Thursday, March 27, 2014

Week in Review

This week’s news included advice to employers on tackling mobile device issues in the workplace while, on other fronts, Division I football players tackled labor laws. On Wednesday, the Chicago regional office of the National Labor Relations Board ruled that Northwestern University football players are employees under federal labor law and, therefore, can unionize. Northwestern University has announced plans to appeal, and we’ll be monitoring this legal development and its implications closely. Meanwhile, employers continue to struggle with employees using mobile devices to check and respond to work emails after hours and the potential wage and hour issues this may create. Finally, we provide a link below to an article on best practices for employers with BYOD (aka bring your own device) technology policies.

Technology and the Workplace
Labor board: Northwestern University football players can unionize (CNN) (Connecticut Employment Law Blog)
"Wireless Ball and Chain" FLSA Working Time Cases Are Here To Stay! (Wage & Hour - Development & Highlights)
BYOD tips for employers (BlandsLaw Blog)
Lack of social media archiving creates legal minefield (ComputerWeekly)
Plaintiff-employee destroys Facebook posts about her case; court destroys her (Employer Handbook)

Technology and the Law
Twitter challenges Turkey ban, Erdogan holds fast (Reuters)
China demands answers from US over spying claims (
IRS answers bitcoin tax questions, says virtual currency is property, not money (ABA Journal)
ACLU wins settlement for sixth-grader's Facebook posting (StarTribune)
Does Fourth Amendment protect computer data? (ABA Journal)

There's an App for That
6 Apps That Make It Simple to Split Expenses With Friends (Wired)
Web Fiction, Serialized and Social (NY Times)
Optimize Your Social Presence With These App-on-App Strategies (Mashable)
Enlisting a Computer to Battle Cancers, One by One (NY Times)
NYT Bringing Paid Subscription to New Mobile App (Wireless Week)

Tuesday, March 25, 2014

The Time-and-a-Halfs They Are A ‘Changin’

Earlier this month, President Obama directed the U.S. Department of Labor to update the federal overtime pay regulations by revising the salary component of the executive, administrative, and professional exemptions.  To qualify for these overtime pay exemptions (a.k.a. the “white collar” exemptions), employees must receive a minimum, guaranteed weekly salary of at least $455 and satisfy a “duties” test that requires them to primarily perform exempt-level tasks. The President’s directive was aimed only at the salary component of the “white collar” exemptions. The currently minimum of $455 a week equates to about $24,000 a year, which is below the poverty line for an employee supporting a family of four. The President’s directive would raise this minimum salary threshold, making fewer employees eligible for the “white-collar” exemptions and triggering the need for employers to either raise salaries to keep employees exempt, pay overtime pay to more employees, or limit overtime hours to avoid incurring extra overtime pay costs.

Since the President’s directive, reporters and bloggers have been working overtime discussing what the upcoming regulatory change will mean for the modern workplace. Little of this chatter has, however, focused on the “white collar” exemption duties tests even though this is a more complicated web for employers to untangle. Whatever the dollar amount of the new salary test, it will be objective and straightforward. In other words, an employee will either make the required salary to be exempt or not. The tests for determining exempt duties are far more complicated and nuanced, and employers still need to carefully analyze the job duties of potentially exempt employees to ensure they can be properly classified as exempt.

For example, federal law provides that an exempt “administrative” employee must perform non-manual or office work directly related to the management or business operations of the company and must exercise discretion and independent judgment on significant matters. “Executive” employees must generally manage one or more departments, direct the work of at least two other full-time employees, and have the power to hire and fire employees. In turn, “professional” employees must meet the requirements of either a creative professional, learned professional, or teaching professional. To determine if these various tests are met, an employer must consult detailed federal wage and hour regulations that elaborate on test components, such as what it means to manage or direct employees, to work on a company’s management or business operations, or to have discretion and independence on significant matters. 

At the end of the day, the jobs duties test is like a swirling tie-dye shirt when compared to the black and white salary test. And, if an employer gets it wrong, the stakes are high.  Employers who violate federal wage and hour laws can be held liable for two to three years of back pay, double damages, potential fines, and criminal prosecution. In addition, when an employee makes a wage and hour mistake, the mistake often involves more than one employee in the job category. Multiple violations affecting multiple employees can pack a heavy punch.

So, even though the proposed changes to the salary test may take a year or more to finalize, employers should start preparing now and should remember that – whatever salary test is eventually adopted – a careful audit of employees’ job duties is still required.

Friday, March 21, 2014

Week in Review

Overtime pay is a big theme this week following President Obama’s directive that the U.S. Department of Labor work to update the existing federal regulations on overtime pay. The most prominent change that is expected is an increase in the $455 minimum weekly salary that must be paid for an employee to be exempt from overtime pay requirements under federal wage and hour law.  Before any overtime pay change can be finalized, the Department of Labor must complete a rule making process that could take a year or longer.  Speaking of overtime, March Madness has begun once again.  Check out the links below to articles about how the tournament may impact your workplace and the links to the best apps for following the “madness.”

Technology and the Workplace
Working (More Than) 9-to-5: President Obama Seeks to Expand Overtime Pay Protections Under the Fair Labor Standards Act (Employment Matters)
Does  March Madness = Workplace Madness? (Employment Matters) (Employer Law Report)
5 Employment Law Considerations in "The Cloud" (Technology Company Counselor)
Watch Those Tweets: The EEOC Looks at Social Media (WSJ At Work)
Background Check Documentation (Printed and Online) Under Renewed Scrutiny (Connecticut Employment Law Blog)

Technology and the Law
Report says California targeted by cyber-gangs (
Big Data - Do You Have a Right to Know Your Data? (Internet, IT & e-Discovery Blog)
A 10-Point Plan to Keep the NSA Out of Our Data (Wired)
Another government agency is eyeing your telephone data. And it's not the NSA (Washington Post)
U.S. Pulls Out Of ICANN - What Does That Spell For Internet Users? (NPR)

There's an App for That
5 March Madness Apps: Yeah Baby! (InformationWeek)
Can an app help you ditch your reading glasses? (CBS)
Apps aid fashionistas in tracking down desired clothing, shoes (Reuters)
Can You Trust 'Secure' Messaging Apps? (NY Times Bits)
Microsoft to unveil Office for iPad Next Week, report says (LA Times)

Tuesday, March 18, 2014

Are You Ready For Next Week's New Affirmative Action Requirements?

Across the country, federal government contractors are preparing to meet next week’s deadline for starting to comply with new affirmative action rules.  Last fall, the Office of Federal Contract Compliance Programs (OFCCP) announced new affirmative action rules related to individuals with disabilities and protected veterans.  Those new rules become effective next week on Monday, March 24, 2014.  Some of the new requirements imposed by the rules have a March 24th compliance deadline.  Others can wait until a contractor currently in the middle of its affirmative action plan implements the following year’s plan.

The new federal affirmative action rules related to protected veterans apply to most federal contractors and covered subcontractors with a contract of at least $100,000 in value, with additional requirements for contractors with 50 or more employees.  In turn, the new rules related to individuals with disabilities apply to federal contractors and covered subcontractors with a contract of at least $10,000 in value, with additional requirements for contractors with 50 or more employees and a contract of at least $50,000 in value.

The new rules impose a number of changes related to affirmative action plans for individuals with disabilities protected by Section 503 of the Rehabilitation Act of 1973 and veterans protected by the Vietnam Era Veterans’ Readjustment Act of 1974 (“VEVRAA”).  Some of the more significant changes include:

  • Updating affirmative action plan language, plan notices, subcontract language, job advertisements, and employment policies to comply with the new rules.
  • Establishing a process for applicants to self-identify as a protected veteran or individual with a disability at various stages of the hiring process.
  • Incorporating hiring and employment goals for protected veterans and  individuals with disabilities into affirmative action plans.
  • Detailed recordkeeping requirements related to the recruitment and hiring of protected veterans and individuals with disabilities.
  • A disability accommodation process that differs from obligations imposed by the federal Americans with Disabilities Act.

Whether or not you are required to comply with the new rules can be confusing. In addition, meeting the new requirements can be daunting and time consuming.  Feel free to contact us if you have questions or need compliance help.  We have developed a customizable compliance plan to help bring contractors into compliance with the new requirements.

Friday, March 14, 2014

Week in Review

Week after week, the blogosphere is full of discussions about new developments in the law involving social media. This week, the Equal Employment Opportunity Commission joined the conversation by holding a public meeting to discuss the interplay between social media and employment discrimination. The meeting provided helpful tips to employers, such as how to minimize the risk of a discrimination charge when conducting social media background checks. And, while we're on the topic, you can click on the link below to see if your social media policy is keeping up with all of the recent developments. Of course, all of these social media developments would not be possible without the World Wide Web, which turned 25 this week.  So, don't forget to tweet a happy birthday wish!

Technology and the Workplace
What the EEOC wants companies to know about social media and employment discrimination (Employer Handbook)
The 10 best practices for drafting a lawful social media policy (Inside Counsel)
How to Hunt for a Job Using Social Media (Mashable)
5 Social Media Tips To Protect Your Future From Your Online Past (Forbes)
Are You Prepared For E-Discovery of Data on Your Employees' Personal Devices? (LegalTXTS)
Happy Birthday: World Wide Web to Turn 25 (NBC)

Technology and the Law
Google Encrypts Search, Aims To Foil China, NSA (Forbes)
Feinstein: CIA searched Intelligence Committee computers (Washington Post)
Sanctions Imposed for Manipulation of Metadata to Conceal Use of Unproduced Computer (Electronic Discovery Law)
FINRA Issues Investor Alert Concerning Bitcoin Trading and Speculation (New Media & Technology Law Blog)
Anonymous Internet Comments . . . Not So Anonymous (Lawffice Space)

There's an App for That
Forget a Birthday? Not if the Phone Can Help It (NY Times)
A Snap-On iPhone Gadget That Adds Physical Camera Controls (Wired)
Travel Smarter With Tech (Forbes)
New Rooster app crows about good books, young and old (WSJ)
Starbucks adds tipping to new iPhone app (LA Times)

Thursday, March 13, 2014

Campus SaVE Act Keeping You Up at Night?

If you work in HR or Student Services for a college or university, you’re likely well aware of the Campus SaVE Act and the fact that it has added a long list of items to your to do list. When the law was first passed a year ago, its March 2014 effective date seemed so far away. Time sure flies! Not only is the Act going into effect, the U.S. Department of Education recently issued draft regulations on the law. The regulations won’t be final for some time, but they will provide additional guidance to institutions on complying with the Act.
The Campus SaVE Act amends existing law to promote campus safety and security. Under the Clery Act, higher education institutions that receive Title IV federal funds must provide timely notice to the campus community of crimes and issue an annual security report disclosing crime statistics. The Campus SaVE Act extends these requirements to crimes of domestic violence, dating violence, and stalking.
In addition, the Campus SaVE Act requires institutions to have education and awareness programs that include training of all faculty, staff, and students on sexual misconduct, including sexual assault, domestic violence, dating violence, and stalking. As we’ve talked with higher education institution contacts about the Campus SaVE Act, we’ve heard that the law’s training requirements pose some practical challenges. Among other things, institutions must provide and track training for large numbers of employees and students. In addition, this training must include nontraditional students with staggered start dates and remote students or employees who aren’t often on campus. Another challenge involves meeting the SaVE Act’s requirements that employees and students be trained on local legal definitions of sexual, domestic and dating violence, and stalking offenses. Under the SaVE Act, institutions with multiple locations or remote employees and students must  ensure that these individuals are appropriately trained on the legal crime definitions applicable in their locations.
Recognizing these challenges, GPM has launched a new training tool, trainED™, that provides legally compliant, engaging training modules that can be viewed online and customized to cover all local crime definitions. We hope you’ll forgive our shameless plug, but we’re pretty excited and think the trainED™ training modules are a great solution for institutions to consider as they determine how to comply with the new SaVE Act training requirements. If you’re interested in more information or otherwise have questions about your obligations under the Campus SaVE Act, we’d be happy to talk with you and to help you return to more restful nights.

Friday, March 7, 2014

Week in Review

Some things should be kept private. This week, the blogosphere provided several anecdotal reminders of this principle for both employers and employees. As we noted in an earlier post, one former employee learned the hard way not to violate a settlement confidentiality provision when his settlement unraveled as a result of a Facebook post. You can also read on below to learn more about the potential future of employee privacy law. Also, check out the link below about when and how employers can access an employee's social media account used for business purposes. Finally, we have provided a link below as an additional reminder that daylight savings starts on Sunday. Read below about how this “spring forward” may affect employee pay.

Technology and the Workplace
Former Employee Forfeits Portion of Settlement Payment After Daughter Discloses Settlement on Facebook (Employment Matters) (Employer Handbook)
Privacy is Going to be a Major Employee Concern for the Future (Blogging 4 Jobs)
Accessing Your Employee's Social Media Accounts May Violate Federal Law (Employer Handbook)
Daylight $avings $tart$ $unday. $pring Forward and Pay Employee$ Correctly (Employer Law Report)
Has social media created too much workplace transparency? (Ohio Employer's Law Blog)
The Problem With Corporate Webmail (Forbes)

Technology and the Law
Congress Considers Mandated Use of Chips & PINs to Fix Data Breaches (Internet, IT, & e-Discovery Blog)
Stalking, Texts, and Excited Utterances (CYB3RCRIM3)
Texas appeals court says police can't search your phone after you're jailed (ars technica)
Sprint worker uploaded intimate photos from my trade-in phone to my Facebook page, woman's suit says (ABA Journal)
Big Data Means Big Questions on How That Information Is Used (NY Times Bits Blog)

There's an App for That
Want to read quicker? There's an app for that (Guardian)
Amazon's killer new app for books (Market Watch)
Mixcloud: A Streaming Service for Mixtape Lovers (NY Times Bits Blog)
Organization Help for Turning Phone Photos Into Albums (NY Times)
New App Helps Drivers Arrive On Time, Find Parking Too (Tech Crunch)

Tuesday, March 4, 2014

Loose Lips Sink Former Employee’s Ship

Confidentiality clauses are a standard provision in most agreements settling an employment dispute. Last week, a former preparatory school administrator learned the hard way that these provisions matter to employers and that violating a confidentiality clause can be costly.

An appeals court in Florida ruled last week that a Facebook post made by the former school administrator’s daughter violated the confidentiality clause in his settlement agreement with his old employer. As a result, the former administrator forfeited $80,000 of his settlement. 

The former administrator had filed an age discrimination complaint against the school that used to employ him, and he had confidentially settled that claim. After the settlement, however, the former employee’s daughter swiftly posted on Facebook that her parents had won the case, that the school was “now officially paying for [her] vacation to Europe this summer,” and that the school could “SUCK IT.” The post went to the daughter’s 1200 Facebook friends, including many past and present students of the school where her father had worked. In response to the post, the school declined to pay the former school administrator his settlement money, and the administrator sued in an effort to enforce the settlement. 

The court sided with the school. In ruling that the settlement was unenforceable due to the confidentiality breach, the court noted that the confidentiality provision prohibited the former school administrator from “directly or indirectly” disclosing the settlement. The court noted that the administrator admittedly told his daughter about the settlement and the daughter then “did precisely what the confidentiality agreement was designed to prevent, advertising . . . that [the former employee] had been successful in his age discrimination and retaliation case against the school.”

This case is a reminder that confidentiality clauses matter greatly to employers and that news conveyed electronically travels fast, far, and wide. Confidentiality matters to employers, because reputations matter. In addition, employers are often concerned that publicity may trigger other potential claims or create an expectation of future settlements. Employers can take heart, however,  that courts take settlement confidentiality obligations seriously and will enforce them.