.

In Jensen v. Fisher Communs., 2014 U.S. Dist. LEXIS 167331 (D. Or. 2014), an employee filed a lawsuit in stating ten employment-related claims for relief. The employer moved to compel arbitration under an arbitration clause governing disputes arising out of an employment agreement. The employee opposed arbitration for various reasons, none of which carried the day. Of note, the employee argued the arbitration clause was substantively unconscionable because it required arbitration to occur in Seattle, Washington. Judge Acosta found that the employee failed to meet his burden to prove the forum-selection clause was unreasonable. Judge Acosta wrote:

“He does not argue the clause resulted from ‘fraud, undue influence, or overweening bargaining power,’ nor does he point to a ‘strong public policy’ of this jurisdiction which would counsel against enforcement. Instead Jensen argues the selected forum of Seattle, Washington is unreasonable because at the time he signed the agreement, he lived and worked in Portland, Oregon. The court disagrees. This relatively minor geographic distance is not ‘so gravely difficult or inconvenient’ so as to deprive him of his ability to arbitrate this dispute. Driving from Portland, Oregon to Seattle, Washington takes only three hours, and [employee] has not produced evidence showing that . . . his resources and income are disproportionately small compared to the anticipated cost of arbitration. Thus, the court concludes that requiring arbitration in Seattle would not deprive [employee] of his day in court.”

This case may help employers defeat claims for unconscionability based on the location specified for arbitration of disputes. Still, employers should regularly review their arbitration agreements to make sure that the terms comply with case law regarding this ever changing area of dispute resolution.

9th Circuit Clarifies Standard for Pleading FLSA Claims

Last month, the 9th Circuit held that a plaintiff seeking minimum wages and/or overtime under the FLSA must do more than simply allege that their employer failed to pay overtime.  Instead, an employee seeking overtime must allege that they worked more than 40 hours in a specific workweek without being compensated for the hours worked in excess of 40 during that workweek.  The employee need not plead the number of hours worked with “mathematical precision,” but must allege that there was a specific week in which the employee was entitled to, but denied, minimum wages or overtime.  This decision sets a clearer standard for when an employer should seek dismissal of claims for minimum wages/overtime brought in federal court.

The 9th Circuit’s decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2014/11/12/12-15890.pdf

EEOC and Enforcement Protections for LGBT Workers

In January 2013, the EEOC began tracking information on discrimination charges based on gender identity and/or sexual orientation. From January to September 2013, the EEOC received 667 charges raising allegations of sex discrimination related to sexual orientation and 161 charges alleging sex discrimination based on gender identity/transgender status. The EEOC collected a total of $1,874.148 through settlement of these claims. In the first three quarters of FY 2014, the EEOC has received 663 charges alleging sex discrimination related to sexual orientationand140 charges alleging sex discrimination on the basis gender identity/transgender status, and collected $884,659.  The EEOC has also started filing LGBT related lawsuits under Title VII and providing training addressing LGBT issues.

More information and statistics about EEOC charge resolution can be found here: http://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm

How to Avoid Employment Claims? Lead By Example.

Those of you who have attended our best employment practices presentations at the Oregon Bureau of Labor and Industries’ Annual Employment Law Seminars know that we encourage you to train your managers and supervisors to lead by example. If your workforce sees that your managers engage in racist, sexist, or otherwise discriminatory conduct, your workforce is likely to assume that sort of conduct is condoned. That sort of assumption can cost you a lot of time and money, employee turnover, and rotten workplace morale.

A recent settlement announced by the EEOC illustrates this point. The EEOC filed a lawsuit against Battaglia Distributing, a grocery wholesaler and manufacturer. The lawsuit alleged the employer “tolerated” a workplace that was racially hostile to its African-American dock workers. Specifically, the EEOC alleged that its investigation of worker complaints showed that since at least 2007, black employees had been harassed due to their race, including being subjected to racial slurs, such as the “N-word,” by co-workers and “managers.” The suit also alleged that management failed to take action against the harassment even though employees complained. Rather than go to trial, the employer eventually settled for nearly $1 million.

You should regularly train your managers to set the standard of lawful conduct at your workplace. You pay them to lead. Make sure they do.

EEOC Focusing on GINA

Recent EEOC settlements indicate that the agency is aggressively pursuing employers for violations of the federal Genetic Information Non-Discrimination Act (GINA). GINA prohibits the use of genetic information, which includes family medical history, in making employment decisions, restricts employers from requesting, requiring or purchasing genetic information, and strictly limits the disclosure of genetic information.  Similarly, under Oregon law, it is an unlawful employment practice for any employer to subject any employee or prospective employee to any genetic test or to seek to obtain, to obtain or to use genetic information of an employee or a prospective employee.  An employer who requires employees or applicants to complete a medical questionnaire in connection with a pre-offer medical examination will violate GINA (and Oregon law) if that questionnaire includes questions about the employee’s family medical history.   Of course, the employer will also violate these laws if it denies employment to an applicant based on their family medical history.

Bottom line: double-check any forms used in connection with employee/applicant medical examinations and (with the exception of forms used to certify medical leave to care for a family member) delete any questions that solicit information about family medical history.

More information about GINA can be found here: http://www.eeoc.gov/laws/types/genetic.cfm

Employees Still Cannot Come to Work Stoned

Yesterday, Oregon legalized recreational use of marijuana.  This change in the law does not mean much for employers.  As the Oregonian explained: “Measure 91 does not change Oregon employment law. Employers may mandate drug testing and require employees to follow drug-free workplace policies.”

Marijuana continues to be illegal under federal law, and unless and until it is legalized by the U.S. Government, employers can prohibit drug use and discipline employees who test positive for any detectable amount of marijuana (or other illegal drugs).

We anticipate guidance from BOLI on this subject and will post as we get more information and insight from BOLI (and any other Oregon governmental agency that weighs in).

http://www.oregonlive.com/politics/index.ssf/2014/11/marijuana_legalization_oregon.html

Ability to Comply with Company Policies May be an Essential Function of a Job

On Monday, the U.S. Supreme Court refused to consider an employee’s challenge to lower court rulings that found that the employee’s termination did not violate the ADA. The employee was terminated from his job as a financial advisor after he removed the hard drive from his work computer (which contained confidential information) and took it to a friend’s house.  The employer had multiple written policies addressing the treatment and protection of confidential/proprietary information, and expressly prohibited removal of confidential information from the employer’s premises.  After the employee was terminated, he alleged that he took the computer while he was “in the midst of a psychotic episode” which was a manifestation of bipolar disorder, and that his termination violated the ADA.

The District Court found that there was no evidence that the employee ever told his employer he was bipolar or asked for any accommodation. The Court also found that even if the employee had a disability (and the employer was aware of the disability), the employee was not qualified to perform the essential functions of the job – since one of those functions was to maintain protect the employer’s highly sensitive and proprietary information.  The Court found that the employer’s security policies were an integral part of its business and that the employee’s failure to follow the policies rendered him unable to meet the essential requirements of his job (with or without a reasonable accommodation).

It is unclear how a court in the Ninth Circuit would address this issue. It is clear, however, that in certain circumstances, employees, whether or not they are disabled, can be required to comply with employer rules and policies, provided such policies are integral to the employer’s operations.

The citation to the District Court decision is Foley v. Morgan Stanley Smith Barney, LLC, et al., 2013 U.S. Dist. LEXIS 28873 (S.D. Fla. 2011).

Facebook Posts Advocating Insubordination are Not Protected

We have posted before about the protections afforded to employee social media posts under Section 7 of the National Labor Relations Act. Yesterday, the NLRB made clear that no protection is available to employees who advocate multiple detailed acts of insubordination (rather than engage in a concerted effort to improve or address the terms and conditions of their employment).  The employees exchanged multiple Facebook posts in which they detailed all the ways they would break the employer’s rules and act to the detriment of the employer when they returned to work.  The Facebook posts were laden with expletives and included statements by the employees about how they would: refuse to obtain permission for organizing events; spend the employer’s money without authorization; teach kids (the constituents served by the employer) to graffiti walls and play music loud; take advantage of the employer by not doing their jobs; neglect their duties; and destroy the employer (“Let’s f*ck it up”).

The NLRB found that the statements were not protected and the employer’s decision to terminate the employees justified. The NLRB explained: “The magnitude and detail of insubordinate acts advocated in the posts reasonably gave the [employer] concern that [the employees] would act on their plans, a risk a reasonable employer would refuse to take. The [employer] was not obliged to wait for the employees to follow through on the misconduct they advocated.”

http://www.nlrb.gov/case/20-CA-091748