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SCOTUS Rules on FLSA Question


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Whose Email is it Anyway?



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HR & the Law in the News
January 2015, Volume 14, Issue 1
Hello again and welcome to the latest edition of FiveL Company's monthly e-newsletter, bringing you some of the latest news related to employment policies, practices and programs. Check out the upcoming events including FREE access to last month's BONUS webcast "Employment Law Update 2014: The Year in Review Part II" - for a limited time only! Click here for more info including 2015 discounted, annual subscriptions now available
SCOTUS Rules on Definition of Time Worked Under FLSA

On December 9th the Supreme Court of the United States (SCOTUS) unanimously ruled that time spent by hourly workers in security screenings after the end of their shift was not time worked and thus not required to be paid under the Fair Labor Standards Act (FLSA).  


The employees' position was that the time should have been compensable because the screenings were required by the employer, took up to 25 minutes between waiting and actual screening time, could have been conducted in a manner that would have taken less time (staggered shifts) and was for the sole benefit of the employer and its customers.   


The employees in question were warehouse workers. Their primary duties included retrieving products from warehouse shelves and packaging them for delivery.  The employer implemented post-shift security screenings to help prevent and detect theft of company property.  


So the question for the court was whether the security screenings were "integral and indispensable to the employees' principal activities." 


Under the Portal-to-Portal Pay Act, preliminary and postliminary activities are not considered time worked and thus need not be paid.   For example, the Act exempts from compensable time the time spent "walking, riding or traveling to and from the actual place of performance of the principal activity." Most employers are familiar with this concept as it relates to driving or traveling to and from work each day (although join this month's webcast for the spins and twists of travel time!). 


The court applied the same rationale here.  The workers could perform their principal activities of retrieving products from warehouse shelves and packaging them with or without being screened.  The latter was not indispensable to the performance of the employees' principal activity.  


Implications? (1) Remember you can always go above and beyond what the law requires.  Just because such time does not have to be paid does not mean you could not choose to provide some compensation for the time spent; perhaps minimum wage. (2) Consult with legal counsel as the interpretation of what is/not "integral and indispensable" is tricky - what about walking from the time clock to the workbench?  Or time spent changing into or out of a uniform? (3) Want more practical examples and detail of the court's analysis?  Join this month's webcast, "Wage & Hour Woes: Part II" as we review these issues and more!  Discounted annual subscriptions available.

Upcoming Events
This Month's Webcast!
January 28, 2015 10:00 - 11:15 a.m. EST


Join this program as we continue our discussion started in the September 24th webcast (click here for the archive). This month's Part II program will focus on recent news and events related to: 

  • Pre- and Postliminary activities
  • Travel time
  • Bonuses and overtime calculations
  • Pay for time off - Holidays and Inclement Weather
  • ...and more!
To register just click here.


$49 per person. Pre-approval by HRCI and SHRM pending for 1.25 credits. 
NOW AVAILABLE! Get all 11 for the price of 8
Click here for more information.


HAPPY NEW YEAR!  FREE access to last month's webcast is still available through January 31st. Click here and enjoy!


Upcoming Events: Click here for a full listing of public and private speaking engagements, seminars and conferences.

Whose Email is it Anyway?
Like most employers, you have likely granted your employees access to your company email system for business purposes. And let's assume you have a policy that expressly states that all electronic systems, including email messages are company property and are to be used exclusively for business purposes. You even go so far as to clarify that using the electronic systems for "engaging in activities on behalf of organizations or persons with no professional or business affiliation with the company" as well as "sending uninvited email of a personal nature" are prohibited.  

Imagine one day you find one of your employees is using the company email system during his or her unpaid meal periods to send messages to coworkers about a union organizing campaign.  Can you fire or issue corrective action to the employee for violating your policy and using company property to conduct personal business?

On December 11th in a 74-page decision the National Labor Relations Board (NLRB) ruled with a presumption that the answer is "No."  The Board writes, "we adopt a presumption that employees who have been given access to the employer's email system in the course of their work are entitled to use the system to engage in statutorily protected discussions about the terms and conditions of their employment while on nonworking time, absent a showing by the employer of special circumstances that justify specific restrictions."  

How would an employer demonstrate special circumstances?  With care. The Board explains, "an assertion of special circumstances will require that the employer to articulate the interest at issue and demonstrate how that interest supports the email use restrictions it has implemented." So if your email system crashes as a result of so many employees using the system during their non-working time that might justify special circumstances.  Remember a key is also ensuring consistent application.  You may have a tough time enforcing a ban on personal use of email for discussions of wage, hours or conditions of employment if you are letting employees use the same email system for other personal activities like Superbowl and March Madness pools, buying/selling (Girl Scout) cookies, shopping, etc. 

And as always, when reviewing and updating your related policies and practices, using your company's legal counsel as a sounding board.

This newsletter does not constitute the rendering of legal advice.  You should consult your company's legal counsel for guidance on employment matters. 


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