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Brian Hall partners with employers of all sizes – from small family-owned businesses to multi-national Fortune 500 companies – to help them effectively manage the issues they face on a daily basis in an increasingly regulated workplace. Brian focuses much of his practice on educating and assisting employers in their use of 21st century technology in their workplaces and its impact on cybersecurity, employee privacy, and trade secret protection.

Wait…. What?

Yes, in Shore Point Distribution Co., Inc., the NLRB’s General Counsel’s Office issued an Advice Memorandum yesterday (dated October 15, 2015) in which it stated that an employer did not violate Section 8(a)(5) of the National Labor Relations Act by failing to bargain with union before installing a GPS device on an employee’s truck.

In March 2015, the employer became concerned that one of its employees was taking more time than other drivers to complete the same routes. It therefore hired a private investigator to follow and videotape the driver on his routes. The employer placed a GPS device on the employee’s truck to ensure that the investigator would be able to regain contact with the truck if he lost visual contact during the course of the surveillance. Over the course of his surveillance of the employee, the investigator personally observed the employee engaging in work rule violations including operating his truck in an unsafe and illegal manner, failing to follow specified delivery times, stealing time, and falsifying his daily log. Finally, after the GPS located the employee stopped in the employee’s hometown, he located the employee’s truck parked in the driveway at his home during work hours. Thereafter, the employer terminated the employee based on the investigator’s report. There is no indication that the employee was ever aware that the GPS device had been installed on his truck or that the employer had notified its employees that it might use GPS tracking for any reason in association with their employment.

Hard to see the NLRB’s General Counsel going along with this. Obviously, there are some other facts at play here.

First, the collective bargaining agreement contained work rules that prohibited drivers from “stealing time” and requiring that they adhere to Department of Transportation regulations mandating that drivers accurately account for their time on daily log records.

Second, the employer “has a practice of retaining a private investigator to follow an employee suspected of stealing time and using any results obtained through the investigator’s personal observations for disciplinary purposes.” The union was aware of this practice and “has no objection to it.”Continue Reading NLRB General Counsel Advice Memo absolves employer for not bargaining over use of GPS devices to track employee

Back in September of last year, we reported on an NLRB decision finding that a Connecticut sports bar, Triple Play Sports Bar & Grille, had unlawfully terminated two employees – one of whom commented on a former employee’s criticism of the employer’s handling of the tax withholding on employee paychecks and the other who clicked “Like” in response to that comment. This past week, the Second Circuit, on Triple Play’s petition for review, upheld the Board’s decision, in a case captioned Three D, LLC, d/b/a Triple Play Sports Bar & Grille v. NLRB.

In its decision, the Second Circuit held that the employees’ respective comment and “Like” were protected concerted activity under Section 7 of the National Labor Relations Act because they both related to ongoing employee concerns over the employer’s workplace tax withholding and their resulting tax liabilities. The court also concluded that the employees’ Facebook communications were not so disloyal or defamatory as to lose the protection of the Act. Specifically, the court found that the employees did not disparage the employer’s products or services and their communications were not “maliciously untrue.”

The court was not swayed by any profanity contained in the one employee’s comment because it was not made in the presence of or directed at customers and did not reflect the employer’s brand. According to the court, accepting Triple Play’s argument that the Facebook discussion took place “in the presence of customers” could lead to the undesirable result of chilling virtually all employee speech online. “Almost all Facebook posts by employees have at least some potential to be viewed by customers.” As a result, the court upheld the Board’s order requiring the employer to offer reinstatement and full back pay to the terminated employees.Continue Reading Second Circuit upholds NLRB finding that Triple Play Sports Grille unlawfully terminated employees for Facebook postings

As we enter football season, workforces should prepare for the estimated 25 million fantasy sports enthusiasts who spend at least an hour of work time managing their teams each week during the 13- to 17-week football season. (See more here.)  Distracted employees can reduce productivity, cause workplace accidents, and potentially impact the bottom line. As such, employers that are concerned with such productivity issues should put proper procedures in place to address these issues head on.

The first question of course, however, is are fantasy football leagues even legal? On the federal level, the Unlawful Internet Gambling Enforcement Act (“UIGEA”) provides that “no person engaged in the business of betting or wagering may knowingly accept” funds “in connection with the participation of another person in unlawful Internet gambling.” It does, however, exempt fantasy sports so long as the outcome of any contest reflects the relative knowledge or skill of the participants rather than chance, has an outcome that is determined predominantly by accumulated statistical results of sporting events, but not solely on a single performance of an individual athlete. In addition, for the exemption to apply, all prizes and awards must be established and made known before the start of the contest.
Continue Reading Fantasy sport issues in the workplace

The Second Circuit Court of Appeals in Glatt et al. v. Fox Searchlight Pictures, Inc. recently rejected the Department of Labor (“DOL”) six factor test for determining whether an individual has been properly classified as an unpaid intern in favor of another test that looks at whether the intern or the employer is the primary beneficiary of the relationship.

The DOL’s six factors are:

  1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
  2. The internship experience is for the benefit of the intern;
  3. The intern does not displace regular employees, but works under close supervision of existing staff;
  4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
  5. The intern is not necessarily entitled to a job at the end conclusion of the internship; and
  6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship. Rejecting the DOL test, the court (as discussed below) elected to adopt a test that it believed aligned more closely with common law and the underlying purpose of an unpaid internship.

In Glatt, the Second Circuit reversed a district court decision that held, in part, that three individuals working for either Fox Searchlight or Fox Entertainment Group were improperly classified as “unpaid interns” in accordance with the FLSA and the New York Labor Law (“NYLL”). In doing so, the Second Circuit rejected the district court’s analysis that relied on the DOL test. The six factors came directly from a 1947 Supreme Court decision in which the Supreme Court refused to recognize unpaid railroad brake trainees as employees under FLSA. The Glatt court rejected the DOL test because it relied on what it considered to be an outdated Supreme Court decision that failed to reflect the purpose of the modern internship.
Continue Reading Second Circuit rejects DOL test for unpaid internships

Following on the heels of its proposed rule expanding the number of employees entitled to overtime under the FLSA, the Department of Labor’s Wage & Hour Division has issued an Interpretation Letter that addresses independent contractor misclassification. Though the Letter, issued by WHD Administrator David Weil, contains no earthshaking new compliance obligations for employers, it

Summertime brings company picnics, charity walks and softball leagues. Great moments for increasing employee morale, but these activities may lead to employer liability if an employee is injured while participating in such activities.

In Ohio, employees injured while engaged in an employer-sponsored recreational or fitness activity are entitled to workers’ compensation benefits unless the employee

On April 16, 2015, the EEOC released its long-anticipated proposed rule on the extent to which the ADA permits employers to offer incentives to employees to promote participation in wellness programs that are employee health programs. For the most part, the rule reflects the EEOC’s efforts to make the ADA’s requirements consistent with the requirements

Almost a year ago, we wrote that a panel of the Sixth Circuit in EEOC v. Ford Motor Company, bucking the trend elsewhere, had held that an employer could be required to permit an employee to work from home as a reasonable accommodation for a disability. Last week, however, the entire Sixth Circuit, in an 8-5 decision, issued an opinion overturning the panel’s decision and finding that in-person attendance at the work site is generally an essential function of most jobs, particularly those that are interactive. The court recognized that advances in technology may mean that regular on-site attendance won’t be necessary for every job, but noted that the job of Jane Harris, on whose behalf the EEOC brought suit, as a resale buyer for Ford was not one that could be done from home.

Through the years, Ford had made numerous attempts to reasonably accommodate Ms. Harris, who suffered from irritable bowel syndrome, but none of these attempts, which included trials of telecommuting, were successful. Ultimately, Ms. Harris asked Ford to be permitted to work from home up to four days per week. The nature of her job, however, required teamwork, meetings with suppliers and stampers and on-site availability to participate in face-to-face interactions. These factors in the Court’s opinion all necessitated Ms. Harris to achieve regular and predictable on-site attendance. Accordingly, the Court upheld her termination from employment.
Continue Reading Sixth Circuit in EEOC v. Ford: Sometimes showing up really is an essential function of the job

I’m looking forward to joining my colleagues Dennis Hirsch and Jay Levine for a roundtable discussion of “Big data, data analytics and the law: What your company needs to know about the next big thing” on May 13. Here is a glimpse into what I plan to talk about from the employment lawyer’s perspective:

Even if we don’t know exactly how big data works, we know what it can do for us in our daily lives. Movie suggestions on Netflix. Targeted coupons at the grocery store. Cheap airfare and hotel rates. Facebook suggestions of people we may know. There is a certain creepiness to all of this but many (most?) of us seem willing to overlook it for the convenience and opportunities it provides.

Human resources departments now are figuring out how to use big data in the workplace. LinkedIn was one of the first businesses to recognize the value that data held for employers. At its most basic level, LinkedIn can steer its individual members to potentially attractive jobs that fit their profile and, for recruiters, it provides a rich database of candidates, including people who aren’t even looking for a new job. But there are a lot more than just recruiting opportunities. Companies like Knack now promote tests like Wasabi Waiter and Dungeon Scrawl that it claims will reveal job applicants’ talents, traits and skills to permit employers to identify the best candidate for their needs. JP Morgan Chase apparently has developed software that analyzes its own employees’ data to try to identify which ones are most likely to “go rogue,” so it has time to stop them before they do.
Continue Reading Big data in the workplace

We all pretty much know the drill at this point. Organization announces data breach, sends out notices as required under state and/or federal law to those individuals that are affected, offers some kind of identity theft protection or credit monitoring service, awaits public criticism and backlash. The NLRB and the American Postal Workers Union (“AWPU”)