The number of FLSA lawsuits filed each year continues to rise.  See The Wage & Hour Litigation Epidemic Continues, at Seyfarth Shaw’s Wage & Hour Litigation Blog.  Often, the lawsuits follow certain trends, targeting a particular industry, job type, or claim.  One such trend, which I’ve written about previously, is meal-break claims.  In these suits, the plaintiffs allege that their pay was automatically deducted for meal breaks that they never received.logo_from_dev

Although this has been a popular claim, it’s not been a very successful one.  And a recent case from the Eastern District of New York gives employers real reason to believe that meal-break claims are all but dead upon arrival.

In DeSilva v. North Shore-Long Island Jewish Health System, Inc., the court decertified a collective action of 1,196 plaintiffs who had alleged that they were subject to automatic deduction of meal breaks that they didn’t receive.  In its opinion, the court makes clear that such claims will have a difficult time proceeding as a collective action:

During the 2007-2008 school year, Ms. Kimble was employed as a cook and cheerleading coach at a high school.  In December 2007, she took the cheerleaders on an overnight Christmas party held in a cabin located outside the county.  The trip was not approved as was required by district policy.  When administration learned about the trip, Ms. Kimble was instructed that all future out-of-county trips must have prior approval.

The following year, Ms. Kimble worked as a cook at an elementary school and as the cheerleading coach at the same high school at which she had coached the prior year.  In December 2008, Ms. Kimble took the cheerleaders to the same cabin for another overnight Christmas party.  Ms. Kimble and a parent went as “chaperones” but Ms. Kimble did not seek or obtain approval for the trip.

During the party, Ms. Kimble was photographed in the hot tub, surrounded by several female cheerleaders.  Although Ms. Kimble was clothed, most of the girls were topless.  All of the girls were minors. 

Employers should hire nice people.  That’s according to Adam Grant, author of Give and Take, anyway.  Grant writes that there are three types of employees: Takers, Matchers, and Givers.  And he advocates that employers should focus their hiring efforts on the last type-Givers are good, in other words. logo_from_dev

Takers, as you may have guessed, are people who put their own interests first.  Workplace bullies fall into this category, of course.  Matchers believe in quid pro quo-something for something.  Most employees fall into this category.  Then there are Givers.  Givers do nice things for others with no expectation of reciprocity, writes Seth Stevenson at Slate.com.

The problem with Givers, though, is that they can be too nice.  More often than not, they are so selfless, they spend too much time helping others and, as a result, are overlooked for promotions and other opportunities.

The plaintiff is a Michigan lawyer.  She was placed on the assignment list of the County Probate Court and, as a result, received several case assignments.  She made a comment on Facebook about what she believed to be inefficiency at the Clerk’s Office at the Court in a particular case she was handling. She tagged two people in the post, mistakenly identifying them as employees at the Clerk’s Office. how_to_permanently_delete_or_deactivate_facebook_account_thumb

One of the two employees brought the post to the attention of the Court administrator.  The administrator never saw the actual post.  Two days later, the Court administrator notified the plaintiff by letter that she had been removed from the assignment list because of her comment on Facebook.

The plaintiff attempted to get back on the list multiple times but was unsuccessful and filed suit.  The suit alleges several constitutional claims, all but one of which were dismissed by the court.  The claim that survived is a claim for unlawful retaliation in violation of the First Amendment-i.e., a free-speech claim.

“Risks and Rewards of a BYOD Workplace” was the subject of one of my presentations at our annual employment-law seminar last week.  [FN1]  More and more employers are adopting BYOD policies.  BYOD, which stands for “Bring Your Own Device,” eliminates the need for employers to give employees a smartphone or tablet for work-related purposes.  Instead, the employee brings his or her own device and uses it for both work and personal purposes.

text alert_3The State of Delaware was an early adopter in the BYOD arena.

Although BYOD policies are popular, they are not risk free.  One (of the many) dangers of employee use of mobile technology is the potential for distracted driving.  Regardless of who owns the device, employers may face liability for an employee who harms a third party due to the employee’s negligent use of a smartphone while driving.

Criminal histories and credit scores will soon be an off-limit topic for job applications in Delaware’s public sector.  HB 167 passed the Delaware Senate on May 1, 2014, and is expected to be signed into law by Gov. Markell soon. criminal_background

As we previously reported, the bill would prohibit public employers and contractors with State agencies from:

inquiring into or considering the criminal record, criminal history, or credit history or score of an applicant before it makes a conditional offer to the applicant.

It’s easy to underestimate the power of words. Many supervisors fail to appreciate the importance of the words used in a performance review or evaluation, corrective action, termination letter, or other employment-related document. But it can go beyond the obvious instances.

In an age-discrimination case, a supervisor had attended a presentation by a contractor who was trying to bid work with the employer. The supervisor wrote in his notes that the type of work would be perfect for “young engineers.” What the supervisor meant was that the work being bid was well suited for entry-level engineers, who could gain valuable experience that, often, was quite difficult to find.

You may imagine that the plaintiff’s lawyer jumped on the word “young” from the supervisor’s notes, using it as an opportunity to make it look like the supervisor preferred young engineers over older ones. An age-based preference such as this would, of course, be unlawful if used in decisions to hire, fire, or assign work. As you also may imagine, it made for an unpleasant deposition of the supervisor–an experience he surely did not forget any time soon.

Employment legislation has been a popular topic for the Delaware General Assembly in recent months. Here are two recently proposed legislation that Delaware employers should keep an eye on.

Employment Protection for the Disabled

The General Assembly has proposed a very simple change to the Delaware Persons with Disabilities Employment Protections Act (DPDEPA), which would change the definition of “employer.” More specifically, they have proposed decreasing the threshold for coverage from 15 employees (the same as the Americans with Disabilities Act) to 4 employees (the same as the Delaware Discrimination in Employment Act).

To establish a claim of defamation, the plaintiff must establish that: (1) the defendants made a statement concerning the plaintiff to a third party; (2) that the statement could damage the plaintiff’s reputation in the community; (3) that the defendant was at fault in making the statement; and (4) that the statement either cause the plaintiff economic loss or is actionable without proof of economic loss. twitter bird singing (2)_3

There are several possible defenses to a claim of defamation.  Two of the most common are that: (1) the allegedly defamatory statement is true; and (2) that the statement was one of opinion, as opposed to fact.  Thus, if you make a negative statement about someone that is true, there can be no liability for defamation.  Similarly, if you merely comment about your opinion, as opposed to purporting to make a factual statement, there has been no defamation.

Defamation by Twitter is no different.  Comments that are merely expressions of opinion, whether made in person, in the local newspaper’s letter to the editor, or on Twitter, cannot form the basis for a claim of defamation.  A federal court in Massachusetts recently explained this idea in Feld v. Conway.

The Heartbleed Internet-security flaw has compromised the security of an unknown number of web servers.  This is just one story in a string of recent headlines involving the vulnerability of the Internet sites.  But consumers aren’t the only ones affected.  The companies whose websites have been attacked are employers, after all.computer help button_3

Although data security has become increasingly impossible to ensure, it has also become increasingly critical to employers’ viability.  So employers are looking for ways to mitigate the exponentially increasing risks associated with the Internet.

One option being considered by some employers is blocking employees from their personal, web-based email accounts from the company’s servers.  Companies can install powerful (albeit not impenetrable) spamware that can catch and prevent many Internet-based security threats.  But that spamware works only on emails that come through the Company’s email servers.  Email that is opened through a web-based account, such as GMail or Hotmail is not subject to the company’s protective measures.

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