Wednesday, November 15, 2017

Precedential decision on social media and unemployment compensation

On Monday, the Commonwealth Court of Pennsylvania issued a precedential decision in Waverly Heights, Ltd. v. UCBR. The employer argued that the unemployment compensation claimant was terminated for "willful misconduct," which would disqualify her for UC benefits, for the following tweet:
@realDonaldTrump I am the VP of HR in a comp outside of philly an informal survey of our employees shows 100% AA employees voting Trump!
The employer first argued that the tweet violated its policy:
[Employer] has an interest in promoting and protecting its reputation[,] as well as the dignity, respect, and confidentiality of its residents, clients, and employees as depicted in social medial, whether through [Employer’s] own postings or that of others. Towards that end, [Employer] will actively manage the content of its social media sites to uphold the mission and values of the company. Also, [Employer] expects employees who identify themselves with [Employer] in either internal or external social media to conduct themselves according to this policy.
The Court rejected this argument, finding that she did not "identify" herself with the employer. The employee did not identify the employer in the tweet. The employer argued that it was easy to find out who she worked for, and that she followed the employer's Twitter account (and therefore appeared in her list of accounts she follows). That was not enough.

In a last ditch effort, the employer lobbed a few Hail Mary's - For example, that she conducted the informal survey on work time. No dice. There was no evidence that she conducted it on work time, and routine conversations about current events would not be willful misconduct in any event.

Maybe it was willful misconduct because it was racist (specifically referencing AA employees and targeting them for the survey)? Nope. First, the employee claims "AA" referred to administrative assistants. Second, the tweet says she surveyed "our employees" not just the "AA" employees.

Final ruling: The employer did not meet its burden of establishing willful misconduct and the employee is eligible for UC benefits. Note that nothing in this decision relates to whether the employer had a right to terminate the employee - just whether she received UC benefits.

Questions I had: The format of the tweet suggests that it is a "Reply" - meaning that the claimant was directly responding to a tweet from now-President Trump. What did that tweet say? What were the trending topics? Was there additional conversation around the same time on Twitter? These contextual clues could give us a better understanding of the claimant's tweet.

Tuesday, November 14, 2017

High school friends win Equal Pay Act case

The law can get complicated . . . and then there's this case, which, according to the EEOC press release, is pretty straightforward:
[T]wo high school friends, Jensen Walcott and Jake Reed, applied to work at Pizza Studio as "pizza artists" in 2016. After both were interviewed and offered jobs, Walcott and Reed discussed their starting wages. Upon learning that Reed was offered 25¢ more per hour, Walcott called the restaurant to complain about the unequal pay. When she did so, the company immediately withdrew its offers of employment from both Walcott and Reed.
Not official use.
EPA claims can get pretty tricky because employers have so many different factors they can point to when trying to justify pay disparities. I suspect there are fewer defenses available when the plaintiff is a high school-level "pizza artist" (and the retaliation sounds pretty blatant). In any event, what did they win?
Federal District Judge Carlos Murguia's order awards both Walcott and Reed back pay for lost wages as well as liquidated, compensatory, and punitive damages . . . .today's order also requires [Defendant] to implement significant policy changes, conduct training, collect and analyze pay and other data, and report data and complaints to the EEOC, each in order to prevent future violations of the law.
The EEOC press release also reminds us about their priorities identified in the Strategic Enforcement Plan:
1. Eliminating Barriers in Recruitment and Hiring.
2. Protecting Vulnerable Workers, Including Immigrant and Migrant Workers, and Underserved Communities from Discrimination.
3. Addressing Selected Emerging and Developing Issues.
4. Ensuring Equal Pay Protections for All Workers.
5. Preserving Access to the Legal System.
6. Preventing Systemic Harassment.

Friday, November 10, 2017

O'Reilly's alleged "proven in court" clause

With all of the sexual harassment allegations flying around the media and entertainment industries, I've been trying to pickup tidbits that relate to law (and contracts). One story that stuck out to me was: O’Reilly Contract Barred Fox From Firing Him Unless Claims Proven In Court. According to testimony from an "Independent Director of 21st Century Fox," there was "an employment agreement with Bill O’Reilly which stated he could not be dismissed on the basis of an allegation unless that allegation was proved in court."

In retrospect, it's easy to see how this could allow a serial sexual harasser to keep his job so long as no litigation or criminal charges were ever taken all the way to trial and proven in court. That's a problem. However, at a high level, job security is one of the primary reasons people sign employment contracts to begin with.

Generally, employees serve "at will" and can be terminated for any reason at all (so long as that reason is not specifically prohibited by law or public policy) or even no reason. A contract is a way to afford greater security, whether it's the multi-millionaire pundit or the union member with a CBA.

In fact, good luck finding a CBA that does not require "just cause" for terminating employees, along with a grievance procedure that ends in arbitration. Is a "prove it in arbitration" clause really that different from a prove it in court clause?

Ultimately, requiring allegations to be proven in court prior to termination may be too high of a bar (and most employers would not want that burden). However, it is not at all uncommon for employees to insist on some type of contractual due process prior to termination; and, it's a benefit many employers are willing to provide to secure labor. We shouldn't lose sight of that when considering these issues.

Thursday, November 2, 2017

Fired for What!? - iPhone X footage

Employers often have a special interest in protecting information as confidential. For example, lawyers owe their clients a duty of confidentiality, Coke has the textbook trade secret example of the "secret formula," and tech gadget companies protect their product development.

Unfortunately, sometimes protecting those secrets leads to harsh results. One such example: Apple fires iPhone X engineer after daughter’s hands-on video goes viral (daughter's tearful response video included). Short version: daughter visits dad at Apple campus and records footage of the unreleased iPhone X; she posts it to YouTube; it goes viral; and Apple fires dad.

You have to feel a little bad for the father-daughter duo. That said, it should be common sense (and, apparently, formal Apple policy) that employees can't have guests recording video of unreleased products. It's generally a good idea for employers with confidential information to have confidentiality agreements with employees and emphasize the importance of protecting that information.

Monday, October 16, 2017

3d Cir: Pay Employees for Breaks Under 20 Minutes

Ah, the miracle of computers. If employees work on computers, employers can track whether they are working right down to the exact minute. That's what the employer did in Sec. U.S. Dept. of Labor v. American Future Sys., Inc. If employees were logged off for more than 90 seconds, they did not get paid for that time.

This runs counter to the Department of Labor's regulations regarding short breaks:
Rest periods of short duration, running from 5 minutes to about 20 minutes, are common in industry. They promote the efficiency of the employee and are customarily paid for as working time. They must be counted as hours worked. Compensable time of rest periods may not be offset against other working time such as compensable waiting time or on-call time.
Not official use.
29 C.F.R. § 785.18. Ultimately, the Third Circuit (jurisdiction including Pennsylvania) adopted this bright line rule, holding that "the Fair Labor Standards Act does require employers to compensate employees for all rest breaks of twenty minutes or

This is a bright line rule that prevents absurdities like forcing employees off the clock for two-minute bathroom breaks. However, as the employer (and some amici) argued, it also limits the flexibility of the employees. One child advocacy group even argued that it harms children because it will prevent parents who work from home from taking short breaks to "address child-related needs."

Before: These employees could take breaks whenever they wanted for whatever reason they wanted, so long as they logged off. That's good on flexibility, but they don't get paid for short breaks, which harms their bottom line.

After: We don't know for certain yet. I have counseled employers that the FLSA requires them to pay for breaks under 20 minutes for years (based on the regulation). The usual result is that they adopt a policy that employees only get one or two paid breaks (sometimes one in the morning and one in the afternoon) of 15 minutes. That's not very flexible - but, without such a policy employers run the risk of employees taking any number of paid 20 minute breaks throughout the day. That's simply not a viable business practice.

* None of this applies to bona fide meal breaks of 30 minutes or more, which are generally unpaid.

Thursday, October 12, 2017

About that Barstool Sports contract, and contracting around the right to be offended

Twitter highlighted a "Moment" featuring contractual language allegedly used by Barstool Sports:
Predictable Twitter outrage ensued.

What's the point of this clause? I presume that it relates to harassment claims. Harassment is a form of discrimination, and it is prohibited by the workplace anti-discrimination statutes (most notably, Title VII at the federal level). One component of a harassment claim is that the harassment must be objectively offensive to a reasonable person and subjectively offensive to the actual victim.

Logo used in commentary on Barstool Sports,
not authorized use.
A hypothetical: If you show up to work every day and there are people engaged in sexual intercourse right in front of you . . . that's probably a hostile work environment. However, if you work for a porn company, that's pretty much part of the gig (assuming you work in production). That does *not* mean it's impossible to sue for sexual harassment at a porn company though. For example, if an accountant is pressured to sleep with the head of accounting at a porn company - that's still unlawful harassment.

What does the Barstool contract do?

1. It puts potential employees on notice that the creative process (and their end product) includes potentially offensive jokes and speech, and maybe even nudity and "sexual scenarios." I have only a passing familiarity with Barstool . . . it is *not* a porn company, but it does include material that may be offensive. The contract will presumably weed out people who are offended.

2. If an employee tries to file a harassment lawsuit claiming that (s)he was subjectively offended (one of the elements of a harassment claim) by offensive jokes, that employee will be confronted with the contract. It would probably weaken their claim.

What does the Barstool contract not do?

Employees cannot preemptively sign away their rights to sue for harassment or file a charge with the EEOC. If that's what Barstool is trying to do, it will not work. The employees can still pursue harassment claims. I doubt the contract would have any effect on a quid pro quo claim, or a hostile work environment claim premised on harassment personally directed at the employee (there's a not-so-fine line between offensive jokes and commentary for publication, and directed discriminatory harassment).

* This analysis assumes the person signing the contract is an employee and not an independent contractor.

Thursday, October 5, 2017

Lawffice Links - FAA v. NLRA

The Supreme Court is back! On Monday they heard oral arguments in Epic Systems Corp. v. Lewis, or as I call it, FAA v. NLRA. The issue is:

Whether an agreement that requires an employer and an employee to resolve employment-related disputes through individual arbitration, and waive class and collective proceedings, is enforceable under the Federal Arbitration Act, notwithstanding the provisions of the National Labor Relations Act.

Here are some fresh-baked Lawffice Links on the topic:
My prediction: Closely divided court, with a slight edge for the FAA.