Gordillo & Gordillo, LLC.

Whether employees should be paid for using company issued Blackberry devices was a question posed over at LinkedIn. I answered the question because I thought it was an especially timely one these days. Lawsuits for unpaid overtime are growing increasingly common. The Fair Labor Standards Act that governs federal overtime law has long been one of the most frequently violated laws in America. As mobile technologies become more commonly used by employees, the wage and hour laws are becoming even more difficult for employers to correctly apply.

Under the Fair Labor Standards Act, an employee must be paid anytime the employer “suffers or permits” the employee to work. Suffer or permit to work means that if an employer requires or allows employees to work, the time spent is generally hours worked. If the Blackberry is being used to conduct business, the employee has spent time working and must be paid for it.

How much the employee must be paid is another question that is more complicated. If the employee is paid a salary and is exempt from overtime premium payment requirements, then the employee is not entitled to any compensation beyond the salary. (Exempt employees who are paid only on a commission basis also need not be paid additional compensation). If, however, the employee is not paid a salary then some additional compensation for the time spent “blackberrying” must be paid.

The two most obvious questions that arise when deciding how much to pay an employee for Blackberry time are: (1) when does the compensable time start and end; and (2) what is the pay rate at which the employee must be compensated? If the employee is “on call” in a manner that limits the employee’s freedom, then the employer probably has to pay for the entire “on call” period. On the other hand, if the employee is generally free to use their time as they wish until they receive a “call” (or in this case a message), then most likely only the time spent receiving and replying to the message is compensable.

As for the pay rate, the amount must be sufficient to ensure that the employee is being paid the minimum wage when the total compensation for the work week is divided by the total number of hours worked during that week. Similarly, if the employee is not exempt from overtime premium payments, the rate must be sufficient to not only pay the employee the minimum wage but also an additional amount equal to one half of the regular hourly rate for the overtime hours worked, including the time spent on the Blackberry.

Employment retaliation was the subject of my posts right before the holiday weekend. I return to continue discussing the anti-retaliation statute in Title VII. This is the employment retaliation law addressed by the United States Sixth Circuit Court of Appeals in the interesting and important Niswander v. Cincinnati Insurance Co. case.

The facts are interesting because they begin with such a common transaction. The employee, Niswander, sued her employer for paying her less than male employees. The employer, Cincinnati Insurance, used the court rules to have the employee turn over documents she had to the employer. The employee provided to her lawyer a wide range of documents, including documents not within the scope of the employer’s request. The employee’s lawyer gave the employer’s lawyers the documents requested, and erred on the side of cooperation by resolving doubts about what should be produced in favor of producing.

Then the facts take a twist. Employee gets fired for violating company policy prohibiting disclosure of confidential company documents. And the question is: Did the employer violate the law against retaliation under Title VII?

The law is interesting because the court had never before addressed the question of whether producing confidential information that an employer said could not be disclosed could be an activity protected against retaliation under Title VII. Under Title VII, two kinds of conduct are identified as protected activity: “Opposition” and “Participation.” The relevant part of Title VII prohibits retaliation against an employee “because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”

Perhaps the most important difference between “opposition” and “participation” conduct is that courts have held that participation conduct is more broadly protected than opposition conduct. For example, the Title VII retaliation law protection for “participation” covers “any manner” of participation in a Title VII proceeding. But the courts have uniformly held that Title VII retaliation law for opposition is limited to opposition done in a “reasonable manner.” Now, however, the Niswander court limits the meaning of participating “in any manner.” The court has held that when participation involves disclosure of confidential information, the “participation” must be reasonable. In the court’s words: “The analysis of a participation claim does not generally require a finding of reasonableness, as opposed to the requirement that oppositional conduct be reasonable. But when confidential information is at issue, a reasonableness requirement is appropriate.” This is a new restriction on the scope of Title VII’s participation clause protection.

The court applied a six factor test to determine whether the employee had acted reasonably in producing the confidential documents to her lawyer. The six factors are:

1. how the documents were obtained,
2. to whom the documents were produced,
3. the content of the documents, both in terms of the need to keep the information confidential and its relevance to the employee’s claim of unlawful conduct,
4. why the documents were produced, including whether the production was in direct response to a discovery request,
5. the scope of the employer’s privacy policy, and
6. the ability of the employee to preserve the evidence in a manner that does not violate the employer’s privacy policy.

Applying these six factors, the court held that Kathy Niswander had not acted reasonably in giving all of her documents to her lawyers. So the court ruled that she was not protected against retaliation under either the participation or opposition clause. This is a clear victory for employers in Ohio, Kentucky, Michigan, and Tennessee — the states governed under Sixth Circuit law.

But employers should not race to follow Cincinnati Insurance Co.’s lead. Application of the six factors is complex, and employers should certainly seek legal counsel for advice on applying the factors. Moreover, the Niswander decision conflicts with many other legal principles and precedents. Given these conflicts, some modification of the decision in the future by another court would not be surprising.

More on this fascinating decision another day….

Earlier today, I posted about a retaliation lawsuit won by an employer. These are truly significant cases. Look at what just happened in a Cleveland, Ohio retaliation lawsuit. Hours ago, a jury awarded an employee $46.6 million dollars. The case is Luri v. Republic Services, of Ohio LLC in the Cuyahoga County Court of Common Pleas. Read the rest of this entry »

Retaliation lawsuits have been on the rapid rise in the recent past. The Niswander v. Cincinnati Insurance Company decision from the Sixth Circuit Court of Appeals demonstrates why both employees and employers should take care to hire only skilled employment lawyers to fight retaliation lawsuits. Retaliation lawsuits are among the trickiest for employees and most dangerous for employers to fight. This one arose under Title VII’s law against retaliation.

Title VII is the federal law that concerns discrimination on the basis of race, color, religion, sex, or national origin. Title VII prohibits discrimination but also protects employees from retaliation for opposing unlawful discrimination or participating in a proceeding under Title VII. Kathy Niswander joined her female co-workers to sue their employer Cincinnati Insurance Co., under the Equal Pay Act and Title VII. Niswander and her co-workers claimed that Cincinnati Insurance paid women less than men.

During the lawsuit, Cincinnati Insurance Co. requested that Niswander turn over documents she had concerning the lawsuit. She worked from her home, and had many company documents there. Nobody disputed that Niswander properly had the documents in her possession. To prepare the production of documents to Cincinnati Insurance Co., Niswander’s lawyer wrote her a letter and told Niswander to provide “any” documents she had. This is a common request from a lawyer. So Niswander followed her lawyer’s instruction and gave her lawyer far more documents than were necessary to be produced.

Among the documents were some that Niswander admitted were not relevant to her claim for unequal pay. Her lawyer, however, produced the documents to Cincinnati Insurance Co.’s lawyers because Niswander thought the documents might “jog her memory” about how her employer had retaliated against her. But when the documents were produced, Niswander had not yet filed any retaliation lawsuit against her employer.

After Niswander produced the documents to Cincinnati Insurance Co.’s lawyers, Cincinnati Insurance fired Niswander. The reason: According to Cincinnati Insurance, Niswander had violated a company policy that required employees to keep company documents confidential. Niswander thought the reason she was fired was in retaliation for seeking equal pay. So Niswander sued for retaliation. The Sixth Circuit agreed with Cincinnati Insurance Co., and Niswander is now out of a job.

More after the holiday on why this happened and what it all means…

A wrongful discharge lawsuit should be set up from the first day you are hired. Is it too late? Are you already employed and now afraid you are about to be unfairly fired? No, it is never too late to start setting up an employer for a wrongful discharge lawsuit. Read the rest of this entry »

On Wednesday, June 27, 2008, The Americans With Disabilities Act Restoration Act of 2008 passed in The United States House of Representatives. The vote was an overwhelming 402-17. Employers and employees should be watching this carefully. The broad support in the House suggests the new disability discrimination law will also pass in the Senate. With widespread support from Congress, new legislation intended to strengthen protection against discrimination in the workplace is also likely to pass through the President. Read the rest of this entry »

Last week, the annual dinner to close out the year of the Cleveland Employment Law Inn of Court was held. It was a great event. In so many different ways, participating in the Cleveland Employment Law Inn of Court makes me a better employment lawyer. Read the rest of this entry »

By a vote of 43-1 the bipartisan, Committee on Education & Labor for The United States House of Representatives has approved H.R. 3195. It is a bill that will amend the Americans With Disabilities Act. This is very significant legislation.

As described by the Committee’s staff, the newly proposed law: Read the rest of this entry »

Before an employee can recover any money from an employer for discrimination, harassment, or retaliation, the employee must prove that the employer took an adverse employment action against the employee. Across the country, courts have differed when deciding whether negative comments made in an employee’s performance evaluation constitute an adverse employment action. Recently, two Ohio courts addressed this issue that has widespread application to employment disputes, and the two Ohio courts seem to have reached differing conclusions. Read the rest of this entry »

By Amy Joyce
Washington Post Staff Writer
Friday, December 9, 2005; Page D01

Fifteen percent of all workers say they have been discriminated against in their workplace during the past year, according to a new Gallup Organization poll.

The survey was conducted to discover workers’ perceptions of discrimination in their workplaces during a year that marks the 40th anniversary of the formation of the Equal Employment Opportunity Commission after the passage of the Civil Rights Act of 1964. Read the rest of this entry »