Do you deserve overtime pay for that email???

How many times have you answered an email after hours?  Is there such thing as “after hours”?  In today’s mobile society, the blessing and curse of smartphones and email is the level of accessibility. Employers are able to capitalize on this accessibility and reach new heights of productivity. When the amount of time an employee is inaccessible is decreased to maybe the time they are sleeping, companies experience increased productivity and near 24/7 operation.  Why not take full advantage?

Great for them not necessarily for us. Now that this level of accessibility is the norm, it is hard to set limits on when you can and cannot be reached without potentially limiting your upward mobility within the company. In this hyper competitive job market, we all know that the smallest things can make the largest difference. No one can afford to lose their competitive edge because they refused to answer an email after 6pm.

Sgt. Jeffrey Allen is suing the City of Chicago for answering his “required to use” department Blackberry when he’s off-duty.  And he’s not the first. Jason Swart and Justin Foley, officers in Yorktown Police Department’s K-9 Unit, have sued the Town of Yorktown for additional overtime incurred while caring for their police dogs.

These suits bring up an interesting conundrum that we often face because the law is always significantly behind technology.  Employment & labor laws do address this kind of issue. One email should not qualify for overtime especially if it is a brief and easy response; but at what point does responding to emails and phone calls outside of working hours violate the rights of employees? How do you quantify the number of emails that result in an hour of overtime or the depth of thought necessary when responding? Can an employee charge for every tenth of an hour used or should they wait until they’ve done at least 30 minutes of outside work?  And what will be the response of employers? Is the chance for overtime worth sacrificing a salary and likely having your base pay cut to account for potential overtime?  If you begin to nickel and dime your employer, will they adopt the same approach? How will that manifest itself? Decreased flexibility? Strict time requirements for assignments? Less incentives?

This could become a hot button issue as technology continues to penetrate the lives of employees and as employers seek to control such use both inside and outside the office.

What do you think?


Shhhhh… Pillow Talk and Work Do Not Mix

Pillow talk, nighttime tales, sheet secrets (whatever your preferred phrasing) and the sharing it promotes has long been an issue in situations requiring discretion. Especially when you move that conversation from the privacy of your home to electronic means. Luckily, when the relationship elevates to the level of marriage, communications between spouses are considered confidential and cannot be used in court as evidence, right?!?!  Maybe not. Although often a saving grace for chatty or trusting spouses there are a few exceptions and a few risks not worth taking.  Specifically, emails sent by a husband from his work email account to his wife were held not protected by marital privilege.   Be careful what you send via work email!

It is important to keep private matters separate from business operation.  We all have occasion to communicate on matters not related to work while at work. Be strategic about the communications, the information disclosed, and the medium you use to communicate this information.  Make sure you know your company’s policies on computer use, phone use, and their rights and ownership over everything you produce, use, receive, etc.  Being uninformed can land you in a lot of trouble both with your employer and otherwise.

In U.S. v. Hamilton, the government obtained a conviction against a former Virginia Delegate for federal program bribery and extortion, relying in part on emails between Mr. Hamilton and his wife.  You have no rights to privacy in work provided spaces. This means that not even privileges that usually surmount the circumstances in which the information comes are protection.

On appeal the Fourth Circuit explained: “[T]o be covered by the [marital communication] privilege, a communication between spouses must be confidential; ‘voluntary disclosure’ of a communication waives the privilege.” Basically, Hamilton waived the privilege because the emails were sent from and received in his Newport News school system work email account. Importantly, the Court relied on a computer usage policy adopted by the school system after the events in question, but prior to the government’s investigation in 2009, which provided that users would have no expectation of privacy even as to “stored” (i.e., old, archived) emails. Hamilton expressly agreed to this policy and, thereafter, took no additional steps to secure the privacy of the emails with his wife (e.g., by forwarding the e-mails to a personal account and deleting them from the work account). As a result, Hamilton waived the marital communication privilege.

The company reinforced the fact that company computers and networks are to be used for business purposes only through their policy on work email account not being private and the property of the company.  This is why its important to read and know your companies policies on all things but especially electronic information and social media because it is such a new and pervasive area of everyday life.   Moral of the story, know company policies and keep the electronic sheet secrets/pillow talk on your own, personal e-mail accounts and devices!  Or even better return to traditional means and have that conversation in the confines of your own home.



NLRB Issues First Social Media Decision – What Does this Mean?

Social Media is a new frontier in cyber law.  It is impacted by a variety of regulations such as labor laws, internet law, IP law, etc. Recently the intersection between labor law and social media has impacted corporate policy. Many companies dove head first into the social media craze when they realized the potential marketing impact. Many realizing much later that they needed to regulate use by employees and some not realizing at all. Many of the social media policies created violated employment law namely the National Labor Relations Act (“NLRA”).

Over the last year the National Labor Relation Board (“NLRB”) Acting General Counsel issued a series of memos that provided insight into its interpretation of how the NLRA applies to social media policies. This month was noteworthy as the National Labor Relations Board issued its first decision taking on an employer’s social media policy in Costco Wholesale Corp., 358 NLRB No. 106 (2012).  The ruling was pretty consistent with the recommendations for the NLRB memos which highlighted a need for specificity and examples.

Costco’s “Electronic Communications and Technology Policy” stated:

Costco recognizes the benefits associated with electronic communications for business use. All employees are responsible for communicating with appropriate business decorum whether by means of e-mail, the Internet, hard-copy in conversation, or using other technology or electronic means. Misuse or excessive personal use of Costco technology or electronic communications is a violation of Company policy for which you may be disciplined up to and including termination of employment. Your use of Costco technology and electronic communication systems represents your agreement with the following policies: . . .

  • Any communication transmitted, stored or displayed electronically must comply with the policies outlined in the Costco Employee Agreement. Employees should be aware that statements posted electronically (such as online message boards or discussion groups) that damage the Company, defame any individual or damage any person’s reputation, or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment.

The NLRB found that employees would reasonably construe the rule as prohibiting Section 7 activity. More specifically, the NLRB found the “broad” prohibitions against damage to the Company or another individual’s reputation included communications by employees that protest how the employer treated its employees.  The NLRB also found the rule requiring employees to use “appropriate business decorum” was lawful under the NLRA, which is good news for employers.

Employers following this opinion should note it affirms that context and specificity play an important role in whether a policy is considered lawful under the NLRA.  Policy’s are evaluated as a whole so employers must be aware of how each section works together. I encourage Employers to pay close attention to NLRB recommendations and all relevant state & federal regulations as you craft your social media policy.