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

California’s New Parental Leave Law Adds to the Complexities of Administering Leaves of Absence for National Employers

Q: I heard there is a new parental leave law in California.  How does it compare to other states’ laws and will it affect my business if I have employees in California?

A: Parental leave laws are one of the most complicated aspects of employment law to administer and track.  There are federal, state, and local laws at play, and there is very little uniformity across the laws and across the states.  Even within one state, there may be multiple laws applicable to parental leave, and it can be difficult to navigate the interaction and overlap between the laws.  California’s new parental leave law continues to add to this complexity.

As a starting point, it is important for employers to understand the difference between laws that provide leave entitlement and laws that provide compensation during leave. Laws that provide leave entitlement generally provide eligible employees with a certain amount of leave for qualifying reasons.  The leave is unpaid, but most laws and/or employer policies require or allow employees to use accrued paid time off for part or all of the leave.  Many states also have laws that provide compensation for time off, but do not necessarily provide a leave right.

California’s new parental leave law is an entitlement leave law.  Effective January 1, 2018, employers with 20 to 49 employees nationwide must provide up to 12 weeks of unpaid leave for baby bonding.  In essence, this expands to smaller employers the obligation to provide baby bonding leave under the California Family Rights Act (“CFRA”), which applies to employers with 50 or more employees nationwide.  To qualify for leave,  employees must have worked for the employer for at least 1,250 hours in the past 12 months, and work at a worksite where the employer employs at least 20 employees within 75 miles.

In addition to baby bonding leave (as mentioned above), the CFRA, a leave entitlement statute, provides employees up to 12 weeks off to care for an immediate family member with a serious health condition, or for the employee’s own serious health condition. A third California leave entitlement law – the California’s Pregnancy Disability Leave Law (PDL) – entitles an employee to up to 16 weeks of leave for disabilities related to pregnancy.   The PDL applies to employers with five or more employees nationwide, and there is no minimum requirement of number of hours or years worked for an employee to be eligible.

California’s leave entitlement laws work in conjunction with the state’s Paid Family Leave (“PFL”) program. California PFL is a compensation law, and provides up to six weeks of partial pay to employees who take time off from work to care for a family member with a serious health condition or to bond with a new child.  California PFL applies to all employers who employ one or more employees, and have been paid wages of $100 or more in any quarter of the previous calendar year.  There is no minimum number of hours or days worked for employees to qualify for California PFL benefits.  California PFL is only a compensation law, however, and not a leave entitlement law – thus, it does not create any rights to leave, but rather provides partial pay for leave taken under leave entitlement laws and/or employer policies.  If the leave taken under FMLA, CFRA and/or PDL is for baby bonding or to care for a family member with a serious health condition, the employee can partially fund the leave for up to six weeks through California PFL.

For employers with employees in more than one state, it is important to understand the differences between the statutes of each state, as well as the leave entitlement provided by the federal Family and Medical Leave Act (FMLA), and administer them accordingly.   New Jersey, for example, has an existing paid family leave law (PFL), which is similar to California’s law.  To be eligible for New Jersey PFL (a statute that provides compensation rights but not leave rights), an employee must have worked at least 20 calendar weeks or earned at least $7,150 during the 12 months preceding the leave.  New Jersey also has a leave entitlement law, but does not provide a leave entitlement for an employee’s own serious health condition.

As discussed in an earlier post, New York also has a new family leave law that is effective January 1, 2018.  Like California and New Jersey PFL, New York PFL provides partially paid leave for an eligible employee who is providing care for a family member with a serious health condition, and for bonding with a child.  New York PFL also covers  time off for reasons associated with a spouse, child, or parent’s active military duty.  However, unlike California and New Jersey PFL, New York PFL provides both leave entitlement and compensation entitlement.

Given the complexities around leaves, employers should ensure their Human Resources personnel are thoroughly trained, and have access to legal counsel for consultation.

Jessica Rothenberg

Is an ‘Honest Belief’ of FMLA Misuse Enough for Termination?

Q.  Can I discharge an employee if I believe that he or she is misusing FMLA?

A.  According to a recent Third Circuit opinion, an employer’s honest belief that its employee misused FMLA leave is sufficient to defeat an FMLA retaliation claim, even if the employer was mistaken.

In Capps v. Mondelez Global, LLC, 847 F.3d 144 (3rd Cir. 2017), the company granted the employee intermittent FMLA leave for flare-ups as a result of hip replacement surgery.  On February 14, 2013, Capps took intermittent leave. That evening, he went to a pub and became severely intoxicated. On his way home, Capps was arrested for driving while intoxicated and spent the night in jail. He was scheduled to work the next afternoon, but called out again. Approximately six months later, Capps pled guilty to the DWI charge and served 72 hours in jail immediately following the guilty plea hearing.

The company’s HR manager learned about Capps’s arrest and conviction when he read about it in a local newspaper. The company then learned that the date of Capps’s arrest and subsequent court dates coincided with dates when he had taken intermittent FMLA leave. The plaintiff was terminated for violating company policy and sued, claiming that the company discriminated against him by terminating his employment in retaliation for taking FMLA leave. The lower court granted summary judgment on the ground that the company acted on an honest belief that Capps had misused his FMLA leave.

On appeal, the Third Circuit affirmed. Significantly, the court concluded that the company met its burden of demonstrating a legitimate, nondiscriminatory reason for the plaintiff’s discharge — the fact that Capps was terminated for misusing FMLA leave in violation of company policy. The court concluded that it is enough if the employer provides evidence that the reason for the adverse employment action was an honest belief that the employee was misusing FMLA leave, regardless of whether that belief turned out to be true.

Although the “honest belief” defense provides support for employers to take action based on a sincere belief that an employee misused FMLA leave, employers are cautioned to be careful in invoking this defense. Before terminating an employee for misusing FMLA leave, be sure to have objective evidence of misconduct. It is likely in most cases that it will be a jury question whether the employer’s belief was, in fact, truly honest.

— Tracey E. Diamond

When is Enough, Enough? Limiting Leave as a Reasonable Accommodation under the ADA

Q: How long does an employer have to accommodate an employee’s disability in the form of a leave of absence?

A: The law in most jurisdictions is unclear. In fact, in most jurisdictions, including Pennsylvania, New Jersey, and New York, there is no bright line rule as to the length of leave time that is reasonable under the ADA.  Typically courts look at the surrounding circumstances to determine whether the amount of time off is a “reasonable accommodation” and have held that leaves longer than three months were required in some circumstances as a reasonable accommodation.

Given this lack of certainty, employers are left with the daunting task of determining how much leave is “reasonable,” thus forcing many employers to typically extend leaves beyond what they may believe is proper.  To add to the uncertainty, the EEOC, which is the employee’s first pit stop in bringing an ADA claim, has taken the position that a two-to-three month leave, or longer may be reasonable.  Moreover, state laws protecting disabled individuals, such, for example, the New Jersey Law Against Discrimination, may provide for even greater protections to the employee.

A recent Seventh Circuit Court of Appeals case, however, has provided some concrete direction, at least to employers with employees located in Illinois, Wisconsin, or Indiana, regarding the amount of leave required as a reasonable accommodation under the ADA. In that case, the Court held that a multi-month leave likely was not required as a reasonable accommodation under the Americans with Disabilities Act.

In Severson v. Heartland Woodcraft, Inc. No. 15-3754 (7th Cir. Sept. 20, 2017), the employee brought a lawsuit after the employer terminated his employment rather than give him two to three months of additional leave to recuperate from back surgery after he had used up his Family and Medical Leave Act allotment.  The Court of Appeals for the Seventh Circuit, which covers Illinois, Indiana, and Wisconsin, stated that the ADA is “not a medical leave entitlement” and specifically held that “a multi-month leave of absence is beyond the scope of a reasonable accommodation under the ADA.”  In particular, the Court held that a such a multi-month leave cannot be a reasonable accommodation because a reasonable accommodation allows a disabled employee to work and perform the essential functions of the position, which the employee in this case could not do, thus disqualifying him from the protections of the ADA.  The Court noted however, that a short leave of absence—say, a couple of days or even a couple of weeks—may, in appropriate circumstances, be a reasonable accommodation.  Although the Severson case provides support for the position that extended, multi-month leaves of absence may not be required under the ADA, employers should not take it as a green light to reject all requests for a leave of absence under the ADA.

The Severson case is binding law only in the Seventh Circuit.  It remains to be seen whether other courts will follow the Seventh Circuit’s lead in limiting the amount of leave that is considered to be “reasonable.” Until that occurs, however, employers should tread lightly when making these decisions and consider all of the risks and benefits associated with rejecting a leave request.

Kali T. Wellington-James