Labor & Employment Archives - Page 82 of 154

Pet Policies at Work: Considerations for Employers

As millennials continue to negotiate workplace perks, such as flexible hours, gourmet cafeterias, gym memberships, and on-demand laundry services, employers may be confronted with employees who seek to bring pets to work for convenience, companionship, or to promote creativity and calmness. Beyond providing reasonable accommodations (absent showing an undue hardship) for disabled employees with services animals, here are some considerations for employers regarding voluntary pet policies.

Pros and Cons

Recent studies and articles advocate for pet-friendly workplaces, citing a number of benefits to companies and workers. Benefits include increased worker morale, co-worker bonding, attracting and retaining talent, and lower stress coupled with higher productivity.

On the other hand, permitting pets in the workplace presents a number of issues. For example, according to a leading asthma and allergy organization, as many as three in ten people suffer from pet allergies, meaning someone at work is likely allergic to Fido or Fifi. A significant number of people also have pet phobias, for example, resulting from a traumatic dog bite incident. Other concerns may include workplace disruption due to misbehaved animals, mess, and time-wasting.

Five Tips for Effective Pet Policies

If the Pros outweigh the Cons, the next question is: “[w]hat should I put in a pet policy?” Here are five things to consider when preparing a pet-policy:

Ask Around: Offer employees an opportunity to provide feedback before implementing a pet-policy. Doing this allows the company time to confirm employee interest in the idea and address any concerns or issues before employees bring pets to work.
Set a Schedule: Establish a schedule for pet-friendly work days, e.g., once a week or month, to provide structure and predictability so that the company and employees can plan, either to bring their pets (or allergy medicine) or to work remotely, for days when pets may be at the office or jobsite.
Provide Pet Space: Designate certain areas as pet-friendly. This benefits everyone. For areas where pets are welcome, provide perks like snacks, cleaning supplies, and toys. Designate entrances and exits that pet owners can use to bring their animals in and out. Space planning also helps employees who prefer to keep their distance, as boundaries provide notice of places to avoid.
Offer Pet Benefits: Certain federal and/or state laws prohibit companies from permitting pets (not to be confused with ADA service animals) at work. Offering employees other benefits like pet insurance, pet bereavement, pet daycare, and financial help for pet adoption are other ways companies can support their pet-owning workers, even if pets can’t come to work.
Waivers and Insurance: No list is complete without accounting for the chance something may go wrong. Consider requiring employees who bring pets to work to sign a waiver of liability for the company. Similarly, companies should check with their insurance to make sure that they are covered in the event an animal causes an injury in the workplace.

What about the ADA?

Voluntary pet policies should be considered separate from a company’s obligation to provide disabled workers with a reasonable accommodation, which may include use of a service animal at work. Three questions to consider when an employee asks to bring a service animal to work as an accommodation include: (1) does the employee have a disability; (2) is this a service animal, meaning is it trained to perform specific tasks to aid an employee in the performance of the job; and (3) is the service animal a reasonable accommodation.

If a service animal results in complaints from other employees (e.g., allergies, phobias, disruption), employers may consider other accommodations, or take other steps to address these complaints. The Job Accommodation Network, a service of the U.S. Department of Labor, Office of Disability Employment Policy, has some helpful tips for accommodating service animals.

ARTICLE BY Garrett C. Parks of Polsinelli PC

Lawsuits Against Overtime Rule, Voluntary Wellness Program, ADA: Employment Law This Week – October 3, 2016 [VIDEO]

States, Businesses File Lawsuits Against Overtime Rule

Our top story: The U.S. Department of Labor (DOL) is facing a fight over its new overtime rule. Effective December 1, the new overtime rule will raise the minimum salary threshold required for white-collar exemptions under the Fair Labor Standards Act to $913 per week, more than doubling the current threshold. But Texas and Nevada are leading 21 states in a lawsuit challenging the DOL’s updated rule, and more than 50 business groups, including the National Retail Federation and the U.S. Chamber of Commerce, have brought a separate challenge. At the same time, the U.S. House of Representatives voted to delay the effective date of the new regulation by six months. These challenges are based on concerns that the new salary threshold would mean a big increase in costs for employers and oversteps the DOL’s authority. Kristopher Reichardt, from Epstein Becker Green, has more.

“This was obviously a coordinated effort to attack the new overtime regulations on multiple fronts. Both suits take slightly different paths to achieve the same objective. . . . The Eastern District of Texas, a conservative jurisdiction, is somewhat known for moving its docket along quickly, which is important to any challenge, since the new rules take effect in just two months, despite some congressional attempts to delay the rule until June 1 of next year. . . . Employers should absolutely continue to prepare for the overtime rule going into effect on December 1. It’s unlikely that these lawsuits would delay or stop these rules. Employers should expect that they will go into effect.”

Court Finds That Voluntary Wellness Program Does Not Violate the ADA

An employer’s voluntary wellness program survives an Equal Employment Opportunity Commission (EEOC) challenge. A lighting manufacturer in Wisconsin requires an anonymous health risk assessment in order to participate in its health plan. The EEOC filed suit against the company, claiming that the program violated restrictions in the Americans with Disabilities Act (ADA). The district court found that the program did not violate the ADA. But perhaps more importantly, the court deferred to the EEOC’s regulation stating that wellness programs are not covered by the ADA’s “safe harbor” and can violate the ADA if the exams are not voluntary.

Truthful Statements Protected Under NLRA, Even if Disparaging

Technically truthful statements are protected under the National Labor Relations Act (NLRA), even if they’re disparaging. A group of DirecTV technicians were fired after appearing on a local news station discussing a new company pay incentive. The incentive was tied to convincing customers to let DirecTV use landlines to track viewing habits. A split D.C. Circuit affirmed a National Labor Relations Board ruling in favor of the employees, finding that the technicians’ comments were based in truth and thus fell under the protection of the NLRA. Therefore, the company must reinstate the technicians.

Tip of the Week

To celebrate Global Diversity Awareness Month, we’re bringing you a diversity-focused “Tip of the Week” each episode in October. With us this week is William A. Keyes, IV, President of the Institute for Responsible Citizenship, with some advice on growing a diverse culture by demanding excellence.

“One of the things I notice is that the brightest young African-American men are often ignored when it comes to great opportunities. Now, you probably find that surprising, but that’s been my observation. . . . So, my argument is that for a top-tier company that is saying that it’s committed to attracting top talent of color, if you’re going to do that, you should really commit to it, state that commitment, and settle for nothing less. Having done that, you really take care of your retention problems, because you bring in people who are really talented. You set a high bar for them, high standards for achievement that you expect for them to meet, they do so. Not only do you retain them, but you create a culture that is attractive to other people who also want to pursue excellence.

ARTICLE BY George Carroll Whipple, III of Epstein Becker & Green, P.C.

Labor Department Announces Procedural Changes to H-2B Visa Program

In an effort to further streamline the H-2B application process and make it less burdensome for employers, the Department of Labor has announced procedural changes to reduce the amount of documentation to demonstrate “temporary need.”

To get approval to hire H-2B workers, an employer must establish that the need for H-2B workers is temporary in nature, i.e., “limited to one year or less, but in the case of a one-time event could last up to 3 years.’’ The temporary need must be a one-time occurrence, seasonal, peak load, or intermittent. The DOL H-2B regulations envisage a two-part application process: (1) the agency adjudicates whether the employer has a temporary need through the employer registration process and (2) adjudicates the employer’s actual application to hire H-2B workers. However, as the DOL has not implemented the registration requirements of its regulations, the agency is adjudicating the employer’s temporary need during its review of the actual H-2B labor application.

Employers must complete Form ETA-9142B, Section B, which requires a statement on the nature of the temporary need, duration of employment, number of workers sought, and standard of need. The employer must demonstrate the scope and basis of the temporary need to enable the certifying officer (“CO”) to determine whether the job offer meets the statutory and regulatory standards for temporary need. However, without a registration process, many employers have had to submit additional documentation, such as summarized monthly payroll records, monthly invoices, and executed work contracts with the Form ETA-9142B, to demonstrate temporary need. For recurrent users of the H-2B visa program who receive H-2B labor certification for year-to-year, based on their business cycle, the statement and information on temporary need does not change.

DOL has concluded, “The additional documentation submitted by many employers, which is substantially similar from year-to-year for the same employer or a particular industry, creates an unnecessary burden for employers as well as the CO, who must review all documents submitted with each application.”

The agency announced that, effective September 1, 2016,

To reduce paperwork and streamline the adjudication of temporary need, effectively immediately, an employer need not submit additional documentation at the time of filing the Form ETA-9142B to justify its temporary need. It may satisfy this filing requirement more simply by completing Section B “Temporary Need Information,” Field 9 “Statement of Temporary Need” of the Form ETA-9142B. This written statement should clearly explain the nature of the employer’s business or operations, why the job opportunity and number of workers being requested for certification reflect a temporary need, and how the request for the services or labor to be performed meets one of the four DHS regulatory standards of temporary need chosen under Section B, Field 8 of the Form ETA-9142B. Other documentation or evidence demonstrating temporary need is not required to be filed with the H-2B application. Instead, it must be retained by the employer and provided to the Chicago NPC in the event a Notice of Deficiency (NOD) is issued by the CO. The Form ETA-9142B filing continues to include in Appendix B, a declaration, to be signed under penalty of perjury, to confirm the employer’s temporary need under the H-2B visa classification (Appendix B, Section B.1.).

DOL clarified that its certifying officer would review the employer’s statement of temporary need and recent filing history to determine whether “the nature of the employer’s temporary need on the current application meets the standard for temporary need under the regulations. If the job offer has changed or is unclear, or other employer information about the nature of its need requires further explanation, a NOD requesting an additional explanation or supporting documentation will be issued.”

ARTICLE BY Otieno B. Ombok of Jackson Lewis P.C.

Can Employees Commute Tax-Free on Uber or Lyft?

Uber, Lyft, and their competitors, offering handy apps, responsive drivers and competitive prices, are fast becoming a favored commuter option. Many employers either subsidize employee commuter expenses or allow employees to pay for commuter expenses through payroll deductions. Under current law (Internal Revenue Code Section 132(f)) and regulation, these expenses can be tax-free (up to certain dollar limits) if they are incurred through qualifying commuter highway vehicles, van pools, transit passes, parking, and bicycles. Many employers and employees are asking: can Uber and Lyft commutes be provided tax-free?

A quick dive into the legal weeds

Of the types of qualifying commuter expenses, only the “van pool” exemption potentially applies to Uber and Lyft. Generally, the fair market value of qualifying “van pool” benefits may be excluded from an employee’s income up to $255 per month (2016). Slightly different rules apply depending on whether the van pool is employer-operated, employee-operated, or “private or public transit operated.”

In the case of employer-operated or employee-operated van pools, the vehicle in question must seat at least six adults (excluding the driver). In addition, at least 80% of the vehicle’s mileage must be reasonably be expected to be (1) used to transport employees between their homes and jobs and (2) used on trips during which the number of employees transported for commuting is at least 50% of the vehicle’s adult seating capacity (excluding the driver). This is the so-called “80/50” rule. A “private or public transit operated” van pool vehicle must also seat at least 6 adults (excluding the driver) but is not required to meet the 80/50 rule. But what’s a “private or public transit operated” van pool?

The regulations say that the van pool must be “owned and operated either by public transit authorities or by any person in the business of transporting persons for compensation or hire.” In a series of Information Letters (IRS Info. Letters 2014-0028, 2015-0004, and 2016-0004) the IRS suggests that the issue is factually-charged, and that a van owned by a private vendor will not automatically qualify as “private or public transit operated”. Here are some key excerpts from IRS Info. Letter 2016-0004:

“The term “operate” is not specifically defined in Code Section 132 or the regulations. However, the Merriam-Webster Dictionary definition of “operate” includes “to use and control (something); to have control of (something, such as a business, department, program, etc.).”

“Thus, in determining whether a van pool is “operated” by an employer, an employee, or by a private or public transit authority, factors such as who drives the van, who determines the route, who determines the pick-up and drop-off locations and times, and who is responsible for administrative details would all be relevant factors.”

What case is the IRS making here exactly? Is the IRS saying that a van pool can be “employer-operated”, “employee-operated”, “private or public transit operated” or possibly none of the above? Or, is the IRS suggesting that some van pools that individuals or employers consider to be “private or public transit operated” should actually classified as “employer-operated” or “employee-operated” (and subject to the 80/50 rule)? Clarification from the IRS would be most welcome.

Application to Uber and Lyft

Can employers provide or facilitate tax-free Uber or Lyft rides?

First, Uber or Lyft must actually be a “van pool”. Uber does have an “UberPool” service, and Lyft offers “Lyft Line”, which are meant to carry several passengers in the same direction and would seem to qualify.

Second, the vehicle used for the pool must seat at least six adults (not counting the driver). In Boston (where I live), the UberPool service currently maxes out at 4 riders (and would not qualify). In New York City, however, Uber has begun offering UberPool in six-passenger vehicles. So currently UberPool clears this hurdle, but only in some markets. (In fairness to Lyft, I was unable to easily dig up similar information on Lyft Line.)

Third, are UberPool and Lyft Line “private or public transit operated”? In spite of the frustratingly unclear series of IRS Information Letters cited above, signs point to “yes”. IRS regulations (which trump Information Letters) require that the pool services be “owned and operated by [a] person in the business of transporting persons for compensation or hire.” This test seems to be satisfied whether the “person” is the corporate entity or the individual driver.

In sum: Lyft and Uber can potentially qualify as tax free benefits, if the cars seat at least six passengers plus a driver. But read on . . .

Anything else to worry about?

Even if the “van pool” hurdle is overcome, there are some administrative issues to consider. While none of these hurdles are insurmountable, they promise to add a layer of hassle for employers. For example:

The IRS directs employers to provide vouchers (or something similar) to employees, which the employees may then use to pay for van pools. Cash reimbursements may be used in lieu of vouchers only if vouchers are not readily available. Employers will need to determine whether something like a voucher system can be arranged with Uber or Lyft, and if not, the employer must honor the IRS’ cash reimbursement substantiation rules.
If the benefit is provided through pre-tax payroll deductions, advance elections (in writing or electronic) must be made by employees. The employer will need to arrange a system to do so.
Employers will need to figure out how to value the Uber or Lyft rides. Generally, the fair market value of the benefit is based on all the facts and circumstances. If a car seats six, but the employee rides alone, should the employee be reimbursed tax free for 1/6 of the fare or the entire fare? Or should the value be based on the value of one seat in an ordinary van pool in the employee’s market? Or the entire fare paid by the employee? Note also that there are a number of vehicle valuation rules under the Internal Revenue Code that may be useful. Each employer should confer with its accountants and tax counsel on this point.
Finally, employers need to determine whether it makes sense to offer Uber and Lyft commuter benefits as part of a transportation benefit package. In addition to the added administrative burden, there are optics issues. Proliferation of these policies could cause commuter spending to be redirected from public transportation to Uber and Lyft, creating an argument that the practice is not environmentally forward. Employers should also consider whether any applicable state or municipal laws or ordinances might impact an employer’s transportation benefits.

Conclusion

Based on current guidance, it appears that rides provided to commuters by Uber, Lyft and their competitors may, in some cases, be framed as tax-favored commuter benefits. However, it remains to be seen whether the IRS will take steps to curtail this practice. Employers should carefully consider IRS guidance and administrative concerns, and consult with counsel, before including Uber and Lyft in their transit reimbursement benefits.

ARTICLE BY Patricia A. Moran of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

Recent Studies Show Increasing Need For Employee Training in Data Security

Two recent studies show an increasing need for companies to better train their employees in data security to prevent data and monetary loss. On September 7, 2016, Wells Fargo Insurance released a study on cyber security showing some interesting trends in companies with $100 million or more in annual revenue. The second-annual study questioned 100 decision makers on issues of data, hackers, network vulnerabilities, and other cyber security matters. The study showed that companies were nearly twice as concerned with losing private data as they were with being hacked or having some other security breach disrupt their system.

In particular, Wells Fargo noted the surprising trend that companies are not more concerned with employee misuse of technology (finding only 7% of companies believed that their employees’ misuse of technology posed a potential threat). Yet this is a real issue. This was confirmed in another study released this month by the Ponemon Institute – 2016 Cost of Insider Threats – which showed that organizations are spending on average $4.3 million annually to mitigate and resolve insider threats. “Companies perceive insider threats as mostly driven by malicious employees, but the fact is that a significant portion of the risk is due to insider carelessness.”

The Ponemon report polled 280 IT and security practitioners from medium and large organizations. It found a total of 874 insider incidents over the course of a year, 65% of which were caused by employee or contractor negligence, 22% by malicious employees or criminals, and about 10% by imposter fraud. The security incidents from negligence cost the respondents about $207,000 per incident and about $2.3 million annually.

But both studies point out that what companies are doing to combat what has been termed “the human factor,” or an employee’s misuse of technology, is not enough. As noted in the Ponemon report, the “training programs that companies have are just not very good. They are really focused on check-the-box compliance requirements to show everyone that [the] company [has] training on data protection.” Wells Fargo noted, “[c]yber risk management is first and foremost about education,” and this applies to companies both big and small. In the domain of imposter fraud alone, where a fraudster gains access to the email account of a company’s senior executive and then requests a payment, the professional risk practice at Well Fargo handles five to ten of these incidents each week, from clients that are not well-known brands.

In addition, the time to contain these insider-related incidents correlates directly to the total cost to the company. The Ponemon study showed that it took more than 60 days to contain the incident or attack for 58% of their sample, with another 20% experiencing containment within 30 days.

So what should companies be doing? Companies are most frequently using data loss prevention tools and mandatory user training and awareness. However, as the Ponemon study shows, deployment of user behavior analytics would result in the largest total cost savings, at $1.1 million (based on the mean value of $4.3 million), and could drive the most impact in terms of cost on investment. The recommendation is to focus on visibility and transparency – not on stringent controls – and to build “a layered defense that delivers a comprehensive range of capabilities across visibility, detection, context and rapid response.”

ARTICLE BY Mary Kathryn Curry of Polsinelli PC

Café Manager Seeks Class Action for Overtime Pay

A Chicago-based Barnes & Noble Café Manager filed a collective action on September 20, 2016 in federal court, Southern District of New York, seeking overtime compensation for herself and similarly situated individuals who have worked as Café Managers “or in comparable roles with different titles”, for Barnes & Noble anywhere in the United States. According to the complaint, Barnes & Noble operates 640 retail stores in the 50 states. Brown v. Barnes and Noble, Inc., 1:16-cv-07333-RA (S.D.N.Y. 2016).

The plaintiff, Kelly Brown, claims that Barnes & Noble deliberately understaffs its Cafés, and strictly manages hours worked by non-exempt Café employees to avoid paying them overtime. As a consequence, the suit claims, Café Managers “spend the vast majority of their time performing the same duties as non-exempt employees, such as: making coffee and other beverages, preparing food, serving customers, working the cash register and cleaning the Café.” Ms. Brown claims that Café Managers regularly work in excess of forty hours and frequently work ten or more hours a day.

The lawsuit asserts that Café Managers are not exempt “executive” employees because they: (1) are closely supervised by their Store Managers and their work is specifically defined by corporate policies and procedures; and (2) are not responsible for the overall performance of the stores, or for coaching, evaluating, hiring or firing employees.

To be exempt from overtime as an executive employee, the employee must satisfy both the duties and the salary test:

Duties Test

The “executive” exemption requires that the employee:

1. regularly supervises two or more other employees;

2. has management as the primary duty of the position; and

3. has some real input into the job status of other employees (such as hiring, work assignments, promotions and/or firing).

With regard to the first factor, the supervision must be a regular part of the employee’s job. The “two employees” requirement may be met by supervising two full-time employees or the equivalent number of part-time employees.

For the second factor, the FLSA Regulations set forth a list of typical management duties, which, in addition to supervising employees, includes:

interviewing, selecting, and training employees;

setting rates of pay and hours of work;

maintaining production or sales records (beyond the merely clerical);

appraising productivity; handling employee grievances or complaints, or disciplining employees;

determining work techniques;

planning the work;

apportioning work among employees;

determining the types of equipment to be used in performing work, or materials needed;

planning budgets for work;

monitoring work for legal or regulatory compliance; and

providing for safety and security of the workplace.

An employee may qualify as performing executive job duties even if she performs a variety of “regular” job duties, such as preparing food or drinks and/or serving customers. However, she must also perform at least some of the tasks a “boss” would typically perform, as set out above. For example, the executive must have genuine input into personnel matters. This does not require that the employee be the final decision maker, but the employee’s input must be given “particular weight.”

Salary Test

Ms. Brown’s salary of $33,000 is above the current salary threshold for exempt employees, $23,600. However, the new USDOL Rule will raise the threshold to $47,476 effective December 1, 2016.

Recent Attorneys General Court Challenge to New Salary Test

On September 20, 2016, the same day that Ms. Brown filed her lawsuit, officials from 21 U.S. states filed a lawsuit claiming that the DOL acted unlawfully in issuing the new salary limit, which the states assert will place a heavy burden on state budgets. Hours after the states announced their lawsuit, the U.S. Chamber of Commerce and other business groups filed a separate challenge to the rule in the same federal court in Sherman, Texas. Business groups and Republican officials say that the rule will force employers to demote salaried workers to hourly positions and create more part-time jobs.

Whether this challenge is sustained, the Barnes & Noble case serves as a reminder that an employee must meet both the duties and the salary tests to qualify for the exemption.

TAKE-AWAYS:

Regardless of which salary threshold applies, the “duties” test remains unchallenged.
The restaurant and related-food and drink businesses are targets for plaintiff class action lawyers.
Assistant Managers in larger operations have asserted claims similar to Ms. Brown’s here: that is, that they primarily do the same work as the rank-and-file employees.
All employers should conduct regular audits of the jobs currently classified as exempt. We are reminded again and again in the case law that the employee’s job title is not the a significant factor in the outcome.
Non-compliance will result in exposure for the overtime pay owed plus heavy penalties; double damages under federal and Connecticut law, treble damages under Massachusetts law.

ARTICLE BY Barry J. Waters of Murtha Cullina

Twenty-One States Join Forces to Oppose the FLSA’s New Overtime Rule

As most of you know, in May 2016 the Department of Labor (DOL) released its long-awaited Final Rule modernizing the Fair Labor Standard Act’s (FLSA) white-collar exemptions to the overtime requirements of the FLSA. See our rundown of the changes in our earlier post here. The new rule is scheduled to take effect December 1, 2016.

This week, however, 21 states banded together to express their disapproval of the Final Rule and filed a lawsuit against the DOL. The states challenging the constitutionality of the rule are: Alabama, Arizona, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, New Mexico, Ohio, Oklahoma, South Carolina, Texas, Utah and Wisconsin.

The primary argument in the states’ lawsuit is that the new FLSA rule will force many businesses—particularly state and local governments—to unfairly and substantially increase their employment costs. For state governments in particular, the states allege that the new rule violates the Tenth Amendment by mandating how state employees are paid, what hours they will work and what compensation will be provided for working overtime. The lawsuit also alleges that implementation of the new rule will disrupt the state budgeting process by requiring states to pay overtime to more employees and would ultimately deplete state resources.

It’s no coincidence that more than 50 business groups—including the US Chamber of Commerce and the National Association of Manufacturers—filed a similar lawsuit on the same day and in the same court. This lawsuit alleges, among other things, that the new rule disregards the mandate of Congress to exempt white-collar employees from the overtime requirements of the FLSA.

How the courts will handle these parallel cases is an unknown. For now, employers—both public and private—are encouraged to proceed as though the new rules will take effect on December 1, 2016 as scheduled.

ARTICLE BY Anne Marie Schloemer of Squire Patton Boggs (US) LLP

Pokémon Go: At (Or Coming To) A Workplace Near You

If you haven’t already heard, Pokémon Go, a virtual reality app created by Nintendo and Niantic, is taking the world by storm. According to Forbes, the app is about to surpass Twitter on the Android platform in daily active users, even though it was first released just a couple weeks ago in the United States and Australia and has not yet been made available worldwide. More and more people are getting in on the action, exploring real world landscapes with their smart phones in hopes of capturing virtual Pokémon appearing on their screen based on their phone’s clock and GPS location. It seems that no location is off limits, as Pokémon appear on or near both public and private property – even in bathrooms. As the Pokémon franchise motto commands, users “Gotta Catch ’Em All” at designated “Pokéstops” in their quest to become a renown Pokémon “trainer” who can out battle other users at local, virtual “Gyms.”

Pokémon Go users have been wreaking havoc, day and night, along the way. They have been loitering near, and trespassing on, private property, so much so in Massachusetts that the Boston police are calling for users to be “vigilant” in avoiding private property and the “obvious inherent dangers” presented by playing Pokémon Go. They have disrupted operations at hallowed sites, such as the 9/11 Memorial and the Holocaust Museum. One even interrupted a live weather report. Users have used the app to lure and then rob other, unsuspecting users. One gamer ran his car into a tree while playing the app. Another was hit by a car trying to cross a public highway while playing the app. They have even fallen off a 75 foot-high cliff while playing the app.

Employers are not immune from the Pokémon Go fun. They have been – or soon will be – affected not only as property owners but also as managers of their employees.

Employer as Property Owner

As legal bloggers have noted, Pokémon Go challenges the traditional paradigm for legal property rights. It blurs the lines between reality and augmented reality, raising a number of interesting legal questions in the process. Does placing a Pokémon on private property without permission affect a property owner’s common law right to exclusive ownership of his property? Are Nintendo/Niantic potentially liable for placing characters on private property? Does the presence of virtual Pokémon on a property create an attractive nuisance that could create liability for the owner in the event a child-user injures himself on the property? If so, how would the property owner abate the nuisance? Can the state preclude users from playing Pokémon Go on public property consistent with the First Amendment? The answers to these questions are unclear.

What is clear, however, is a property owner’s right to exclude others from his property under West Virginia law. A property owner generally has the right to exclude other persons from his property, but there are exceptions to this rule. For example, if the property is a place of public accommodation, the property owner may not exclude persons based on their protected status, e.g., race, sex, religion, disability, or national origin. Generally speaking, however, property owners could legally exclude Pokémon Go users from their premises. To wit, in the case of a trespasser, a property owner could seek monetary damages for any damages caused by a trespass, even if such damages are only nominal.

A property owner’s obligation to keep his property safe is also clear. In the case of an invited person, the property owner must exercise reasonable care to protect the invited person from anticipated/foreseeable hazards. In the case of a trespasser, such as a wandering Pokémon Go user, the property owner need only refrain from willfully or wantonly injuring the trespasser to escape liability.

Pokémon Go isn’t all bad from a property owner’s perspective, however. For the right property/business owner, Pokémon Go could be a very useful marketing tool. Just Google “6 Ways To Use Pokémon Go in Your Local Marketing Campaign” to learn how. One New York Pizzeria spent just ten dollars to have a dozen Pokémon lured to its store and saw a 75% increase in their business. How’s that for return on investment?

Employer as Manager

Pokémon Go also raises several concerns for employers as managers. Several of these concerns are obvious. The foremost of these concerns may be workplace safety. In a little more than a week, Pokémon Go users have shown just how dangerous the app can be. Think about what could happen if you added a distracted user to the existing hazards in your workplace. Disaster. In addition, there is the age-old concern of vicarious liability, especially for employers who have employees out on the road. Your mobile device policy should preclude employees from using a mobile device while driving, if it doesn’t already. West Virginia law makes it unlawful to use your phone while operating a motor vehicle on a public road.

Further, Pokémon Go is yet another appealing fad, much like March Madness, that threatens to bring your workforce to a halt while on the clock, particularly if you employ groups of Millennials or Gen Zers. You must set appropriate boundaries and outline clear expectations with your employees, especially where you are relying on broad language in your company handbook. If you need a “catchy” sign to get your employees’ attention, one human resource manager has got you covered:

pokemon forbidden

Otherwise, revisit your personnel policies and update them as needed to mitigate the potential employment carnage that could result from Pokémon Go. At bare minimum, no Pokémon hunts in the bathroom!

There are at least a couple of hidden concerns with Pokémon Go too. For one, users participate on the Pokémon Go program with their phone’s camera and will soon, if they do not already, have the option of recording or even live streaming their Pokémon Go gameplay. That is cause for concern where employees are permitted to play Pokémon Go on breaks in the workplace. In their quest to capture Pokémon “living” around the office, they may record or stream unsuspecting coworkers, or worse, confidential company information. This creates one more avenue for workplace conflict among employees and raises security concerns for private company information.

For another, Pokémon Go may be a cyber-security concern for company’s using Google products, such as Chrome, Gmail, and Google drive. When the app first debuted, it requested “full access” to the user’s Google account, which meant that Nintendo and/or its partner, Niantic, could not only review your email, your Google docs, Google photos, your location history, your search history, but also, modify all that content, and even send emails as the user of your Gmail account! For users who signed up with a company-related Google account, Niantic was functionally a business partner. It appears that recent outcry has led the Pokémon Go creators to modify the permissions required to download the app. It will be interesting to see whether this change is enough to quell the public outcry. Either way, the initial cyber-security scare is a reminder that employers should remain vigilant in maintaining the wall between work and play with employees that have been granted a company-sanctioned mobile device.

What You Should Do

Pokémon Go is all the rage and promises to be for your employees soon, if it isn’t already. Regardless of whether the app catches on at your workplace, go through the exercise of reviewing your mobile device and social media policies. Are they inclusive of augmented reality apps? If necessary, update them to ensure that they are clear on the use, non-use, or limited use of augmented reality apps like Pokémon Go at your workplace. But don’t stop there. Review your policies with your employees, even if you don’t make any changes. Make sure that employees are aware of the boundaries for augmented reality apps at the office.

ARTICLE BY Benjamin W. Mounts of Steptoe & Johnson PLLC

OSHA to Employers: No Gagging Whistleblowers!

On September 9, 2016, the United States Occupational Safety and Health Administration (“OSHA”) published new guidelines for approving settlements between employers and employees in whistleblower cases to ensure that those agreements do not contain terms that could be interpreted to restrict future whistleblowing. OSHA reviews settlements between employees and employers to ensure that they are fair, adequate, reasonable, and in the public interest, and that the employee’s consent was knowing and voluntary. The guidance provides that OSHA will not approve settlement agreements that contain provisions that discourage (or have the effect of discouraging) whistleblowing, such as:

“Gag” provisions that prohibit, restrict, or otherwise discourage an employee from participating in protected activity, such as filing a complaint with a government agency, participating in an investigation, testifying in proceedings, or otherwise providing information to the government. These constraints often arise from broad confidentiality or non-disparagement clauses, which complainants may interpret as restricting their ability to engage in protected activity. The prohibited constraints may also be found in provisions that:
- restrict the employee’s right to provide information to the government, file a complaint, or testify in proceedings based on a respondent’s past or future conduct;
- require an employee to notify his or her employer before filing a complaint or voluntarily communicating with the government regarding the employer’s past or future conduct;
- require an employee to affirm that he or she has not previously provided information to the government or engaged in other protected activity, or to disclaim any knowledge that the employee has violated the law; and/or
- require an employee to waive his or her right to receive a monetary award from a government-administered whistleblower award program for providing information to a government agency.
Provisions providing for liquidated damages in the event of a breach where those provisions are clearly disproportionate to the anticipated loss to the respondent of a breach, the potential liquidated damages would exceed the relief provided to the employee, or whether, owing to the employee’s position and/or wages, he or she would be unable to pay the proposed amount in the event of a breach.

When OSHA encounters these types of provisions, it will ask the parties to remove those provisions and/or prominently place the following statement in the settlement agreement: “Nothing in this Agreement is intended to or shall prevent, impede or interfere with the complainant’s non-waivable right, without prior notice to Respondent, to provide information to the government, participate in investigations, file a complaint, testify in any future proceedings regarding Respondent’s past or future conduct, or engage in any future activities protected under the whistleblower statutes administered by OSHA, or to receive and fully retain a monetary award from a government-administered whistleblower award program for providing information directly to a government agency.”

ARTICLE BY Shennan Harris of Squire Patton Boggs (US) LLP

Oklahoma and U.S. DOL Agree to Tag-Team Worker Misclassification Initiatives

As the effort to stamp-out worker misclassification under the Fair Labor Standards Act continues to run strong, Oklahoma is the latest state to join the U.S. Department of Labor’s Misclassification Initiative. Specifically, the Oklahoma Employment Security Commission entered into a three-year Common Interest Agreement with the U.S. DOL’s Wage and Hour Division, under which the agencies agree to share data, exchange information, and coordinate investigations and other enforcement actions within Oklahoma. As part of this collaboration each agency will be responsible for designating a “Point of Contact” and a representative to participate in quarterly (if not more frequent) meetings.

Employers in Oklahoma need to be cognizant of the risks of worker misclassification and continue to ensure that they are not improperly classifying employees as independent contractors. Indeed, Oklahoma’s joinder with the DOL’s Misclassification Initiative serves as a reminder to employers that this is a hot-button issue of particular interest to both state and federal officials, and targeted efforts are being made to eradicate misclassification nationwide. For more information, employers can look to the U.S. DOL’s website dedicated to the Misclassification Initiative. The DOL has provided a map identifying those 35 states that have partnered with the DOL as part of the Misclassification Initiative and details of such arrangements, as well as fact sheets and general DOL guidance on worker classification issues that may be of use.

This post was written by Koryn M. McHone of Barnes and Thornburg LLP.

Category: Labor & Employment

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