Surveillance in the Workplace

Q.  Can employers prevent employees from recording conversations in the workplace.

A.  Sometimes.

As technology continues to advance, so does the likelihood that everything you say and do is being recorded, even in the workplace. With most employees having access to smartphones and other similar devices, there has been an increase in the number of employees engaging in surreptitious surveillance as a means of trying to document alleged wrongdoing and to assert and prove legal claims.  These recordings are being used more frequently in discrimination litigation.  Employees who secretly record workplace conversations often regret it, because the recordings usually depict an employer attempting to be reasonable, and it makes the employee look sneaky and manipulative. However, employers often want to prevent these recordings from happening in the first place. Whether an employer can prevent employees from recording conversations in the workplace depends on federal and state wiretapping laws, and the interests the employer is attempting to protect in relation to employee rights.

Federal law permits the recording of conversations as long as one of the parties to the conversation consents. This means that, so long as the person doing the actual recording consents to the recording, such a recording is permissible.  However, whether more than one-party consent is required varies from state to state.  While most states only require one-party consent, 12 states, including Pennsylvania, require two-party consent.

Pennsylvania

Pennsylvania is a two-party consent state, meaning that it is illegal to intercept or record a conversation unless all parties to the conversation consent. Under Pennsylvania law, it is a felony to record a private conversation without obtaining the appropriate consent.  Thus, if an employee secretly records a private workplace conversation with his or her coworkers or employer, the employee may be subject to a civil lawsuit and criminal charges.

New Jersey

By contrast, in New Jersey, only one-party consent is required to record an in-person or telephone conversation. Thus, it is legal to record a workplace conversation as long as you are a party to the conversation.  However, if an employee records a conversation that he or she is not a part of (for example, if the conversation occurs between a coworker and a supervisor), the employee must obtain consent from at least one of the parties to avoid civil and/or criminal penalties.

“No-Recording” Policies

Employers who wish to prevent their employees from recording workplace conversations should distribute a “no-recording” policy. However, such policies must be drafted carefully to avoid running afoul of the National Labor Relations Act.  For example, no-recording policies that completely ban employees from recording any workplace activities are likely to be considered unlawful.  Employees, even in an non-union environment, are permitted (at least in one-party states) to record conversations or events regarding the terms and conditions of their employment. Such conduct could be considered to be lawful “concerted activity.”

On the other hand, employers are permitted to place properly-tailored limits on an employee’s ability to record workplace activities without violating Section 7 rights. Including a disclaimer in the policy that informs employees that the policy is not intended to interfere with their Section 7 rights is an effective way to reiterate the types of recordings that the employer is not barring.  Employers also should make sure that they are able to identify and articulate legitimate business reasons for prohibiting employees from recording during certain times and in certain places, such as protecting confidential or proprietary information.  Also, if an employer’s state law prohibits nonconsensual surreptitious recordings, it is recommended that the employer refer to the state law in their recording policy.

In addition, employers should be careful to follow these best practices:

  • When meeting with employees, employers should refrain from saying anything that they would not want recorded and make sure to comply with company policies and procedures.
  • Employers should always conduct themselves in a professional and fair manner, as if they were being recorded.
  • In situations where employers are aware that they are being recorded, they should make it clear whether they object or consent to the recording,
  • Consistently enforce the no-recording policy among both employees, supervisors and visitors.
  • Employers should not record discussions with their employers; however if an employer chooses to record a workplace conversation, he or she should inform all parties in advance, even in a single consent state.
  • If an employer feels that he or she is being recorded, the employer should ask the employee(s). Employers do not have to participate in a conversation that is being recorded and can refuse to have a discussion with anyone who insists on recording.
  • Before terminating, disciplining or pursuing criminal or civil charges against an employee for recording in the workplace, seek the advice of counsel.

Renee C. Manson

 

 

 

Paying Employees During Short Rest Breaks

Q: Do I need to pay non-exempt employees when they go on short rest breaks of 20 minutes or less?

A: Yes.

The United States Department of Labor (“DOL”) has long taken the position that when employers offer non-exempt employees short breaks of under 20 minutes, the time spent on that break is “compensable” under the federal Fair Labor Standards Act (“FLSA”).

Recently, the United States Court of Appeals for the Third Circuit (which has jurisdiction over employers in Pennsylvania, New Jersey and Delaware) adopted the DOL’s position in a case brought by the DOL against American Future Systems, d/b/a Progressive Business Publications (“Progressive”). The Court concluded that the FLSA “does require employers to compensate employees for all rest breaks of twenty minutes or less.”

The facts of the case are as follows: Progressive’s sales representatives are hourly, non-exempt employees. In 2009, Progressive eliminated paid breaks but implemented a policy called “flexible time,” allowing employees to log-off their computers at any time. However, Progressive only paid employees if they were logged off their computer for less than 90 seconds. If an employee took more than 90 seconds to go to the bathroom, get a cup of coffee, or decompress from a particularly tough sales call, Progressive did not pay the employee.

The FLSA requires that employees are paid for all hours “worked,” but does not define the term “work.” Referring to the FLSA as “humanitarian and remedial legislation” which is to be liberally interpreted, the Third Circuit concluded that the brief periods spent by Progressive’s sales representatives when they logged off the computer clearly were compensable breaks under the FLSA. As the Court reasoned,  “[Progressive’s policy] forces employees to choose between such basic necessities as going to the bathroom or getting paid unless the employee can sprint from computer to bathroom, relieve him or herself while there, and then sprint back to his or her computer in less than ninety seconds. If the employee can somehow manage to do that, he or she will be paid for the intervening period. If the employee requires more than ninety seconds to get to the bathroom and back, the employee will not be paid for the period logged off of, and away from, the employee’s computer.” The Court concluded that this result is contrary to the FLSA and that Progressive’s “flexible time” policy was merely an attempt to circumvent the FLSA’s rules regarding compensable time.

Not all breaks are compensable under the FLSA. For example, the DOL takes the position that bona fide uninterrupted meal periods of 30 minutes or more are non-compensable.

The lesson from this case? Employers should review their policies and practices to ensure that employees are compensated for all types of breaks that are 20 minutes or less. This is true even if an employee violates the company’s break policy. The employee may be disciplined for violating the break policy, but he/she still must be paid.  The good news is that paying for short rest breaks will improve employee morale and avoid liability under the FLSA.

Lee E. Tankle

Regulating Speech at Work

Q: Can a private employer limit its employees’ speech and political activity in the workplace?

A: Yes, but not speech that is considered part of a “concerted activity.”

Last year, former San Francisco 49ers player Colin Kaepernick, kneeled during the national anthem to bring attention to racial injustice. On Saturday September 23, 2017, in a series of tweets, President Trump demonstrated his displeasure with NFL players who do not stand during the national anthem and called for their termination.  In response to President Trump’s comments, NFL players across the country have been “taking a knee,” locking arms or staying in the locker room during the national anthem.  These demonstrations have generated a lot of discussion about whether a private employer can limit an employee’s speech and political activity in the workplace.

Although the right to freedom of speech is fundamental, it is not absolute. The First Amendment prohibits the government from interfering with an individual’s freedom of speech and religion; however it does not protect private-sector employees.  There is a common misconception that freedom of speech applies to anything and everything an individual has to say, but the First Amendment protections only apply in cases of government interference.

Private-sector employees are typically employed at-will, meaning that their employers can fire them at any time for any reason, with or without cause. There are many exceptions to the employment at-will doctrine, but the First Amendment is not one of them.  As a result, as a general matter, a private sector employer may discipline or even terminate an at-will employee for statements made both inside and outside of the workplace, including statements made on social media posts, blog posts, political opinions, t-shirts, and bumper stickers.  But the employer’s right has limits.  Under federal labor laws, an employer cannot discipline or fire an employee for speech that involves “concerted activities,” such as discussing the terms and conditions of employment, wearing a union shirt, discussing wages, and/or forming a union.

Even though the First Amendment does not apply to private workplaces, employers should be careful when regulating speech. Although an employer may have a right to regulate employee speech on political or social issues, doing so may have a detrimental effect on the workplace.  And, there are times when employers have a duty to regulate employee speech.  For example, employers have a responsibility to maintain a work environment that does not violate laws prohibiting discrimination and harassment, or create a hostile environment.  Employers often have to investigate and act in response to speech in the workplace, and even outside the workplace, that creates or contributes to a hostile work environment from the standpoint of race, sex and other protected characteristics.

Employers should consult a labor and employment attorney if they have any questions about what speech is appropriate to regulate, and for assistance in establishing policies and procedures that govern speech in the workplace.

Renee Manson

Paying Employees during a Shutdown due to Natural Disasters and Inclement Weather

Q: Do I need to pay my employees if my company has closed or temporarily shut down operations due to a natural disaster or inclement weather?

A: It depends.

In the aftermath of Hurricanes Harvey and Irma, and in anticipation of the upcoming winter snow season, many employers are questioning whether they need to pay employees when their company cannot open due to a natural disaster or inclement weather.

Whether an employee needs to be paid will typically turn on whether the employee is exempt or nonexempt under the Fair Labor Standards Act (FLSA). Under federal law, nonexempt employees only are entitled to payment for “hours worked.” Therefore, if a business is forced to shut down for a period of time due to a hurricane, blizzard, or other challenge imposed by Mother Nature, there is no obligation under federal law for an employer to pay nonexempt employees. This makes sense because, quite simply, if a non-exempt employee does not work, there is no requirement to pay them. Employers do have the option of permitting non-exempt employees to use vacation or other paid time off during periods of inclement weather.

Companies generally will be required to pay salaried nonexempt employees in the event of a natural disaster unless the employer’s operations are shut down for more than one workweek. Under the FLSA, salaried exempt employees are entitled to receive their full salary for any workweek in which they perform any work (regardless of the number of days or hours worked). As such, if an employer closes its facilities due to natural disaster for less than a full workweek, an exempt employee must still be paid his or her full salary for the workweek. An employer only is entitled to withhold payment of wages to salaried exempt employees if the employer is closed for an entire workweek and the salaried exempt employee performs no work during that workweek. Should an employer decide to close its facility for more than one workweek, an employer can permit an exempt employee to take vacation/paid time off or allow the employee to work remotely.

Paying employees when a business is closed due to weather concerns is not always legally required but doing so will certainly improve employee morale—especially in instances of a life-altering hurricanes like Harvey and Irma where employees have suffered the loss of a home or personal property. If questions arise regarding payment of employees during natural disasters, consult a labor and employment law attorney.

Lee E. Tankle

Physical Exams as a Condition of Employment: Are They Permissible?

Q.  My Company would like to have all applicants for employment submit to a pre-employment physical examination to ensure that they are fit for the position. Is this allowable?

A.  Employers may require an applicant to submit to a pre-employment physical examination, but only after a conditional offer of employment has been made, and even then only under the following conditions:

  • All other candidates in the job category must also be required to submit to the physical;
  • The candidate’s medical history is kept separate from other employment-related records and is treated confidentially; and
  • The results are not used to discriminate against the applicant under the Americans with Disabilities Act (“ADA”) or other discrimination laws.

To ensure that there is no ADA violation, the physical examination should be limited to an assessment of whether the applicant is able to perform the duties of the position, with or without an accommodation. To avoid a claim under the Genetic Information Nondiscrimination Act (“GINA”), the physician should not request information about the applicant’s family medical history.

It would be helpful to provide the physician with a copy of the job description prior to the examination so that the physician is familiar with the responsibilities expected of the position.

Employers will want to tread carefully in making an adverse employment decision based on the results of a physical exam. The applicant’s offer may not be rescinded unless the issue is job-related and consistent with business necessity, or creates a direct threat to health and safety of the applicant or others, and the condition cannot be reasonably accommodated.  Moreover, the company could violate discrimination laws if it rescinds an offer based on non-medical information learned as a result of the physical (for example, the applicant’s age, religion, etc.)  Likewise, employers could land in hot water if they rescind an offer after learning about an employee’s pregnant condition as the result of the exam.

–Tracey E. Diamond