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On October 13, 2017, the Court of Appeals for the Third Circuit held that short breaks during the work day of 20 minutes or fewer are compensable as a “bright-line rule” under the Fair Labor Standards Act (“FLSA”).  The case, DOL v. American Future Systems, et al., arose out of the employer’s policy of withholding compensation for any breaks in excess of 90 seconds. Under the employer’s “flexible” break policy, employees were permitted to log out of their computer at their workstation at any time, for any reason, for any length of time, as often as they wished.  If they remained logged off for more than 90 seconds, however, they would not be paid for any part of the time they remained logged off. In other words, even if employees logged out to use the restroom or get a cup of water, they would not be paid if they could not make it back to their computer and log back in within 90 seconds.

The Department of Labor (“DOL”) filed suit against the company, alleging a violation of the FLSA based on the DOL’s interpretation of its own regulation regarding short rest periods, 29 C.F.R. § 785.18.  That regulation provides that “[r]est periods of short duration, running from 5 minutes to about 20 minutes, are common in industry. They promote the efficiency of the employee and are customarily paid for as working time. They must be counted as hours worked.”  The District Court granted summary judgment to the DOL, upholding the regulation and awarding grant of liquidated damages.  The District Court specifically rejected the company’s assertion that its flexible, unpaid break policy was implemented in a good faith attempt to comply with the FLSA.  American Future Systems appealed the decision, arguing that an individualized assessment of the purpose behind each break – specifically, whether the break was more for the employee’s benefit or the employer’s benefit – should govern whether the break is compensable or not, and that because it sought legal advice prior to implementing its rule, it acted in good faith and should not be liable for liquidated damages.
Continue Reading Third Circuit Affirms Bright-Line FLSA Rule on Short Breaks, and Rejects Employer’s ‘Good-Faith’ Absent Disclosure of Legal Advice

On Tuesday August 15, the U.S. Court of Appeals for the Third Circuit affirmed the dismissal of a claim for disability discrimination, where the plaintiff was deemed psychologically unfit for duty and subsequently had his employment terminated. The Third Circuit’s decision provides guidance for employers regarding the extent of their obligations to accommodate employees under the Americans with Disabilities Act (“ADA”).

In McNelis v. Pennsylvania Power & Light Co., No. 16-3883 (3d Cir., Aug. 15, 2017), the plaintiff, an armed security guard for a nuclear power plant, sued his former employer for disability discrimination following his termination.  McNelis had experienced mental health problems, including extreme paranoia.  His behavior prompted a fitness-for-duty evaluation by an independent psychologist, which was required under PPL policy, as well as under regulations promulgated by the Nuclear Regulatory Commission.  The psychologist determined that McNelis was unfit for duty, and his employment was terminated shortly thereafter.
Continue Reading Third Circuit Finds No ADA Violation Where Employee Deemed Unfit for Duty

On January 23, 2017, Philadelphia Mayor Jim Kenney signed the Philadelphia Wage Equity Ordinance into law. The bill amends the Philadelphia Fair Practices Ordinance to prohibit employers from asking about an applicant’s wage history at any point during the hiring process. Philadelphia City Council unanimously voted in favor of the legislation in December 2016.

Introduced by Councilman-at-large William Greenlee, the Wage Equity Law is intended to reduce wage inequality, particularly among minorities and women. Companies often use a new hire’s prior salary as a baseline for setting the employee’s new compensation. By prohibiting companies from asking prospective employees how much they earned at their last jobs, the bill seeks to prevent unequal wages and salaries from following employees through their entire careers.

In addition to prohibiting employers from asking job applicants about their wage history, the ordinance prohibits employers from:
Continue Reading Philadelphia Employers Barred from Asking about Wage History

As a presidential candidate, Donald Trump voiced many opinions about his priorities and goals for the country. Yet as President-elect Trump prepares to take office in January, employers remain uncertain as to what the American workplace will look like under a Trump administration. As a lead-up to the presidential inauguration, we will provide a series of posts looking at five areas critical to employers and prognosticating as to how the new administration will impact these areas.
Continue Reading Employing Workers in a Trump Administration

In the past several weeks, Pokémon Go has taken the world, and many workplaces, by storm. If you’re concerned about reducing the negative impact that this game may be having on your employees’ productivity – and, more importantly, their safety – here are five steps you can take:

1. Make sure that your corporate policies for use of email, internet, and electronic devices are up to date. The policies should state the parameters and limitations regarding the use of these tools for personal matters. If your company allows for reasonable use of internet and personal email, the policy should state that an employee’s personal activity should not interfere with his or her job responsibilities. Ideally, a policy will also include a non-exhaustive list of sites, apps, games, and other programs that employees should not access at work. Examples, such as Pokémon Go, can also be listed. A specific social media policy that limits personal use of sites such as Facebook and Instagram should be included, as well. The policy should also limit personal use of mobile phones during work hours. In drafting or revising any policies, be sure that you take into account the recent decisions of the National Labor Relations Board (NLRB). These decisions strike down common personnel policies on the grounds that they could lead reasonable employees to believe they may face discipline for engaging in protected activity with or on behalf of one or more co-workers relating to employees’ wages, hours, or other terms or conditions of employment.Continue Reading Five Tips for Handling Pokémon Go in the Workplace

Effective January 1, 2018, Massachusetts’ equal pay law will impose new and broad sweeping requirements on employers. At its core, the law prohibits gender-based pay disparities. It also takes steps to encourage transparency regarding compensation among employees, and to reduce the emphasis on compensation inquiries during the hiring process. The recently enacted amendments are designed…