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Benjamin E. Widener

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Consider a few scenarios:

  • An employee has been injured on the job and unexpectedly fails a post-accident drug test, testing positive for opioids. What do you do?
  • An employee comes into your office, closes the door, and confides in you that she is battling an addiction to opioids and needs help. What policies apply and laws come into play?
  • An employee is increasingly absent from work, appears drowsy and inattentive when he is working, and his performance is slipping. You’ve issued a few verbal disciplinary warnings and have decided it is time for the employee to go, but when you go to put the “pink slip” in the employee’s locker, you find a current prescription for pain killers prescribed to the employee. Do you fire him?
  • A candidate for employment submits an application, has impressive credentials, has relevant job experience and hits a home run at her interview. You make a conditional job offer subject to the candidate passing a comprehensive background check, which turns up a drug possession conviction. You raise the issue with the candidate, who discloses that she had a drug dependency addiction in the past but is clean now and still attending support group meetings to stay clean. Do you hire her?

These are just a few examples of how employers and the workplace can be affected by the opioid crisis. Just about everyone in this day and age has been touched by the opioid epidemic or knows someone who has. Employers similarly are not immune to this sad and sobering reality. The opioid crisis touches many employment law issues, policies and procedures, including background checks, drug testing, medical leave laws, employee benefits and counseling, social media and employee speech, employee privacy and HIPAA, and disability discrimination and accommodation under the Americans with Disabilities Act (ADA).

Continue Reading Opioids, Employees, and Accommodations: an Employer’s Primer on Confronting the Crisis

What is a “hostile work environment?”

This seemingly straightforward three-word phrase has vexed employers, in-house counsel, and HR professionals alike when dealing with employee internal grievances of discrimination and harassment. It’s easy to discipline employees engaged in repetitive discriminatory or harassing behavior in the workplace.

More troublesome for employers, however, is the single racial slur or isolated incident of harassment, which can leave HR directors in search of legal guidance.

Continue Reading Can One Workplace Incident Create a Hostile Work Environment?

The recent turmoil, investigation and controversy surrounding President Donald Trump’s firing of former FBI Director James Comey has thrust the issue of wiretapping into the public and political spotlight. “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!,” President Trump tweeted on May 12, 2017, suggesting that “tapes” of his private conversations with Director Comey might exist. Most recently, the White House, responding to bipartisan criticism, has been pressed to divulge whether there really are any secret recordings of the president’s private conversations with the former FBI Director. Time will tell whether the Trump Administration comes clean and whether any recordings actually do exist (and, if so, what the implications might be).

All of this commotion prompted me to think about wiretapping in the workplace and, specifically, the issue of audio recordings or, as President Trump has expressed, “tapes” of conversations secretly recorded by an employer of its employees. What types of audio or tape recordings are legally permitted in the employment environment?

Continue Reading Wiretapping in the Workplace

To say that Facebook and social media have complicated the relationship between employer and employee and, specifically, what an employee can say or do with respect to his/her work, is an understatement. Social media has added a new dimension to analyzing the intersection between employee speech and protected activity under the National Labor Relations Act (the “NLRA”), and the level of protected activity has reached a new low.

A new line has been drawn in the sand, and the “outer-bounds of protected, union-related” activity has been reestablished by the United States Court of Appeals for the Second Circuit. In National Labor Relations Board v. Pier Sixty, LLC,  the Second Circuit was tasked with the challenge of determining to what extent the NLRA protects an employee’s comments on social media and the point at which an employee’s conduct is so “opprobrious” (i.e. abusive, pejorative, obscene, libelous) as to lose the NLRA’s protection.

In laymen’s terms, the question is: How badly can an employee behave and still keep his job if the employee’s behavior is at least loosely tethered to union-related activity? The answer, as explained below, is very badly.

Continue Reading Say What? The Second Circuit Establishes a New “Outer-Bounds” Limit to Protected Employee Speech

When was the last time you clicked a box indicating your agreement to terms of service without actually reading, let alone understanding, the terms and conditions of service? The use of “clickwrap” whereby users of web-based applications memorialize their acceptance of legal agreements by clicking something, like a check box, is commonplace in the digital world. In the employment arena, however, the use of such web-based platforms and click-to-accept legal agreements is relatively new. Still, courts have not hesitated to apply traditional principles of contract law to these agreements and enforce them against unsuspecting and often oblivious employees, so long as the clickwrap agreements are conspicuously displayed on the web-based platform and reasonably communicate the employer’s terms to its employees.

Continue Reading Read Before You Click: The Enforcement of Web-Based Restrictive Covenants and Arbitration Agreements Against Employees

Despite increased efforts to curb it, sexual harassment in the workplace hasn’t gone away. In fact, news reports of allegations of sexual harassment and lewd behavior lodged against media mogul Bill O’Reilly at Fox News and, separately, against transportation network company Uber, have shined a spotlight on the pervasiveness of sexual harassment in the workplace. As to O’Reilly, several complaints were raised and settled over several years by Fox News before the company asked O’Reilly to leave the network. With respect to Uber, the company allegedly swept “under the rug” several separate claims of sexual harassment made against a particular manager because the manager was a “high performer.” The sad truisms revealed by both the Uber and O’Reilly matters, clearly, are that money talks and rules can be bent (if not broken) for star performers. But there is a silver lining, as important lessons about the correction and prevention of sexual harassment in the workplace can be learned from these two publicly aired situations involving sex discrimination in the workplace.

Continue Reading Successful Strategies for Preventing and Defending Claims of Sexual Harassment in the Workplace

“We must consider what this country has become in deciding what [a statute] has reserved.” So wrote Judge Richard Posner, Circuit Judge of the 7th Circuit Court of Appeals, quoting Supreme Court Justice Oliver Wendell Holmes in Missouri v. Holland, 252 U.S. 416, 433-34 (1920), in his concurring opinion of the 7th Circuit’s landmark ruling that a person who alleges employment discrimination on the basis of sexual orientation has put forth a case of sex discrimination under Title VII. That’s right. It finally happened.

On April 4, 2017, in the matter of Hively v. Ivy Tech Community College of Indiana, No. 15-1720 (7th Cir. Apr. 4, 2017), the 7th Circuit Court of Appeals, sitting en banc, held that Title VII of the Civil Rights Act of 1964, which protects employees from discrimination on the basis of their sex, extends the same protections to employees on the basis of their sexual orientation. The courthouse doors, once closed to homosexual or bisexual employees seeking relief from discrimination under Title VII, have opened. Some might call it judicial activism. Others might call it common sense. Either way, the Title VII landscape has shifted.

Continue Reading Sex Discrimination Includes Sexual Orientation Says the 7th Circuit

Arguably the most important law guaranteeing a worker’s right to fair pay is the federal Fair Labor Standards Act of 1938 (“FLSA”), which defines the forty hour workweek, sets the federal minimum wage, establishes requirements for overtime pay, establishes recordkeeping requirements for employers, and places restrictions on child labor. In addition, the FLSA requires employers to pay employees overtime (1 and ½ times their regular rate of pay) if they work over 40 hours in a single work week.

Employers often mistakenly believe that just because their employees are salaried, and not wage earners, then the employer is immune from paying overtime and those employees are automatically exempt from the FLSA overtime requirement. However, that’s not true. There are categories of employees who are exempt from receiving overtime pay, but that is dependent on the unique circumstances of the employment. For example, certain administrative, executive, professional and highly compensated employees may not be entitled to receive overtime pay—but even that might be changing soon.

On June 30, 2015, the United States Department of Labor (“DOL”) announced its proposed revisions to the overtime exemptions for “white collar” employees, i.e. those holding executive, administrative and professional jobs. The last time the FLSA was updated was in 2004, which established a salary threshold for the white collar exemption at $455/week ($23,660/year). The DOL’s new proposal doubles this salary threshold. Specifically, in order for an executive, administrative or professional employee to be exempt from overtime, at a bare minimum the employee must be salaried “at the 40th percentile of weekly earnings for full-time salaried workers ($921 per week, or $47,892 annually).”

Should this proposal be adopted, employees—white collar, blue collar or no collar—who earn less than $47,892 annually will be entitled to overtime pay no matter what. This is a significant upward departure from the current salary threshold, and is an additional hurdle to the other constituent tests employers must satisfy to demonstrate their employees are “bona fide” executive, administrative or professional employees. This means that even if an employee performs traditional “white collar” duties, the employee will be entitled to receive overtime pay if that employee earns less than this new, heightened salary minimum.

For example, under Section 13(a)(1) of the FLSA, as defined by its Regulations, 29 CFR Part 541, to qualify for the administrative employee exemption—in addition to the salary requirement—an employer must show that the employee primarily performs office work directly related to the management or business operations of the employer or the employer’s customers, and that “the employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.” So, in addition to an employer proving that an employee is a bona fide administrative employee, the employer also must pay that employee at least $47,892 in annual salary to exempt the employee from receiving overtime pay.

Importantly, the DOL’s proposal also includes a mechanism “for automatically updating the salary and compensation levels going forward to ensure that they will continue to provide a useful and effective test for exemption.” As a result, the DOL projects the new annual salary floor would increase to $50,440 in 2016.

Additionally, the DOL has proposed an increase to the total annual compensation requirement needed to exempt highly compensated employees “to the annualized value of the 90th percentile of weekly earnings of full-time salaried workers,” which would be $122,148 annually if made effective immediately.

Employers should start planning for these new salary increases, as well as the resultant increases in the number of employees who will be entitled to receive overtime pay. With this new regulatory change on the horizon, employers should not delay in auditing their personnel by reviewing their current workforce composition and determining which employees classified as exempt will remain exempt—or become non-exempt—under these new regulations.

Furthermore, while many state wage and hour laws closely track or follow the FLSA, employers must remain mindful of the differences between the FLSA and their own state’s wage and hour regulations. For example, while the current requirements of Pennsylvania’s Minimum Wage Act, 35 P.S. § 333.101, et seq., and regulations at 34 Pa. Code § 231.1, et seq., and New Jersey’s Wage and Hour Law, N.J.S.A. 34:11-56a, et seq., are substantially similar to the current federal standards, employers must ensure compliance with both federal and applicable state wage and hour laws where there is any difference or deviation between the two.

Notably, the FLSA, 29 USCS § 218 (and its regulations at 29 C.F.R. Part 541.4) provides that federal law does not affect the enforcement of state overtime requirements. Employers should know that whichever law, state or federal, provides the greater benefit and protection to its employees will be the one enforced.

In conclusion, employers concerned about these anticipated changes to the framework of the FLSA would be wise to consult with their employment counsel to ensure compliance not only with these new federal regulations but, additionally, to review and ensure compliance with all applicable state laws.

Apple, Inc. retail employees who allege they should have been compensated for off-the-clock time spent undergoing the store’s mandatory screening processes have renewed their bid for class certification in federal court in California. In the complaint filed in Frlekin v. Apple, Inc., Docket No. 3:13-CV-03451 (N.D. Cal.), the plaintiff employees alleged that the global technology giant engaged in illegal and improper wage practices in violation of the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. §201, et seq., and California labor laws, by requiring store employees to wait in line and undergo off-the-clock security bag searches and clearance checks when they left for meal breaks or at the end of their shifts. This practice, the employees alleged, deprived them of wages they should earn during what they contend is compensable time at “work.”

In opposing class certification, Apple has maintained class certification should be denied because (i) different stores implement the screening policy differently, (ii) employees who do not bring bags or their own Apple devices to work are not subjected to the bag and technology screenings, and (iii) there is not sufficient commonality in the class, particularly with respect to the plaintiffs’ individual wage and overtime claims.

On May 13, 2014, the court denied Apple’s bid for dismissal, expressing that the fact issues concerning the implementation of the screening policy at various stores and under various circumstances precluded the entry of summary judgment. Then, in that same order, the court stayed the Apple litigation pending the outcome of Busk v. Integrity Staffing Solutions, Inc., 135 S. Ct. 513 (2014), another employee screening case for which the United States Supreme Court had granted certiorari.

Continue Reading Apple, Amazon and the Wage Payment Issues Arising from Employee Security Screenings

Uber – the transportation networking company which, through the use of its technological platform and smart phone application, connects consumers (passengers) with transportation providers (private vehicle drivers) and facilitates the ride sharing service – may be the next victim of the continuing wave of employee misclassification lawsuits sweeping the nation. On June 3, 2015, in Berwick v. Uber Technologies, the California Labor Commissioner ruled that an Uber driver in California is an employee, and not an independent contractor, of the ride-hailing company. In relevant part, the labor commission found that “the minimal degree of control that [Uber] exercised over the details of the work was not considered dispositive because the work did not require a high degree of skill and it was an integral part of the employer’s business” and that, in reality, Uber is “involved in every aspect of the operation.” As a result, Uber was ordered to reimburse its driver’s legitimate, reimbursable expenses pursuant to California Labor Code § 2802.

Though the decision of the California Labor Commission is not binding – Uber already has appealed – the lawsuit and underlying decision are significant. The decision is symbolic in that it jeopardizes Uber’s contractor-based business model. Uber maintains that it is “nothing more than a neutral technological platform, designed simply to enable drivers and passengers to transact the business of transportation.” Given the Commissioner’s ruling and the overarching and virtually universal presumption of employment, courts may not agree with Uber.

Continue Reading The Uber Ruling and the Issue of Employee Misclassification