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"Extreme" French Proposed E-Mail Law: Already Law in U.S.


A bill is being considered in France that would potentially restrict severely use of e-mail by employees off the clock.  http://www.nytimes.com/2014/04/12/world/europe/in-france-a-move-to-limit-off-the-clock-work-emails.html.

I have read many business leaders respond with dismay.  How much can French government regulate and expect business to survive, let alone thrive?

Lots come back across the pond.  That “controversial,” “extreme” and “off the wall” French proposal: well, it is already US law!

Under the Fair Labor Standards Act, non-exempt employees must be paid for all time worked.  Work-related e-mails are work!

U.S, employers face exposure here primarily in two areas:

  1. Mobile devices, such as i-phones
  2. Remote access to the employer's network server

Of course, the safest legal answer:

  1. No mobile devices for non-exempt employees
  2. Block access by non-exempt employees to the employer's network

This may avoid legal risk.  But it also may be business blind,

Employers need to consider when there are compelling circumstances for e-mail use by non-exempt employees outside of regular working hours and then:

  1. Create parameters for limited use
  2. Monitor employees to make sure they use mobile devices or access the network only within such parameters
  3. Establish protocol for employees to record time worked
  4. Pay for all time recorded as worked
  5. Pay also if management has actual or constructive knowledge of off the clock e-mail work

And more.....

So what was your reaction to French proposal, again?

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

Hi Dawn/Hi Shirley: Maddening Racism on #MadMen


Hi Dawn/Hi Shirley: Maddening  Racism on #MadMen

  

In the first episode of Mad Men, we witnessed Peggy and Joan experience not so subtle sexism in response to their efforts to maintain and grow the business. http://blogs.duanemorrisinstitute.com/jsegal/entry/mad_men_beginning_of_the.

In the second episode, the palpable “ism” was racism.

Two African American secretaries, Dawn and Shirley, play pivotal roles in this episode. Of course, they were not referred to as African American at the time.

Each greets the other by calling her by her own name (“Hi Dawn”/”Hi Shirley”).  The unexplained but clear message: their bosses confuse them even though they look no more alike than Don and Roger do.

Poking fun at their bosses soon turns to being bullied by and discriminated against by them. Let’s start with Shirley.

Shirley receives flowers from her fiancee.  Peggy thinks they are from Ted and takes them for herself.  When Shirley confronts Peggy with the truth, Peggy lashes out at Shirley and tell her  to “grow up.”

Peggy’s behavior was horrific.  Alone in her own office, Peggy seems appropriately disappointed in herself.

Would this have happened if Shirley were white? Perhaps. Would it have played out the same way? Perhaps not.

Dawn works for Lou.  Lou expresses his dismay at Dawn for inconveniencing him when she is shopping for a gift for his wife.

Dawn confronts Lou.  Lou’s response: move her to the reception desk.

Bert sees Dawn at the receptionist desk.  Worried about race-based “customer-preference,” Bert effectively tells Joan to move Dawn and replace her with a white receptionist.

No codes here.  Blatant racism.

Amidst these Title VII breaches, two good things happens.  Jim recognizes Joan’s business acumen and contributions and offers her an office upstairs so she can focus on her accounts. But, as a partner, should not she have been there already?

When Joan moves, Dawn moves into her office.  It seems that Dawn is the new Joan and the office and promotion delight her.

All this occurs without Don at the office. He remains on paid leave. However, he remains somewhat connected to the office, we learn earlier in the episode, as Dawn delivers papers from work to him.

 For Don, the seminal scene is when his daughter Sally tells him she needs a note for missing school. When Don asks Sally what the  note should say, Sally responds “Just tell the truth.”

After telling his partners and children the truth last season about his background, Don Draper returns to his pattern of concealing the truth.   Before this episode, neither Megan (absent from the episode and his daily life) nor Sally knew that he is not working. Now, Sally knows.

Perhaps Don could be truthful about his past because it was just that.  But to acknowledge the present is too painful so he doesn’t.

Reality has a way of catching up with Dick Whitman.  The question is only how.

 

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

 

 

 
 
 
 

#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

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.

 

 
 
 
 

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:

http://www.weknownext.com/blog/leadership-and-aretha-franklin

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:  

http://www.weknownext.com/blog/leadership-and-gender-bias

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: http://www.weknownext.com/blog/leadership-paradox-human-connections-versus-the-law

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):

http://www.weknownext.com/blog/leadership-influence

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.

http://management.fortune.cnn.com/2014/01/07/bullying-work-ban/ #bullying

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

Thanks

Follow me on Twitter at: @Jonathan__HR__Law

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, PERTAINING TO A SPECIFIC FACTUAL SITUATION OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.

 
 
 
 

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.

http://duanemorris.com/alerts/IRS_publishes_post_windsor_guidance_5091.html

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. 

12/1/2013
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:

http://weknownext.com/blog/the-holiday-tale-by-the-jewish-guy-who-wears-a-chai-2013

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:

http://www.weknownext.com/blog/work-life-imbalance

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

 
 
 
 
 

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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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.