Thursday, May 28, 2015

Fired for What!? - Rejecting Creepy Surveillance

An employee filed invasion of privacy, wrongful termination, and other California state law claims against her employer based on its creepy smartphone surveillance (Complaint here). The woman claimed her employer required her to install Xora, which includes a GPS function, on her phone. She further alleged that her boss required her to keep her phone on "24/7", and told her that he would monitor her even during off-duty hours right down to how fast she was driving at any given time. When she uninstalled the app, she got fired.

There are often good reasons for GPS surveillance of on-duty employees, but "24/7" tracking seems a bit much.

HT: My colleague, Dave Weixel, who emailed me this article: Sales Exec Claims she was Fired for Removing App that Allowed her Boss to Track her 24/7.

Wednesday, May 27, 2015

Come 'n get 'em: New FMLA Forms!

The Department of Labor posted new FMLA forms:

Knock yourselves out. 

HT: Jeff Nowak on FMLA Insights. I discovered his post via the CaseText Employment Law Community. Have I already mentioned that I'm a fan of CaseText? Why, yes I have

Third Circuit Defines "Overnight Stay" for FMLA

Under the FMLA, eligible employees of covered employers may take leave for a "serious health condition" (or to care for a family member with such a condition). A "serious health condition" is defined to include "inpatient care in a hospital." Department of Labor regulations define "inpatient care" to include "an overnight stay." Did you follow all of that?

In Bonkoswki v. Oberg Industries, Inc. (opinion here), the Third Circuit held that an "overnight stay" must span two different calendar days. The start and stop times are measured from the time of admission to a hospital until the time of discharge. Mr. Bonkoswki went to the hospital before midnight, but was not admitted until after midnight (he checked out the evening following midnight). So, he was not covered (because the admission time is the one that counts).

Wait, what if somebody is admitted at 11:59 PM and discharged at 12:01 AM... you're telling me they're covered!? Actually, no. In addition to spanning two calendar days, the stay must be for a "substantial period of time." How long is that?
Under the circumstances, a minimum of eight hours would seem to be an appropriate period of time. However, because we need not decide this issue to resolve this dispute, we leave this issue of the requisite length of time for another day.
Soooo, the court's not going to answer that question... but it's 8 hours.

Bonkoswki was a split decision. The dissent notes a series of seemingly unfair and illogical disparities in how the FMLA will apply to different employees under the majority's opinion:
For example, an employee is being driven to the hospital at the onset of his illness, and his transportation becomes disabled. He arrives at the hospital at 12:05 a.m. and remains in the hospital until 7 p.m. the next evening, a total of nineteen hours. This employee would not qualify for FMLA relief. But a separate employee arriving at 11:55 p.m. would merit relief. Or, consider the employee who arrives at 11:55 p.m., but because of staffing problems, the employee is not formally admitted until 12:02 a.m. He would not qualify for FMLA relief.
While I'm sympathetic to this fairness argument, the last thing employment law needs is another "totality of the circumstances" test. They're near-worthless to employers who are just trying to figure out how the law applies to their circumstances. By contrast, the "bright line" rule of the majority will create certainty in this one small corner of the FMLA.


Tuesday, May 26, 2015

Reflections from a First Year Adjunct

Well, I survived. I made it through my first year of teaching employment law (LER201 - The Employment Relationship: Law and Policy) at Penn State. I figured I'd jot down some thoughts.

It's harder than I thought. More accurately: it's more work than I thought it would be. Have you ever had to give a 75-minute presentation? For my attorney-readers, have you ever delivered a 75-minute substantive CLE? Now, have you ever presented 27 in 15 weeks? It takes a lot of work. Even the second semester, after I had already prepared most of my materials in the fall, it took a lot of time and energy to fine-tune Power Point slides, re-read the assignments, and brush up on the topic.

The students are better students than I expected. I graduated from high school in 1994 - the term "slacker" was slapped on Generation X, and to some extent we delivered on that expectation in the classroom (somehow, I think we turned out just fine anyway, and definitely not slackers in the workforce). Millenials face similar criticism - they're "entitled" and don't think they actually have to work for anything. I'm happy to report that I see no evidence to support such generalizations.

Overall, they attended class, prepared for class, participated in class, and generally understood the material far better than I anticipated. Okay, not every single one - but generally.

I learned a lot too. The course covered "employment law," which includes a lot of topics. I have personal experience in most of the general areas, but not all of them. For example, workers' compensation. I just don't do any WC work (occasionally I'll chip in on a case to help an attorney at our firm). But I learned a lot about WC from having to teach it. I also discovered new points of law in the areas I already knew pretty well. And, it always helps to review.

Not to toot my own horn, but I feel comfortable with my knowledge of employment law, and my ability to answer questions on this topic. The students still manage to ask questions I can't answer though! Their inquisitive nature is another part of their collective personality that I greatly admire.

I had a lot more time than I thought. Since law school, I have always felt very busy working as an associate at a law firm. Then I added this blog. Then I added a child. Then I became president of State College Sunrise Rotary. Then I started teaching this 3-credit course at Penn State. Somehow, I always found more room. Obviously, at some point along the way, I was not quite as busy as I thought.

Now that my course is over (until next fall), I have this nervous feeling that I'm supposed to be doing something... surely there's a chapter of the textbook I need to read, or a homework assignment to grade, or some email from a student with some issue to address. I guess this feeling is called "free time." I loved teaching these past two semesters, but I'm looking forward to enjoying a little more free time too.

Thursday, May 21, 2015

May Edition of Employment Law Blog Carnival is LIVE! #ELBC

This month, Jon Hyman hosts: Employment Law Blog Carnival: The “Wreck of the Old 97” Edition #ELBC. He went with an Old 97s theme. I was not familiar with the band. However, by pure coincidence I was listening to Rhett Miller's solo album this weekend (unbeknownst to me, he is the lead singer of the band). Good music, and good employment law blog carnival.

Wednesday, May 20, 2015

SCOTUS Returns to Unanswered Question from Symczyk

Remember the FLSA "pick-off" case? In Genesis Healthcare v. Symczyk, the Court held that if an FLSA collective action becomes moot as to the only plaintiff (before additional plaintiffs were added), then the entire claim becomes moot (and the case is dismissed).

The Supreme Court assumed, without deciding, that "an unaccepted Rule 68 offer that fully satisfies a plaintiff’s individual claim is sufficient to render that claim moot." Well, now the Court returns to the unanswered question.

On Monday, the Court granted certiorari in Campbell-Edward Co. v. Gomez (SCOTUSblog page here). The case presents Rule 23 class action claims under the Telephone Consumer Protection Act - what's that got to do with Symczyk? I'm glad you asked! One of the questions presented is:
Whether a case becomes moot, and thus beyond the judicial power of Article III, when the plaintiff receives an offer of complete relief on his claim.
Justice Kagan and the "liberal bloc" appear to have tipped their hand in the Symczyk dissent (case is not mooted by an unaccepted offer of full relief). We'll see how this thing plays out next SCOTUS season.

Sidenote: This case shows why Justice Kagan was wrong that the Symczyk decision was a "one-off" with no real world application. If SCOTUS now holds that the offer does moot the case, we would otherwise be uncertain whether that mooted the entire FLSA collective action (because Campbell-Edward is a Rule 23 TCPA case). Symczyk tells us that the entire case would be moot (and dismissed) under the FLSA's collective action rules. Of course, she was already wrong because there could be any number of other reasons a lead plaintiff's case could become moot... but I digress.

Tuesday, May 19, 2015

SCOTUS on ERISA Limitations Period

Yesterday, the Supreme Court issued its decision in Tibble v. Edison International.

Justice Breyer
Supreme Court Collection
by Steve Petteway
ERISA has a 6-year statute of limitations that runs from “the date of the last action which constitutes a part of the breach or violation” or “in the case of an omission the latest date on which the fiduciary could have cured the breach or violation,” 29 U. S. C. §1113. So, let's say a fiduciary selected mutual fund investments in 1999 - and, similar but cheaper mutual funds were available. Now, let's say beneficiaries file a breach of fiduciary duty claim under ERISA in 2007. Timely?

If you said, "2007 is more than six years after 1999, so NO," then welcome to the 9th Circuit's world. But we're in Justice Breyer's world now (joined by a unanimous Supreme Court):
Under trust law, a trustee has a continuing duty to monitor trust investments and remove imprudent ones. This continuing duty exists separate and apart from the trustee’s duty to exercise prudence in selecting investments at the outset . . . . A plaintiff may allege that a fiduciary breached the duty of prudence by failing to properly monitor investments and remove imprudent ones. In such a case, so long as the alleged breach of the continuing duty occurred within six years of suit, the claim is timely.
The Court declined to express a view regarding the precise scope of this continuing obligation (or decide what kind of review, if any, was required under the circumstances in this case).