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Mad Men: Beginning of the End

Last night was, according to @DonDraper_NY, the “beginning of the end.”  And, what a beginning it was.

Don remains on paid leave.  He visits Megan in California and then returns home to NY.

In his absence from the workplace, much of the focus was on Peggy and Joan.  Both worked incredibly hard on client retention and satisfaction but each was marginalized in ways that too many women still are today.

Joan fought hard to rescue a small but important account, Butler Footware. But instead of being thanked by the account executive, Ken Cosgrove, he told her only to stay out of his office.

It was not just what he said. It was how he did it.

Joan had left an earring in his office when trying, on the phone, to save the client.  When he threw the earring at her, the boys’ club message could not have been clearer.

When Peggy tried to improve a pitch for Accutron, her ideas were dismissed by her new boss, Lou Avery.  Rather than focusing on her content, he said:  “I’m immune to your charms.”  Hard to imagine him saying that to a man!

At the end of the episode, Peggy was so frustrated with work, and perhaps, life, that she broke down emotionally at home.

Don broke down emotionally at the end, too.  But he did not emote.  Instead, only partially clothed, he sat on the balcony of his NY apartment in the frigid cold.

How different their reactions.  But equally intense I suspect were there inner feelings.

It is only a matter of time before Don returns to work.  With his growing and painful self-awareness (“She [Megan] knows I am a terrible husband”), I don’t think we can anticipate a seamless return. 

And Peggy, who broke through the glass ceiling initially at Sterling Cooper,  is both smart and strong.  Those who underestimate her do so at their peril.

Cannot wait until next Sunday!

Follow me on Twitter at:  Jonathan__HR__Law




Leadership and Aretha Franklin

I am pleased to post the fourth and final in a series of four blogs I am wrote on leadership for SHRM's We Know Next:

This blog should not be construed as legal advice, pertaining to specific factual situations or establishing an attorney-client relationship.


Leadership and Gender Bias

I am pleased to post the third in a series of four blogs I am writing on leadership for SHRM's We Know Next: This blog focuses on leadership and gender bias--from below:

This blog should not be construed as legal advice, pertaining to specific factual situations or establishing an attorney-client relationship


Wage and Hour Snow Storms

Now is a good time for a quick reminder of the wage and hour rules on snow storms and employee compensation.

Let's start with the FLSA:

1. As a result of the FLSA’s salary basis requirement, if as a result of a snow storm you close for less than a full work week, you must pay an exempt employee for full or partial days that you are closed.  However, you generally can require that an exempt employee use PTO during a day in which you close.  Note: if sick days cannot be used for personal reasons, then an employer most probably cannot require that an employee use sick days in these circumstances.

2. If you remain open and an exempt employee does not come to work, you do not have to pay the employee for the day; this can be treated as an absence for personal reasons, provided it is a full day.  If an exempt employee arrives late or leaves early, he or she must be paid for the full day, but you generally can require that he or she use PTO, if available, to cover the non-working time.  Same caution about sick days. You also must pay him or her if he or she works from home.  

3 No legal obligation under the FLSA to pay non-exempt employees who do not work because you close due to the snow; however, there is an important exception for non-exempt employees who are paid under the fluctuating work week.

Even if there is no duty to pay non-exempt employees, consider the employee relations message of paying exempt but not paying non-exempt employees for a day on which you are closed. 

Also, if non-exempt employee works at home, you must pay for all time worked.  Systems must be put in place to state who can work remotely and how they must record their time so that they are properly paid.  Remember, break rules apply to working at home too.

Keep in mind state law may impose additional requirements or restrictions. For example only, in New Jersey, there are call-in requirements; that is, if an employee comes to work and is sent home, there is a minimum number of hours' pay the employee must receive.

Keep in mind also that there may be payment obligations under collective bargaining agreements and/or your policies.

Be safe.

This blog should not be construed as legal advice, as pertaining to specific factual situations or as creating an attorney-client relationship

Jonathan A. Segal is a partner at Duane Morris LLP and a member of the firm's Employment Services Group. He is a routine contributor to SHRM, Fortune, and other legal, business and HR publications. 






Leadership Paradox: Human Connections Versus the Law

I am pleased to post the second in a series of blogs I am writing on leadership for SHRM's We Know Next:

This blog should not be construed as legal advice, pertaining to specific factual situations or establishing an attorney-client relationship.


What the Supreme Court's Decision on Donning and Doffing DOES NOT MEAN!

Case: Sandifer v. United States Steel Corporation

Background:  As a general rule, the FLSA requires employers to pay their employees for time spent changing into required protective clothing/gear at work.

Statutory Exception: Section 203(o) of the FLSA provides that time spent changing clothes or washing at the beginning or end of each workday may be excluded from compensable time if it is treated as non-work time by a collective bargaining agreement.

Key issue in the case: does protective gear constitute clothing subject to the statutory exception?

Monday's Supreme Court decision: In construing section 203(o), the Court came up with its own definition of clothes, finding protective gear falling within it:   "Dictionaries from the era of §203(o)'s enactment indicate that 'clothes' denotes items that are both designed and  used to cover the body and are commonly regarded as articles of dress."

Limitation of decision: opinion interprets FLSA provision that applies only to union employees under collective bargaining agreement. Further, many  state laws do not include a  provision comparable to the exclusion under the FLSA so the potential benefit of the decision will not even be available to all unionized employers.

So, be careful of headlines that suggest a broader reach than the decision itself.

A more detailed alert to follow


This short alert does not constitute legal advice, is not applicable to factual situations and does not establish attorney-client relationship. 


Leadership = Influence

I am pleased to share with  my latest blog from SHRM's We Know Next (my first blog on leadership):

This blog does not constitute legal advice, create an attorney-client relationship or apply to specific factual situations.


Bullying at work: Hard to define, even harder to ban

I am pleased to post my most recent blog on bullying for CNN's Fortune. #bullying

Of course, we can help you prevent and correct this problem, please let us know.


Follow me on Twitter at: @Jonathan__HR__Law



DMi - Change is Coming.

It is with great pleasure and excitement that I welcome you into the New Year on behalf of the Duane Morris Institute. This year is our 5th anniversary, and we’re excited to announce that we are beginning 2014 with a strengthened commitment to empowering your leadership.

In the coming months, you’ll notice a new, modern aesthetic rolling out across our organization. You’ve come to expect current, valuable, and relevant education from DMi, and we’re updating our look to reflect that. But, beyond the modern appearance, the new look reflects the deeper changes we’re making as an organization.

We’re updating our website to function in a more user-friendly manner, with easier navigation and course registration. The technology that powers our online webinars has been improved and updated to make the entire experience even more valuable for those participating. You’ll also notice a refreshed presence for DMi across social media, with new Facebook, Twitter, and LinkedIn accounts dedicated to keeping you in the know.

That leads us to the other major aspect of evolution: our mission and vision as an organization. As the result of an internal discovery process, we have defined DMi’s true value and position in the industry, helping us focus on our message and value proposition to the public:

Education that empowers your leadership.

Looking at this season’s new course line-up, you’ll see our mission reflected in education with a keen focus on leadership. From training managers on the benefits and risks of social media in the workplace, to discussing the most common mistakes made when firing an employee, our faculty has lined up a stellar course catalog that is full of timely and relevant topics.

Even more exciting, we’ve expanded our offerings to include additional leadership training and Lean-In Dialogue events, based on the success of last year’s. Stay tuned for updates on those as the year progresses.

We look forward to having you in class and hope that together we can help you accomplish your professional goals for 2014.

For a look at our updated brand and a preview of the new course catalog, please visit our new landing page Winter Courses.


Same Sex Spousal Benefits

You have an employee who work in Texas, one of the 32 states that does not recognize same sex marriage.  The employee  resides in New Mexico, one of 18 states that recognizes same sex marriage.  The employee was married to a person of the same sex in California.

For purposes of determining the employee’s spouse’s eligibility for benefits, do we look at:

  1. State of celebration—where the marriage occurred
  2. State of employment—where the employee works
  3. State of residence—where the employee lives

The answer is 1: state of celebration. Regardless of whether the state in which the employee works or resides recognizes same sex marriage, the employee generally is eligible for spousal benefits under ERISA.  Why?  Please read alert below for legal analysis.

This blog should not be construed as legal advice, as establishing an attorney-client relationship or applying to specific factual situations.



Give Me a Break

I am pleased to share with you my latest article written for SHRM's HR Magazine.

Legal Trends 
Give Me a Break 
Vol. 58 No. 12 
Know the rules for different kinds of work breaks. 

By Jonathan A. Segal

There’s no taking a breather from the requirements of the Fair Labor Standards Act (FLSA). Some of its most arcane requirements pertain, in fact, to breaks. Got all of those rules memorized? What about your managers—do they remember the rules? Probably not, if it’s been more than a year since your last FLSA training. No, it’s not required, but it’s the best way to reduce your potential (and realized) liabilities. So get out a pen and paper—it’s time for a refresher on the FLSA.

Rest and Meal Breaks

As a general rule, the FLSA does not require that employees (other than minors) receive any breaks, whether paid or unpaid. Rather, the FLSA’s regulations outline only when breaks must be paid if they are offered at an employer’s sole discretion.

The one exception to the general rule is that, as part of the Patient Protection and Affordable Care Act, employers now, under the FLSA, must provide nonexempt mothers with the time and space to express breast milk for one year after the birth of a child. Few employers limit this right to nonexempt employees only, and many states have laws that go further than the federal law.

Aside from lactation breaks, the regulations divide breaks into two categories: rest breaks and meal breaks. In terms of payment, different rules apply depending on the type of break.

For rest breaks, the regulations stipulate that an employer must pay workers if the period is 20 minutes or less. According to the regulations, breaks lasting five to 20 minutes are common and promote efficiency.

For meal breaks, the regulations stipulate that, ordinarily, an employer must pay workers if the break is less than 30 minutes. The regulations leave open the possibility that shorter meal periods may be noncompensable in special circumstances.

With meal breaks, the burden is on the employer to prove that special circumstances apply justifying the shorter break.

Keep in mind also that the regulations do not always fit today’s workplace reality. Sometimes it is hard to tell whether a break is to rest or to consume a meal.

For this reason, it is not surprising that some U.S. Department of Labor (DOL) investigators, as a matter of enforcement, have taken the position that an employer must pay workers for all breaks that are less than 30 minutes. That way, they don’t have to engage in a break-by-break analysis.

In such cases, the DOL’s position is inconsistent with its own regulations and case law. But a 30-minute rule does avoid litigation of that issue.

Even if a meal break is 30 minutes, that does not mean that it automatically occurs without pay. The employer must consider not only the length of the break but also whether the employee is free from work.

If the employer requires the employee to stay in his or her work area, it may have to pay the employee, even if the break is 30 minutes or more. Similarly, if the employer asks an employee to do any work during the break, it may have to pay for the entire break.

It is against this backdrop that this article discusses five common mistakes. Sadly, the risks are greatest when employers are flexible and employees earnest.

The Man in a Hurry

Suppose an employee gets a 30-minute unpaid lunch break. He asks if he can take 15 minutes instead on a regular basis so that he can be home as soon as possible after his kids return from school. Do you have to pay the employee for the 15-minute meal period even though you are accommodating his request for a shorter break?

Ordinarily, lunch breaks must be 30 minutes or more to be unpaid. This is not one of those exceptions that would qualify as a special circumstance. The presumption is against the employer and an issue for litigation.

Sad but true: Accommodate employees by giving them a short lunch break without paying them and you most probably run afoul of the FLSA.

An alternative way to accommodate the employee and not set yourself up for FLSA liability is to allow the employee to waive his lunch break entirely (so no extra pay). Like many people, he can eat something quickly while walking or working. That assumes you are not in a state where breaks are mandated and cannot be waived.

The Desk Diner

A different scenario: An employee takes her 30-minute meal break at her desk because she likes to be alone and read. It is her "quiet time." However, if the phone rings, she will answer it. And if her boss is out of town, she will check her boss’s e-mail occasionally over lunch to make sure there are no emergencies. Is her lunch compensable?

There is always a risk that employees will be tempted to work if you allow them to remain at their desks or in their general work areas. While the federal DOL allows a de minimis exception, what is de minimis is determined in the aggregate (looking at day after day). Plus, not every state recognizes the de minimis exception.

Accordingly, if you are going to allow employees to remain at their desks or work areas during lunch, make explicit in writing that they cannot do any work of any kind during their lunch break. To take away the temptation to work, consider instructing them to turn the computer off and forward their phone calls to voice mail or to co-workers when they eat at their desks. This feels awkward but is less onerous than defending a collective action.

If employees do any work during their lunch, you may have to pay them for the entire lunch break (since they did not get 30 minutes of uninterrupted time)—not because you were flouting the law but because you were flexible and they were earnest.

Consider a timekeeping attestation at the end of the day that asks employees whether they did any work during their unpaid meal break. If they say yes, pay them but monitor them. If they say no but later claim they did, you have a strong defense, provided that management did not have actual or constructive knowledge of any alleged work done during the meal break. Supervisory training on this issue is critical.

Overeager Workers

Your employees get 30-minute lunch breaks. They are working on a major project for an important client, so many return to work before the 30 minutes are up. Most return between 25 and 30 minutes after logging out for lunch. Of course, they get paid as soon as they log back in to work.

The fact that the employees are eager to return to work most likely is not a special circumstance. The irony is that your best and more diligent employees may be your problem here.

Three possible solutions are available—none of which is particularly appealing but all of which are more desirable than a collective action.

Have the timekeeping system prohibit logins before the 30 minutes have expired and make sure no work is done until the minutes are up.

Have a supervisor monitor when employees return from lunch to prevent early returns.

Monitor, pay and discipline those who return early.

State, Federal Law Conflicts

Some state laws require an unpaid 20-minute rest break every day. Say the employer provides its employees with a 20-minute break in accordance with state law. How do you respond to the federal DOL when it tells you that the rest period must be paid according to the FLSA?

For example, under West Virginia law, employers must provide an unpaid 20-minute break during a workday of six hours or more. Under West Virginia law, bona fide breaks are not work time.

But even if breaks are unpaid under state law, they may be compensable under federal law. If you are required to provide a 20-minute unpaid rest break under state law, increase it to 21 minutes so you can argue that it should be unpaid under federal law, too.

The safest approach is to pay for all breaks that are less than 30 minutes. While that may mean a longer day for your employees, it will result in less time for you fighting in court.

Sneaky Smokers

Last example: An employer prohibits smoke breaks other than during lunch. A few employees sneak smoke breaks that average three minutes before and after lunch. When the employer discovers this, it tells the employees that it won’t pay for their smoke breaks and that they must clock in and out for smoke breaks; otherwise, they will be fired. Is this a lawful alternative to discharge?

There is no duty to provide smoke breaks. You can discipline employees for taking them, up to and including discharge.

What you cannot do is provide short smoke breaks that are unpaid. Smoking without permission is a rule violation that must be dealt with through performance management, not through compensation reduction.

What if the employee asks for the break as an accommodation because, after all, smoking is addictive?

Sorry, no dice. We don’t have to give Jack Daniels breaks when employees depend on alcohol, and we don’t have to give smoke breaks to those who depend on nicotine. That may be the only break the law gives us.

Jonathan A. Segal is a contributing editor of HR Magazine and a partner at Duane Morris LLP in Philadelphia. Follow him on Twitter @Jonathan_HR_law.


The Holiday Tale By The Jewish Guy Who Wears a Chai - 2013

I am pleased to share with you my latest blog from SHRM's We Know Next:

This blog does not constitute legal advice, create an attorney-client relationship or apply to specific factual situations.


Work Life Imbalance

I am pleased to share with you my latest blog from SHRM's We Know Next:

This blog does not constitute legal advice, create an attorney-client relationship or apply to specific factual situations.


Forget the Fockers: Meet the Stored Communications Act

By way of legal background, the Electronic Communications Privacy Act (“ECPA”), enacted in 1986, is comprised of two statutes:  the Wiretap Act and the Stored Communications Act.  Historically, most litigation arising under the ECPA has involved the Wiretap Act, that is, where there are “interceptions” of wire, audio or aural communications (for example, listening to an employee’s phone call).

However, with the social media revolution, the Stored Communications Act (“SCA”) now is coming into play.  Generally speaking, in the employment context, the SCA makes it unlawful for an employer to have unauthorized access to an employee’s private social media sites.

More than a dozen states now prohibit employers from asking applicants or employees for their passwords to their private social media sites.  However, the SCA, which applies to employers in all 50 states and which comes with civil and criminal penalties, may go even further.

Ehling v Monmouth Ocean Hospital Service (D.N.J. 2013) is one of the first cases to focus on the application of the SCA to Facebook.  The facts of the case can be summarized succinctly.  The plaintiff-employee had a Facebook account.  The plaintiff friended a coworker.  The coworker, on his own initiative, provided management with copies of postings made by the plaintiff.

The plaintiff argued that the employer violated the Stored Communications Act.  The court held that the SCA applied.  However, the court also held that an exception to the general prohibition under the SCA on accessing stored communications also applied.

As the court noted, very few courts have addressed whether the SCA applies to Facebook wall posts.  There is no legislative history with regard to the intended application of the SCA to social media for a simple reason:  the SCA was enacted before the advent of social media.

However, the legislative history does provide some guidance.  As the court noted:  “The legislative history of the [SCA] suggests that Congress wanted to protect electronic communications that are configured to be private.”

The SCA  provides that whoever “intentionally accesses without authorization a facility through which an electronic communication service is provided . . . shall be liable for damages” under the SCA.  The SCA also provides for damages where an individual exceeds the authorization provided to him or her to access a facility.

For the SCA to apply, four (4) requirements must exist:  (1) there is an electronic communication; (2) that was transmitted by an electronic communication service; (3) the communication is in electronic storage; and (4) it is not public.  The court noted that Facebook wall posts that are configured to be private meet all four (4) criteria.

More specifically, the court held:  (1) Facebook wall posts are electronic communications; (2) Facebook wall posts are transmitted by an electronic communication service; (3) Facebook wall posts are in electronic storage; and (4) Facebook wall posts that are configured to be private are, by definition, not accessible to the general public.

After concluding that accessing an employee’s Facebook page is covered by the SCA, the court then dealt with whether there was an exception that would make the employer’s conduct in this case lawful.  The court focused on the exception which provides that the SCA “does not apply with respect to conduct authorized . . . by a user of that service with respect to a communication of or intended for that user.”

The authorized user exception applies where:  (1) access to the communication was authorized; (2) by a user of that service; and (3) with respect to a communication intended for that user.  The court goes on to define access as not being authorized if the authorization was coerced or provided under pressure.

In this case, the court concluded that all three (3) requirements were met.  The first requirement, however, is the one which is most significant for employers; that is, whether the employer’s access to the employee’s Facebook wall posts was authorized.  In other words, did the co-worker who was friended by the plaintiff provide the information to management without any coercion or pressure?

In this case, the co-worker testified that he voluntarily provided the information to management.  Management also testified that it received the information without soliciting it in any way.  Under these circumstances, it was an easy call for the court to find that the access was authorized.

However, not all cases are quite so simple.  Sometimes employees will tell management about an offensive posting, for example, racial, ethnic or religious harassment, but not provide a copy of the posting itself.  In these circumstances, what is management to do?

There are a continuum of options available to an employer, each with corresponding risk.  The seriousness of the legal risk associated with the alleged postings may inform, in part, the level of risk the employer is willing to take under the SCA.

The most direct response would be:  “Please provide me with a copy of the posting about which you speak.”  No matter how politely that is stated, because of the inherent power differential, a court could find that a mere request is coercive.

Slightly less direct:  “It would be helpful for you to provide us with a copy of the posting to which you referred.  Please understand that there will be no adverse action taken against you, regardless of whether you decide to provide us with a copy of the posting.”

Even more gentle:  We thank you for the information but cannot investigate or take corrective action without seeing it.

Which option, or variation of  it, makes most sense turns at least in part, as noted above, on what is at issue.  Consider the following examples.

On the one hand, if the posting includes stupid, but not illegal material, then there is no reason to take any risk under the SCA.  On the other hand, if the posting could expose the employer to legal liability, for example, the allegation being that the employee has posted racist rants, PHI under HIPAA, or inside information under the SEC, then the employer must balance its risks under statutes regarding the preceding against the risk under the SCA.

When all is said and done, there are a few things that are clear:

One:  An employer should never ask an applicant or employee for his or her private password.  This is true in all states, even if there is no specific state law.

Two:  Where an employee voluntarily provides an employer with a posting, the employer should document the voluntariness with which it was provided.  That is, the employer should document that it did not request the posting, but rather an individual provided it to the employer on his or her own initiative.

Three:  Where an employee raises a concern about a posting, but does not provide a copy of the posting itself, if legal issues are potentially implicated, the employer should formulate a request for the posting to maximize the likelihood that the employee will share the posting and also minimize the risk that a court find will find there to have been threats or pressure.

No doubt that any request by an employer exposes the employer to some risk.  But not requesting the posting also may expose the employer to some risk.  It is risk management, not risk avoidance.



Leading the Disengaged

Leading the Disengaged

The Great Recession appears to have taken more than just jobs out of the economy. It has taken the spirit out of many workers


In June of 2013, a very disturbing poll was released by  Workers were divided into 3 categories: engaged, disengaged and actively disengaged.


According to the poll, 70-percent of American workers are “disengaged.”  A full 20-percent describe themselves as “actively disengaged.” Only 30-percent reported feeling “engaged.”


One could read this otherwise: only a 30% approval rating for leadership. While you cannot make everyone happy--indeed you should not try-- a 30% approval rating is dangerously low.


The non-engaged may leave you.  Employees are beginning to take the “at-will” right very seriously and job hop when they are not happy.


The actively non-engaged may sabotage you. Sadly, some of my clients have experienced this. 


Of course, employees also may sue you. People sue people, even if the name of the defendant is an organization  


If you want your organization to be productive, your employees cannot be a cabal of  zombies injured and disillusioned by the recent economic contractions. You need them to have passion and commitment.


Gallup’s conclusion:  leaders are responsible for the lack of engagement.  The report states:  “Organizations should coach managers to take an active role in building engagement plans with their employees, hold managers accountable, track their progress and ensure they continually focus on emotionally engaging their employees.”


But how can we as leaders achieve this goal?  How do we inspire emotional connection when many employees feel exploited by the new normal?


There was a song in the 70s by Spiral Staircase that included the lyrics “I love you more today than yesterday, but not as much as tomorrow. “ The theme song for the corporate world today could be:  “I expect more of you today than yesterday but not as much as tomorrow.”


Pulling back in terms of our demands is not an option.  The competition, domestic and foreign, has never been more fierce.


So we can’t retreat. We must continue to move forward  but we need more employees to go forward with us as engaged participants.


How do we turn disengaged, often hurt, employees into engaged participants?  How do we make some progress with the actively non-engaged, too?


On October 14, 2013, Lead with Giants will have a tweet cast in which we hopefully can share our experiences and ideas with each other so that we can lead engaged employees who in turn will help keep us engaged.



Follow me on Twitter at: Jonathan__HR__Law




















Jonathan Segal

Business Ally. Help clients achieve business goals and manage legal risks. Areas of focus include: gender equality; wage and hour compliance; social media; leadership training; union avoidance; performance management; and agreements

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© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.
The opinions expressed on this blog are those of the author and are not to be construed as legal advice.