Published By: Maxwell S. Kennerly, Esquire

Fair Labor Standards Act

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“Social media law” is all the rage these days, and it’s not hard to see why: employers across the country are desperate to use social media to promote their brands or to rid themselves of undesirable employees, as the case may be. 2012 was the first year that really produced anything like a solid body of law to be analyzed as the first wave of social media lawsuits produced court opinions and a handful of legislatures began to address the issue.

A recap is in order. I don’t profess to be an expert on social media law — Google tells me there are over 194 million “social media lawyer” pages, though most everything you could need would be on MoFo’s Socially Aware, or Eric Goldman’s blog, or Bradley Shear’s blog — but the big trends aren’t hard to spot. Three of those trends jumped out at me:

First, the National Labor Relations Board issued several memoranda last year noting that both union and non-union workers had a right to discuss working conditions without fear of retaliation, including on social media websites, a policy the NLRB has already enforced to restore the jobs of workers fired for negative remarks about their employer on Facebook and Twitter. (Then came the judicial atrocity of Canning v. NLRB, which has thrown into doubt everything the NLRB has done since January 2012, so who knows what the eventual fate of those policies will be.)

Second, a couple of state legislatures have stepped in to stop the odious practice of employers demanding the usernames and passwords of potential employees, to snoop for embarrassing information. Eric Goldman and Venkat Balasubramani have raised concerns about these laws (Eric here, Venkat here), not (I hope) because they think employers should be snooping around their employee’s private lives, but primarily on the grounds that the law can create problems where employees end up using their social media accounts for “mixed” personal and business purposes. More on that in a moment.

Third, several lawsuits involving Twitter, Facebook, and LinkedIn accounts that were either — depending on which side you credit — personal accounts hijacked by the employer after the employee was left, or business accounts stolen by the employee after the employee left, produced court opinions. Venkat’s post above links to his various discussions of each, but for the moment there aren’t really any clear rules of law other than, in essence, everybody (employers and employees) should pay attention to their employment policies and should figure this issue out in advance.

The “mixed” personal and business social media accounts are what prompted this post.
Continue Reading When An Employer’s Social Media “Encouragement” Becomes An Overtime Wage Violation

Two weeks ago I discussed how banks routinely targeted the most financially vulnerable members of society for fraudulent overdraft and debt collection procedures. If there are three words to sum up the American economy for the lower half of earners, it’s “nickel and dimed.” When Barbara Ehrenreich was researching her book Nickel and Dimed, she was shocked by “the totalitarian nature of so many low-wage workplaces. On two jobs, for example, there was a rule against talking with your fellow employees.”

It’s hard not to use the phrase “nickel and dimed” every time I read about a Fair Labor Standards Act case, and yesterday The Legal Intelligencer reported on the $20.9 million settlement of a wage-and-hour class action against Rite Aid. If anyone’s interested, the Order approving the settlement is here. While it was being litigated, the case also produced a good opinion in the Third Circuit, reported at 675 F.3d 249, which allowed state and federal wage-and-hour claims to be brought together in hybrid class/collective actions, bringing claims for the same actions under state and federal statutes.

The class action was brought on behalf of Rite Aid’s assistant store managers and co-managers, whom the company had claimed were part of management, and thus, they claimed, exempt from overtime pay requirements under the FLSA and its analogous state wage-and-hour laws. The lawsuit sought a change in the employees’ designation as well as reimbursement for unpaid overtime wages — and it won on both fronts, forcing a change in the company’s policies two years into the lawsuit and recovering an average of $1,800 to each of the class plaintiffs. (If you’re interested in exemptions law, back in October, Andrew Frisch of Morgan & Morgan at the Overtime Law Blog summarized some recent exemption court opinions.)

There’s a lot of doom-and-gloom in the plaintiff’s bar these days. Over the past decade, the Supreme Court has amended by fiat the Rules of Civil Procedure relating to pleading, has been on the warpath against class actions, has granted the word “arbitration” magical powers even greater than “abracadabra,” and has blown up virtually all lawsuits against generic drug manufacturers — all regardless of the laws Congress actually wrote.

But one area in which plaintiffs have done well recently has been the Fair Labor Standards Act. 
Continue Reading Using The Fair Labor Standards Act For Nickel And Dimed Employees