Professional Liability Matters

Employee wellness plans are a hot item these days. Increasingly, wellness plans are seen as a benefit to both employees and employers alike. As many employers jump on the bandwagon of this growing health trend, they should be aware of the other legal implications of creating and implementing these programs within their company. For example, a popular topic ever since the EEOC issued its proposed regulations last year has been how employee wellness programs can comply with existing regulations such as the ADA and Title II of the Genetic Information Nondiscrimination Act (GINA). Well now it’s time for employers to take note because the EEOC has just finalized its rules in this regard.

Performance reviews are a necessary step in the path to ensuring a team of productive employees. However, as illustrated by a series of recent lawsuits filed by Yahoo employees against the internet giant, performance reviews are not without risks to the employers who administer them. In one such suit, an employee alleges that he and approximately 600 other Yahoo employees were unfairly fired based upon an allegedly unfair performance evaluation system, and were terminated without the notice required by federal and state laws, including the Worker Adjustment and Retraining Notification Act (WARN).

An employee handbook is a necessary and familiar workplace fixture. A recent trend among employers is the inclusion of a mandatory arbitration clause, to avoid a jury trial in the event of employment-related litigation. Both state and federal courts have recently grappled with the validity of arbitration clauses in the employment litigation realm, and have both concluded that such clauses are not enforceable. These cases serve as a reminder that an employer must be vigilant should it wish to make such a clause part of its employment policies.

A dispute over unpaid bathroom break time at the office has resulted in an employer flushing away some $1.75 million as a result of violating the FLSA. The case arose when the Labor Department filed suit against a publisher after discovering that its employees were not earning the $7.25 hourly minimum wage during “personal breaks.” Pursuant to the employer’s policy, employees were required to clock out while using the bathroom, getting a drink or similar breaks.

Under the Fair Labor Standards Act (“FLSA”), employees are entitled to compensation for “hours worked.” However, what is considered compensable work time is a contentious topic for many employers. A recent decision by the Supreme Court is likely to help clarify the test for compensable work under the FLSA and effectively end much of the current litigation faced by employers surrounding back wages and overtime pay. This month, in a rare unanimous decision, the Supreme Court held that employees’ time spent waiting for and undergoing security screenings is not compensable under the Fair Labor Standards Act.

If you frequent Professional Liability Matters than you’ve heard us rant about the importance of up-to-date computer use policies. An employee’s use of workplace computers and other company provided devices may trigger employer liability. As a result, employers must be careful to tailor policies that protect the employer but don’t go too far. It may be tempting for an employer to consider an outright ban of non-work related e-mail use by employees. Tempting, maybe, but improper according to the NLRB. The NLRB’s recent decision very well could have major implications on an employer’s right to restrict employee e-mail communications.

Hiring a new employee is a major investment. Not surprisingly, many professionals utilize social media to screen potential candidates prior to making a hiring decision. Social media can help to confirm a candidate’s professional qualifications and provide insight whether the candidate is a good fit. At the same time, some employers may use social media to identify potential reasons to reject a candidate, such as posting compromising photographs or making inappropriate statements. Employers may feel justified in disqualifying a candidate based on their social media activity; however, doing so for the wrong reasons could violate a candidate’s rights and give rise to liability.