Auto-deduction cases involve a potential class of employees who allege that they were not paid for time worked because their employer automatically deducted time for meal breaks.  The employees claim that, for various reasons, they were not able to take their breaks and, therefore, are owed for the time that was deducted from their hours worked.  These claims have been on the rise in the past few years but, recently, have seen rougher times as more and more courts have refused to certify the class.

A recent decision from the District of Massachusetts is another case to add to that list.  In Raposo v. Garelick Farms, LLC, a group of truck drivers sought back pay for time worked during meal breaks that were automatically deducted from their pay.  The court denied the plaintiff-employees’ motion for class certification, though, concluding that the employees had failed to meet their burden of proof.

The court’s analysis was simple but solid, looking to two issues.  First, did the employees show that everyone in the class had worked through their breaks and, if so, did they do so for the same reason?  Second, could the employees’ damages be calculated on a class-wide basis?  The court answered both questions in the negative.

Being beautiful ain’t all it’s cracked up to be.  Or so it seems from the legal-news headlines.

First, there are the “Borgata Babes.”  The female cocktail servers at Borgata Hotel and Casino in Atlantic City, known as Borgata Babes, challenged the legality of their employer’s policy prohibiting them from gaining more than 7% of their body weight after they were hired.  The Babes lost the lawsuit, though, when a New Jersey judge granted Borgata’s motion for summary judgment.

The cocktail servers alleged that the hotel created a culture of humiliation and harassment with its dress

The University of Delaware announced that confidential employee data was compromised, reports the News Journal. And the breach is a sizeable one-the University estimates that the names, addresses, and social security numbers for more than 72,000 current and former employees may have been stolen. As reported by the News Journal, the university “is working to notify everyone who had their information compromised” and the school will pay for credit-monitoring services.police line tape_3

An employee in the IT Department apparently discovered a possible breach on July 22. At that time, though, the university was not sure about whether a breach had occurred and, if so, the scope of the problem. But a forensic investigation confirmed that the data had been compromised.

Like many other states, Delaware has a computer-breach law that governs how an entity must respond when it suspects that a breach of personal information has occurred. “Personal information” includes, among other things, social security numbers, so the breach at UD triggers the law’s requirements. The university seems to have complied with these requirements by promptly conducting an investigation and then, when the investigation indicated that a breach had occurred, notifying the victims of the breach.

Anthony Weiner is in the headlines again. Last week, he told reporters that, since he left Congress in 2011, he’s sent salacious messages to numerous women, according to the NY Daily News. This latest revelation has caused quite the stir but Weiner says that he’ll stay in the race for Mayor of New York City.

The dialogue about whether Weiner should withdraw from the race is an interesting one. The conversation seems to focus on the nature of his “mistakes” and whether or not the public should care about the sexual endeavors of elected officials. Some say that private matters and personal affairs should not serve as qualifications for public office. But I think this argument mostly misses the point.

When making a hiring decision, good employers know that what matters is the candidate’s ability to perform the essential functions of the job. For example, an applicant’s race, religion, gender, disability, etc., should play no part in the decision because none of those characteristics have any relationship to the duties. If it doesn’t indicate the ability to perform the job, it shouldn’t matter.

In preparing for an upcoming social-media seminar, I was reviewing my always-expanding research file of cases that address social media in employment law.  It’s a challenge to keep up with all of the new case law as it is decided so it’s a rarity that I re-read opinions.  But, when I do, I almost always stumble across a jewel or two that I didn’t notice in the first (or second) reading. 

One such case is Spanierman v. Hughes, which was one of the earliest cases involving what I now call a “Facebook firing.”  The case, decided in 2008, was decided pre-Facebook, though, so the social-media site in question was MySpace. 

The case was an important one for public-sector employers, upholding the decision to terminate a teacher who posted unprofessional content on his MySpace page and used his account to communicate even less professional and sometimes inappropriate messages with his students.  The teacher brought his suit under the First Amendment, arguing that the content and messages constituted protected free speech.

Privacy law is a hot topic these days.  In both the public and private sectors, employees’ privacy rights are governed by whether or not the employee had a reasonable expectation of privacy.  In the private sector, this is a common-law tort for the invasion of privacy.  In the public sector, it becomes a constitutional question under the Fourth Amendment. twitter bird_thumb

An interesting case from the District of Nevada earlier this month demonstrates the Fourth Amendment analysis in the context of social media. In Rosario v. Clark County School District, a student brought a Fourth Amendment claim after he was disciplined because of tweets (i.e., posts to Twitter), he had made that were critical of the school and its faculty.[1] The student argued that he had a reasonable expectation of privacy in his tweets because a limited audience (his followers) viewed or read his tweets.

The court rejected this argument, explaining:

“I Regretted the Minute I Pressed Share: A Qualitative Study of Regrets on Facebook” is the title of a survey by researchers at Carnegie Mellon University that has me totally captivated.  The survey seeks to answer some very common questions about social-media use, including what posts do users most regret and, in my opinion, the real million-dollar question, why do users make regrettable posts? Here is a summary of some of the survey’s most interesting findings.oops_thumb

The 3 Most Regretted Types of Posts

I think we could all guess what these are, right?  Think about it-what types of posts make you cringe when you see them?

Employers’ access to employees’ and applicants’ Facebook accounts is legally limited in 12 states.  The restrictions, though, vary widely.  Most of these laws were, at least according to their proponents, intended to prohibit employers from requesting or requiring an employee’s or applicant’s password or account information for the purpose of gaining access to the account as a sort of back-door background check.  Unfortunately, many of the laws go (or potentially go) far beyond that simple limitation. 

I’ve been opposed to these bills since they first hit the legislative radar and continue to think they are unnecessary.  For one, they attempt to fix a problem that does not exist-employers are not asking for applicants’ Facebook passwords.  The handful of reported incidents across the country should not prompt a flurry of legislative initiatives.

And, second, the law already prohibits such conduct.  As I’ve previously written, I believe that, at least arguably, the Stored Communications Act (SCA), which is a part of the federal wiretap statute, would prohibit employers from gaining access to an account in this way. 

Today’s post is more of a rant than anything close to a legal analysis.  Yesterday, Mark Hansen of the ABA Journal reported about a sentence issued by a judge in Halifax County, N.C.

The defendant, a 21-year-old female, Tonie Marie King, pleaded guilty to being drunk and disorderly and resisting arrest.  Police were called to the scene in response to a call alleging that King hold stolen beer from a convenience store.  When police arrived, King put up a fight and kicked the arresting officer.image_3

Judge Brenda Branch sentenced King to 45 days in jail but suspended the sentence in lieu of a one-year supervised probation, during which she may not possess or drink alcohol and-now here’s the kicker-she must write a two-page essay on “How a Lady Should Behave In Public.”

Delaware began issuing marriage licenses to gay couples on July 1, 2013, less than a week after the U.S. Supreme Court’s decision striking down the Defense of Marriage Act (DOMA). Delaware will no longer perform civil unions pursuant to the Civil Union Equality Act, which was passed into law in 2010. Couples who entered into a civil union prior to July 1 may convert their civil union into a legally recognized marriage or wait until July 1, 2014, when all remaining civil unions will be automatically converted.

The Court’s DOMA ruling is expected to affect an estimated 1,138 federal benefits, rights, and privileges. For Delaware employers, the impact is potentially significant. Delaware employers must now extend all federal benefits to gay married couples that were previously made available to straight married couples. The impact also is immediate. Unlike with new legislation, there will be no delay between the Court’s ruling and an employer’s obligation to extend benefits.

Although the Supreme Court’s decision will impact who is eligible for benefits, the procedures remain unchanged. For example, the process for requesting and reviewing FMLA leave, COBRA coverage, and other federally mandated benefits of employment will not change.

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