Thursday, December 18, 2014

December Employment Law Blog Carnival is LIVE! #ELBC

Another edition of the Employment Law Blog Carnival - or #ELBC as the cool kids call it - is now available. Check out Discrimination, Contracts, & Compliance, Oh My! #ELBC is Here! by Blake McCammon on Blogging4Jobs. And yes, Lawffice Space managed to survive the no-doubt arduous screening process and made the cut.

Wednesday, December 17, 2014

PA Supreme Court Affirms Nine-Figure Judgment Against Wal-Mart

On Monday, the Pennsylvania Supreme Court issued its long-awaited opinion in Braun v. Wal-Mart. A jury trial ended with a $188 million verdict in favor of a class of 188,000 Wal-Mart employees.
[The employees] asserted that Wal-Mart had promised them paid rest and meal breaks, but then had forced them, in whole or in part, to miss breaks or work through breaks, and also to work “off-the-clock,” i.e., to work without pay, after a scheduled shift had concluded.
On appeal, Wal-Mart argued that "the class action proceedings in this case improperly subjected [Wal-Mart] to a 'trial by formula.'"

Frankly, the legal analysis was pretty vague and pretty brief for a case of this complexity and magnitude. The Court did explain:
In this case, where systemic wage-and-hour violations were asserted, evidence was presented by appellees that, if believed, supported an inference that Wal-Mart managers company-wide were pressured to increase profits and decrease payroll by understaffing stores through the preferred scheduling system, and that these factors, including the managers’ annual bonus compensation program, impeded the ability of employees, across the board, to take scheduled, promised, paid rest breaks.
The Court rejected Wal-Mart's assertion that it was subjected to a "trial by formula" and instead concluded that a proper "replicated proof" method had been used. I'm guessing there will still be some "massaging" of the final number - but it looks like Wal-Mart will be on the hook for a couple hundred million dollars.

Tuesday, December 16, 2014

Lawffice Links - NLRB Quickie Elections

Last week, the NLRB published its final rule regarding changes to union election procedures - sometimes dubbed "quickie" or "ambush" elections. I baked some Lawffice Links to mark the occasion:

Enjoy!

Friday, December 12, 2014

NLRB: Employees have presumptive right to employer's email for Section 7 purposes

Once upon a time (i.e. 2007), the NLRB held that employees had no statutory right to use an employer's email system for "Section 7" purposes. Section 7 of the NLRA protects things like concerted activity for mutual aid and protection, collective bargaining, union formation, etc. Employers could bar employees from using their email systems for these activities so long as they did so in a way that did not discriminate against NLRA-protected activity (e.g. a ban on all personal communications, general nonsolicitation policies, etc.). The case was Register Guard.

Surprise! Yesterday, after deep and thoughtful analysis (i.e. a different political party appointed the majority), the NLRB overruled Register Guard. That case is Purple Communications. The NLRB describes its decision in a nutshell:
[W]e decide today 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.
And now, the law is settled . . . until at least 2016. As Dan Schwartz blogged: "It's not right or wrong. This is just how the NLRB works."

Wednesday, December 10, 2014

SCOTUS: Post-Shift Security Screenings are Not Compensable

Yesterday, the Supreme Court issued its opinion in Integrity Staffing Solutions, Inc. v. Busk. Justice Thomas, for a unanimous court, explained the case and its holding:
The employer in this case required its employees, warehouse workers who retrieved inventory and packaged it for shipment, to undergo an antitheft security screening before leaving the warehouse each day. The question presented is whether the employees’ time spent waiting to undergo and undergoing those security screenings is compensable under the Fair Labor Standards Act of 1938 (FLSA), 29 U. S. C. §201 et seq., as amended by the Portal-to-Portal Act of 1947, §251 et seq. We hold that the time is not compensable.
Under the Portal-to-Portal Act, activities that are postliminary to the employees' principal activities are not compensable. Past precedent holds that "principal activities" encompass those activities that are "integral and indispensable" to the principal activities.

More from Justice Thomas:
Integrity Staffing did not employ its workers to undergo security screenings, but to retrieve products from warehouse shelves and package those products for shipment to Amazon customers . . . . [A]n activity is not integral and indispensable to an employee’s principal activities unless it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform those activities. The screenings were not an intrinsic element of retrieving products from warehouse shelves or packaging them for shipment. And Integrity Staffing could have eliminated the screenings altogether without impairing the employees’ ability to complete their work.
Thus, the security screenings were not compensable under the FLSA.

Justice Sotomayor (joined by Justice Kagan) wrote a separate concurring opinion while also concurring with Justice Thomas's opinion.


Tuesday, December 9, 2014

Unemployment Compensation Disqualification for Stealing... Trash?

Another oldie but goodie that I dug up while preparing a lesson plan for my employment law class. Today's topic is unemployment compensation. So, of course, we'll cover the concept of "willful misconduct" and the idea that a violation of an employer's policy may lead to ineligibility for unemployment compensation.

What if an employee steals a floppy disk (remember those?) drive from a computer at work? Easy analysis - no UC benefits for you. What if he takes the drive from a computer that has already been thrown away and is on a trash truck? Yup, there's case law on that:
Employer's written policy made it specifically clear that an employee was not to remove any property from the premises without authorization, including “scrap or refuse.”
Gibson v. Unemployment Comp. Bd. of Review, 760 A.2d 492, 495 (Pa. Commw. Ct. 2000). "One purpose for the policy is to prevent employees from placing property in a dumpster in order to remove it later for personal gain."

The Court affirmed the UCBR's decision denying the man unemployment compensation benefits because he had engaged in "willful misconduct." I guess one man's trash is another man's willful misconduct... or something like that.



Thursday, December 4, 2014

SCOTUS Hears Arguments on Pregnancy Accommodation

The Pregnancy Discrimination Act amended title VII to prohibit workplace discrimination against pregnant employees. But does it require employees to reasonably accommodate pregnant employees? Not exactly. But it does provide that:
[W]omen affected by pregnancy . . . shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.
42 U.S.C.A. § 2000e(k).

Yesterday, the Supreme Court heard oral arguments (transcript) in Young v. UPS (SCOTUSblog case page). At the time that gave rise to the lawsuit, UPS did not provide a light duty accommodation to its pregnant employees. However, it did provide light duty for employees who (1) were injured on the job; (2) have a disability under the ADA; and (3) drivers who lost their DOT certifications. The employee argues that UPS was therefore not treating the pregnant women equally.

We'll find out whether the Supreme Court buys that argument in the first half of 2015.