By Lisa Milam-Perez, J.D.
A case that could potentially have transformed the landscape for labor organizing has been dismissed by the Supreme Court as improvidently granted. At issue in UNITE HERE Local 355 v Mulhall (Dkt No 12-99) was whether a “neutrality agreement” between a labor union and an employer during an organizing drive is a “thing of value” and therefore illegal under Section 302 of the Labor-Management Relations Act. A Supreme Court affirmance of the Eleventh Circuit’s holding that neutrality agreements are unlawful under the statute’s antibribery provision would have drastically curtailed organized labor’s use of corporate campaigns (or “top down” organizing) as a favored strategy for growing its ranks. Justice Breyer dissented from the order of dismissal, joined by Justices Sotomayor and Kagan.
The issue before the High Court was significant. “The importance of neutrality agreements for union organizing cannot be overstated, attorneys J. Michael McGuire and Bryan M. O’Keefe, of the management firm Shawe Rosenthal, wrote in Employment Law Daily. “While the traditional ’secret ballot’ election was the preferred method of union organizing for much of the first 50 years of the NLRA, in the late 1980s and early 1990s labor unions shifted their focus to non-traditional means of organizing and obtaining voluntary recognition. After all, the secret ballot election process can be expensive and time-consuming; the union must first obtain signatures from at least 30 percent of employees to even trigger an election (and unions usually seek a much higher percentage before asking for a vote), followed by a usually acrimonious 42-day election period. Even if the union wins — and to this day unions win the majority of NLRB elections — litigation over various aspects of the election process can drag on for months or years. In the post-Reagan era, when unions were hemorrhaging money and members, this ‘bottom-up’ form of traditional organizing could not keep pace with labor’s continuing decline in membership.” Thus, organized labor turned to the “corporate campaign” model, seeking to secure an employer’s neutrality in the face of a union organizing drive, followed by a quicker “card-check” recognition.
So here’s the deal that troubled the employee-plaintiff—or, perhaps more accurately, the National Right to Work (NRTW) Legal Defense Foundation, which represented him: a casino entered into an agreement with UNITE HERE in which the employer agreed to remain neutral during the union’s organizing drive and also to provide access to the workers off-the-clock and turn over a list of their home addresses. The casino also agreed to card-check recognition, to refrain from filing unfair labor practices against the union, and to enter into arbitration if the parties failed to reach a bargaining agreement within 150 days. In exchange, the union would funnel $100,000 into a campaign for a local ballot initiative on casino gaming, and to refrain from striking if recognized as the employees’ bargaining representative. A divided Eleventh Circuit struck down the deal. While “employers and unions may set ground rules for an organizing campaign, even if the employer and union benefit from the agreement,” such ground rules can cross the line into a prohibited “thing of value,” the appeals court wrote.
The High Court heard oral argument in the case on November 13. As Justice Breyer noted, however, upon consideration of the briefs in the case and argument, it became apparent that the case may have been moot because the neutrality agreement at issue appears to have expired before the Eleventh Circuit issued its ruling; second, the sole plaintiff may have lacked standing. The dissent urged that the Court should simply request additional briefs on these two questions rather than dismiss the grant of certiorari. If in fact the federal courts lack jurisdiction, the appellate court’s decision should be vacated, Breyer argued, “thereby removing its precedential effect and leaving the merits question open to be resolved in a later case.”
Breyer also asserted that the Court should seek further briefing on yet another question: whether Sec. 302 authorizes a private right of action. “Long ago and in passing,” he noted, the Court held there is a private right to seek injunctions under Sec. 302(e), but “in light of the Court’s more restrictive views on private rights of action in recent decades,” this dictum stood on uncertain ground. If no private right of action exists, then courts will not need to resolve these difficult questions as to the scope of Sec. 302, “unless the Federal Government decides to prosecute such cases rather than limit its attention to cases that clearly fall within the statute’s core antibribery purpose.”
Federal courts — including the Third and Fourth Circuits — have consistently rejected the notion that neutrality agreements are a “thing of value” under Sec. 302. The Eleventh Circuit’s 2012 holding created a circuit split.
“Unless resolved,” Breyer continued, the split threatens to impede collective bargaining. “The Eleventh Circuit’s decision raises the specter that an employer or union official could be found guilty of a crime that carries a 5-year maximum sentence if the employer or union official is found to have made certain commonplace organizing assistance agreements with the intent to ‘corrupt’ or ‘extort.’ In my view, given the importance of the question presented to the collective-bargaining process, further briefing, rather than dismissal, is the better course of action.”
As of now, though, the circuit court’s holding stands. Celebrating the organization’s win in the wake of the Supreme Court’s order, NRTW president Mark Mix cautioned, “Union bosses and employers who use workers’ rights as a bargaining chip will now enter into these agreements at their own risk.” In the Eleventh Circuit, at least.
Recently, the U.S. Supreme Court agreed to hear two major cases involving disputes over insurance coverage for contraceptives mandated by the Patient Protection and Affordable Care Act (ACA). The two cases, Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties v. Sebelius are both suits where corporate employers are requesting an exemption from the ACA mandate to provide contraceptive coverage to their employees on the basis of religious objection by the owners.
The government’s petition for writ of certiorari in Hobby Lobby poses the question whether the Religious Freedom Restoration Act allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners.
The players before the Supreme Court
Hobby Lobby. In the Hobby Lobby case, the companies are Hobby Lobby, a craft store chain, and Mardel, a Christian bookstore chain. Their owners, the Greens, run both companies as closely held family businesses according to what they describe as Christian principles. Hobby Lobby, a closely held family business organized as an S-corp, is an arts and crafts chain with over 500 stores and about 13,000 full-time employees. Mardel is an affiliated chain of 35 Christian bookstores with just under 400 employees, also run on a for-profit basis.
The Greens objected to the ACA requirement to provide certain contraceptive services as a part of their employer-sponsored health care plan, specifically drugs and devices that they believe to be abortifacients. (Note that abortion coverage itself is not required.) Media reports are that the Greens are Baptists, an evangelical Christian denomination. The Greens allege that the contraceptive mandate violates the Free Exercise Clause of the First Amendment, as well as the Religious Freedom Restoration Act (RFRA), which states that the government “shall not substantially burden a person’s exercise of religion” unless it is the least restrictive means to further a compelling government interest. The Tenth Circuit ruled that for-profit corporations could deny contraceptive coverage to employees, even if otherwise entitled by federal law, on the basis of religious objections by the individuals controlling the corporation.
Conestoga Wood Specialties. Conestoga Wood Specialties, a secular, for-profit corporation, was denied an injunction preventing enforcement of the contraceptive mandate. The Hahns, a Mennonite family, objected to two types of contraceptives as well. The Hahns own 100 percent of the voting shares of Conestoga, which is a Pennsylvania for-profit corporation that manufactures wood cabinets and has 950 employees. As Mennonites, the Hahns say their church teaches that taking of life, which includes anything that terminates a fertilized embryo, is intrinsic evil and a sin against God to which they are held accountable. According to the Mennonite.net website, pacifism is one of the cornerstones of the Mennonite faith, prompting many young Mennonites to elect service to the church rather than military service.
In its decision, the Third Circuit stated that the Free Exercise Clause protects religious freedom of individuals from government interference. However, secular corporations, which do not pray, worship, observe sacraments, or engage in other religious activity, are not entitled to Free Exercise Clause protection, and the rights of the owners do not pass through to the corporation. Conestoga petitioned for certiorari.
Corporations not protected. Autocam Corp. v Sebelius involved similar RFRA and free exercise arguments against the contraceptive coverage requirement. Autocam Corporation and Autocam Medical, LLC, are for-profit, secular corporations engaged in high-volume manufacturing for the automotive and medical industries. Members of the Kennedy family, all of whom are practicing Roman Catholics, own “a controlling interest” in the two corporate entities, which have 1,500 employees worldwide, including 661 in the U.S. The Kennedys believe that they cannot direct their closely held company’s health insurance plan to “provide, fund, or participate in health care insurance that covers artificial contraception, including abortifacient contraception, sterilization, and related education and counseling.” They object that under ACA, Autocam’s health plan would have “to directly pay for the purchase of drugs and services” that the Kennedys find objectionable.
The Sixth Circuit found in the Autocam case that if the free exercise clause were expanded to cover corporations as if they were persons, it would “lead to a significant expansion of the scope of the rights the Free Exercise Clause [previously] protected.” The RFRA claims raised by Autocam’s owners were also dismissed for lack of standing because of a longstanding rule barring claims by shareholders “intended to redress injuries to a corporation.”
Generally, shareholders of a corporation cannot bring claims intended to redress injuries to a corporation, even when the corporation is closely held. This shareholder standing rule prevented the Kennedys from bringing a RFRA claim arising from a legal obligation on Autocam. The Kennedys’ actions with respect to Autocam were not actions taken in an individual capacity, but as officers and directors of the corporation, said the court. The decision to comply with the mandate falls on Autocam, not the Kennedys, the court concluded.
S-corp owners’ rights infringed. In Gilardi v Department of Health and Human Services, a divided D.C. Circuit ruled that the ACA requirement that most health plans cover FDA-approved contraceptives infringed the rights of two owners of Subchapter S corporations under RFRA. Although the court did not go so far as to rule that secular, for-profit corporations have a right to free exercise of religion, it did find that the connection between the Gilardis’ payment for health insurance coverage and the use of the premiums to cover contraceptive services was direct enough to infringe on their individual rights under RFRA and the Free Exercise Clause of the First Amendment. It affirmed the district court’s denial of a preliminary injunction with respect to the companies, however.
The Gilardi brothers owned two businesses that provide fresh-cut and repack produce solutions and services. Because they operated as S corporations for tax purposes, the two companies paid no income tax; the income and tax obligations were passed through to them as individuals. They alleged that as practicing Catholics, they felt a moral obligation to provide health insurance for their 400 employees but had never covered contraception, sterilization, or abortion under their self-insured plan, and they claimed that the mandate to cover contraceptives violated the rights of both the individuals and the corporations under the RFRA, the Freedom of Speech and Free Exercise Clauses of the First Amendment.
The court reasoned that closely held, Subchapter S corporations are distinguished from larger, publicly held entities because the income is attributed to the individual owners, who pay the taxes. Further, the burden on the owners did not occur when the employees purchased contraceptives but when the employers were compelled to pay for the benefits to be covered under the health plan.
Similarly, in Korte v Sebelius, the Seventh Circuit ruled that the contraceptive coverage requirement violates the rights of both individual business owners and closely held business corporations under RFRA. The relationship between the prohibited conduct and the owners’ Catholic religion was direct because it was their financial contribution that supported contraception that violated their religious beliefs, not the employees’ choice to use the benefits.
The plaintiffs here were two closely held business corporations and the Catholic families who own them. The Kortes own and operate a construction company with approximately 90 full-time employees, 70 of whom belong to a union that sponsors their health-insurance plan. The company provides a health-care plan for the remaining 20 or so. The Grote family owns and manages Grote Industries, Inc., a manufacturer of vehicle safety systems with 1,148 full-time employees at various locations, including 464 in the U.S. The members of both families are Catholic and they follow Catholic moral teaching regarding the sanctity of human life and the wrongfulness of abortion, abortifacient drugs, artificial contraception, and sterilization.
To find that commercial corporations could engage in religious activity, the court reasoned that RFRA contains findings that its purpose was to restore the interpretation of the Free Exercise Clause under certain cases, including a couple of cases that involved individuals and their jobs. These cases protected conduct and the employee’s livelihood, or profit-making activity, said the court, extrapolating that the conduct of secular, for-profit corporations also was protected by RFRA.
Law of unintended consequences
These cases involve a craft store chain, a wood cabinet manufacturer, an automotive and medical industries manufacturer, a produce company, a construction company, a manufacturer of vehicle safety systems, and a Christian bookstore. Which corporate entity on its face seems capable of exercising religious beliefs and practices? Which one seems not like the others? Or is the similarity among these entities, and their practices, really based on the beliefs and behaviors of the individuals behind them?
The decision whether facially secular for-profit corporations, which have a primary purpose that is not obviously religious in nature, should be protected by either RFRA or the Free Exercise Clause could have profound and far-reaching consequences well beyond the contraception cases the Court is considering.
For example, what if the Catholic or evangelical Christian individuals whose religious beliefs were being exercised through a corporate form, albeit closely held, felt their beliefs compelled them to reject other mandated prescription drug coverage, say, for unmarried or divorced men who wanted to treat erectile dysfunction, given that recognized church teachings reject sexual conduct outside of marriage?
What if individual Scientologists, whose sincerely held religious beliefs include rejection of psychotropic drugs specifically, and the principle that psychiatric disorders can have physical roots generally, owned a closely held corporation and objected to providing coverage for antidepressants? After all, the ACA significantly extends the reach of the Mental Health Parity and Addiction Equity Act’s requirement that insurance coverage for mental health or substance use disorders must provide the same level of benefits as for general medical treatment. Starting in 2014, the ACA will require all small group and individual market plans created before March 23, 2010, to comply with federal parity requirements.
The Court has had enough difficulty balancing the Establishment and Free Exercise Clause with respect to individuals’ religious beliefs. Applying RFRA and Free Exercise protections to for-profit corporations could take us somewhere we don’t really want to go.
In a 2012 survey, 69 percent of the respondents ranked potential for or suspicion of employee abuse as their top concern in administering FMLA leave, particularly intermittent leave. While it may be only a small number of employees who take advantage of family and medical leave, the costs of FMLA abuse, which include the cost of replacement workers, overtime, lost productivity, lost business, and overworked staff, can add up.
The tale of two Bells: Ohio Bell
What can you do if you believe an employee is abusing FMLA leave? Two recent cases provide some guidance. In the first, an employee with chronic back pain who took intermittent FMLA leave for more than two years, and who was fired after his employer became suspicious of the patterns in the timing of his leave requests, could not advance FMLA interference and retaliation claims. In an unpublished opinion, the Sixth Circuit found summary judgment was warranted as to his FMLA retaliation claim because he failed to refute his employer’s “honest belief” that he abused FMLA leave and violated its code of conduct.
Suspicious leave usage. The Ohio Bell telecommunications specialist began taking intermittent FMLA leave in 2006. In 2008, his supervisors noticed that his leave days routinely fell on Fridays and weekends and that he often requested FMLA leave days in advance.
Investigation. Suspecting misuse of FMLA leave, his supervisor contacted HR, which recommended an investigation. The FMLA manager agreed that the employee’s FMLA use was suspicious and turned the matter over to the company’s asset protection department for investigation, which hired a private investigation firm to conduct surveillance of the employee during his FMLA leave.
Outside consultant. On two separate days of leave, the employee was videotaped working in his yard and garage, driving his family around, and conducting personal errands. Ohio Bell provided the surveillance report and video to an outside medical consultant for review. Finding that the employee’s activities on the videotaped days were inconsistent with the physical behaviors typical of someone with incapacitating back pain, the consultant suggested that he was not incapacitated from performing his work duties on those dates.
Hearing and termination. Six days later, the investigator questioned the employee regarding his FMLA usage. He was unable to recall his activities on those days but suggested that he may have received a Cortisone shot or have been under the influence of prescription painkillers and thus unable to operate a company vehicle. As a result of the investigation, his requests for FMLA leave on the two days in question were denied and, after the investigation’s findings were reported to management, it was recommended that he be terminated. After a hearing by the dismissal review board, the employee was fired for violating the company’s code of business conduct, which prohibited fraudulent or illegal conduct.
Honest belief. Finding that the “honest belief” rule protected Ohio Bell’s discharge decision, the appeals court pointed out that, to reach its termination decision, the company relied on the investigation report and the surveillance tapes of his activities; his interview statements; the medical consultant’s report; the employee’s email to his supervisor indicating he would take FMLA leave on a certain day if he was assigned to the night shift; and his pattern of using leave on weekends or combined with his days off and holidays.
It was also entirely proper for Ohio Bell to consider its medical consultant’s report in forming its honest belief. She reviewed the video footage, the employee’s job description, and his FMLA certification to conclude that his activities on the two days in question were inconsistent with the actions of someone with incapacitating back pain. Although the employee argued that she should have talked to his physician and inquired about the specific weight of the objects she observed him carrying in the video, Ohio Bell was not required to show that its investigation was “optimal or that it left no stone unturned.” In sum, Ohio Bell made a reasonably informed and considered decision based upon the particularized facts before it at the time.
In a case decided just a week earlier, a federal district court in Wisconsin found that an employer that tracked an employee’s suspicious pattern of leave use for more than six months prior to hiring a private investigator to document her activities had an “honest suspicion” that she misused her leave and failed to cooperate with its investigation. Here, a telecommunications specialist for Wisconsin Bell began using FMLA leave in 2004. In 2008, her supervisor became suspicious of her leave use after the employee asked when her annual leave allotment would replenish. The employee stopped calling in sick when she used her entire FMLA annual allotment; however, she resumed calling in and requesting FMLA coverage for her absences after her annual allotment was replenished.
Suspicious leave usage. As in the case of the Ohio Bell employee, after tracking the specialist’s leave, the supervisor discovered that she requested leave on Saturdays as well as days immediately prior to or following her scheduled days off. He also noticed that she did not call in sick on days she was scheduled to work a shift paying a premium wage differential. Believing that she was trying to maximize her days off, the supervisor requested an investigation.
Investigation then termination. Like Ohio Bell, Wisconsin Bell contacted a private investigator who followed the employee to a church on a day she requested leave. He also observed her driving to out-of-town locations. In addition, the supervisor discovered a blog posting that appeared to be written by the employee indicating she was taking classes at the church on Saturdays. Though the employee denied any affiliation with the church, the company’s labor relations manager called the pastor, who confirmed that she had been attending a class there on Saturdays. After checking the FMLA tracker and discovering that the employee took FMLA leave on six straight Saturdays, the supervisor terminated the employee.
Honest suspicion. Here, the court found that Wisconsin Bell had an “honest suspicion” the employee misused her FMLA leave as well as an honest suspicion she violated its code of business conduct by failing to cooperate with the company’s investigation. Moreover, violating the code was itself a legitimate, nondiscriminatory ground for termination. Specifically, the employee failed to disclose that she was taking classes at the church on Saturdays and denied going out of town on the day she was on FMLA leave. After reading the employee’s blog and talking to the pastor, the employer had a factual basis for concluding that she failed to cooperate with its investigation. These facts defeated her FMLA claims.
Employer’s honest belief is question for the jury
In a case emphasizing the importance of an impartial investigation, a federal district court in Michigan found that fact questions existed as to whether an employer had an honest belief that its employee engaged in misconduct when it decided to fire her upon her return from FMLA leave. The employee asked for six weeks of FMLA leave to undergo a hysterectomy. In response, he allegedly asked her whether she could return to work earlier or postpone her surgery. Within days of receiving her leave documents, he began counseling her on her performance.
A week later, she sent her supervisor an email discussing an upcoming training session she was going to provide to the management team at a retail store that fell under her purview. She attended the training and also attended the store’s afternoon golf outing, which the supervisor purportedly told her not to attend. When he found out about the outing, he requested an investigation into her conduct. At the conclusion of the investigation, he decided to terminate her. The next day, she began her FMLA leave. While she was on leave, she was advised she was going to be terminated. She returned to work at the end of her leave and was terminated two days later.
Here, the employer argued that even if there was a question of fact as to motive, the honest belief rule rendered the termination decision “unassailable” because the employer honestly believed, after conducting an investigation, that the reason she was terminated was her misconduct. However, because her supervisor was the individual who filed the complaint against her, provided the investigator with the background information, participated in the investigation, and made the final termination decision, a fact question existed as to whether the honest belief rule applied. Thus, the issue of motive could only be decided at trial.
What can an employer do to combat leave abuse? Training managers to be aware of patterns of suspicious leave usage can be helpful, but thorough documentation of all leave taken can help support personnel decisions and substantiate actions taken.
- Document. Keep records of all time off from work, including the dates that leave is taken, the hours of leave taken, copies of employee notices of leave, copies of all notices given to employees concerning family and medical leave, and any records of any disputes regarding the leave.
- Train managers. Managers should be well versed in their company’s leave policies and as well as with company call-in procedures.
- Investigate thoroughly. Finally, carefully and thoroughly investigate suspected leave abuse. The cases above illustrate the need for an impartial investigator. A properly conducted investigation can be good support for employment decisions.
- Use surveillance with caution. While surveillance of the employees suspected of leave abuse has been upheld by some courts, it is important to keep in mind that this may raise other issues, however, such as privacy concerns and disparate treatment.
Lorene D. Park, J.D.
The “goal of Title VII and the ADA is to make the plaintiff whole, i.e., put the plaintiff in the same position he would have been absent discrimination.” In the view of a federal district court in Ohio, that means that if an employer’s discrimination forces an employee to find a new job, relocation expenses incurred to obtain comparable employment may reasonably be considered to have arisen from the discrimination — including “any loss that occurred because the employee was compelled to sell his home under unfavorable market conditions.” Thus, in response to the employer’s motion in limine on the issue, the court agreed that it would hear oral argument on whether to present the issue to a jury (Hounshel v Battelle Energy Alliance, November 18, 2013).
In this case, a nuclear engineer alleged that, after he questioned a supervisor’s unethical behavior, he was put on a performance improvement plan and ordered to seek counseling for anger management. Though he claimed he had no performance or anger issues, he was placed on administrative leave due to allegedly false claims by his supervisor. He was also required to undergo a psychological evaluation. When he returned to work he was sequestered from his coworkers, denied training, and treated with suspicion. He claimed that, as a result, he was constructively discharged and forced to take a job out of state. He filed suit against his former employer seeking, among other things, compensatory damages for having to sell his house in a bad economy. After a year on the market, his house sold for $119,000; he owed nearly $160,000 on his mortgage at the time. He claimed that, had he not been constructively discharged, he would have remained in the home and not suffered such a loss.
Issues regarding proof. The court noted that the employee faced a problem of proof because the loss on the sale of his house could have more to do with his personal financial choices than his forced relocation. However, it saw two possible approaches he might take. First, he could argue that because he never intended to move, the measure of damages would be the difference between the sale price and what the home would have been worth had he stayed. However, the problem with that approach was he did not identify an expert to testify about the home’s current value and, because he no longer owned the property, he could not offer an opinion.
Alternatively, the employee could argue that after waiting for nearly a year, he was forced to sell for less than fair market value (FMV). Thus, the measure of damages would be the difference in sale price from FMV. While generally the employee or his wife could testify on FMV, they had not indicated they would do so in discovery so the court was not yet willing to let them do so. It did, however, aver that it would hear oral argument on the issue. The court stated that, if it allowed either the employee or his wife to testify, it would instruct the jury that an actual sale between a willing buyer and a willing seller is strong evidence of FMV.
Problems with such damages. The statutory goals of placing an employee in the same position (at least financially) that he would have been absent discrimination are laudable to be sure. But I see a few problems with reimbursing a purported loss due to selling a house in a bad economy. First, as noted by the court, the loss sustained by the employee might be due to his personal financial choices, not the employer’s actions. Plus, the measure of damages seems speculative because there is the possibility that he might not have stayed in the house regardless of whether he stayed with the employer. Or, the market might actually continue to get worse, so an award based on present FMV could be a windfall for the employee because he would actually have come out worse selling later on. There is also the question of whether the tactics used by the employee in marketing his house had something to do with the lower than desired sales price. Employees must mitigate damages for the loss of future pay in discrimination cases by making diligent efforts to find a new job. One would think a similar duty would apply in marketing a house for sale. It will be interesting to see how the court ultimately rules on this damages issue.
By David Stephanides, J.D.
BYOD? “It’s liability on steroids!,” remarked Adam Forman of the law firm Miller Canfield during an enlightening, or perhaps alarming, program entitled “eWorkplace: Privacy, Access & Security in the Era of ‘The Cloud,’ Social Media and BYOD” at the National Employment Law Institute’s 2013 Employment Law Conference held November 14-15 in Chicago. BYOD, or “Bring Your Own Device,” policies are rapidly being adopted across the United States, with over 50 percent of employers permitting employees to access work-related material via their own mobile devices. With the adoption of these policies, however, comes a variety of risks generally overlooked in an employer’s drive to remain competitive among its peers. You may have even asked yourself what happens to the device and information when employment ends? Does an employer have the ability to remotely “wipe” the device? And does an employee have a duty to notify the employer if the device is lost or stolen?
Forman advised that these risks can generally be divided into two categories: control of employer data; and compliance with employment and labor laws.
Control of employer data. Though the risks associated with permitting employees to access employer information via a mobile device is not a new concern, BYOD brings those risks to new heights. For instance, BYOD can facilitate the theft of employer information by employees themselves, seamlessly allowing employees access to employer information and personal information on the same device. In addition to raising information security concerns for an employer or civil/criminal liability for an employee, it also raises misappropriation concerns for employers who hire s competitor’s employees.
BYOD can also expose an employer’s information to more people, even if the device is not lost or stolen. Consider, said Forman, the ease with which an employee may provide access to his or her mobile device to a friend, often after having satisfied security measures intended to keep nonemployees out.
Because personal mobile devices cannot be totally controlled by the employer, BYOD increases the risk that the mobile device will be “hacked” or exposed to viruses or malware. A 2011 study from the Ponemon Institute illustrates this risk, finding that 23 percent of all information losses resulted from hacking, 21 percent from web-based application or file sharing sites, and 13 percent from unsecured mobile devices. By accessing websites, file sharing programs, or downloading applications for their own personal use, employees may unknowingly and unintentionally expose the employer’s information to third-parties.
Information security breaches can result in significant legal liability. Forman noted that several state and federal laws require companies to take affirmative steps to protect an individual’s personal information — like health information and social security and credit card numbers — and impose penalties upon companies for failing to maintain of the security of information regarding its customers, clients, and/or employees. Other laws mandate that companies notify individuals when their personal information has been compromised.
The litigation hold problem. BYOD also implicates an employer’s recordkeeping and discovery obligations under numerous federal and state court rules. To the former, several state and federal laws require employers to either preserve or destroy certain electronic records. As to the latter, employers are obligated to both preserve and produce electronic documents, and failing to do so can lead to court imposed sanctions. Forman noted that though no court has addressed either of these two issues head on, it is likely that one will do so in light of the explosion of BYOD.
Compliance with labor employment laws. Though no court has expressly addressed the issue of the relationship between BYOD and an employer’s obligations to prevent hostile work environments, it is possible that allowing employees to use their personal devices at work could facilitate such claims, advised Forman. In short, employees may see the use of personal devices as separate from work, and thus use the device to send or post messages that constitute sexual or racial harassment. Whether or not an employer is ultimately liable under a hostile work environment theory depends upon several factors — including the identity of the alleged harasser and the steps the employer took to remedy the harassment — but it is likely that as technology blurs the line between personal and professional lives, employers will see an uptick in such claims.
For unionized employers, BYOD can expose an employer to significant obligations or liability under state and federal labor laws. First, depending upon an employer’s collective bargaining agreement, it is likely that implementing a BYOD policy is a mandatory subject of bargaining. An employer may also need to bargain over the effects of using mobile devices as it relates to how employees perform their job duties. It is also possible that BYOD implicates surveillance/monitoring issues.
Perhaps the gravest area of concern centers on compliance with wage and hour laws. The primary risk is that BYOD fosters an environment in which nonexempt employees might work during nonworking time. Unfortunately, Forman noted, there is scant guidance from the courts or the Department of Labor as to whether the time spent by nonexempt employees accessing work information on their personal device, such as reading or responding to email sent to their company email address on a mobile device, constitutes hours worked for the purposes of the FLSA. Forman emphasized that there are, however, three compelling reasons why an employer should treat such time as compensable work time.
First, time spent doing work not requested by the employer, but still allowed, is generally hours worked, where the employer knows or has reason to believe that the employees are continuing to work and the employer is benefiting from the work being done. Second, it is likely that by accessing an employer’s network, nonexempt employees could engage in activity that is “integral and indispensable” to their everyday on-the-clock “principal activities” which would thus be compensable as “preliminary” or “postliminary” activities. Lastly, though a minute here or there checking email might be considered de minimus and not compensable, spending a substantial amount of time on after-hours emails, in excess of a few minutes, may be considered compensable.
Though risky, Forman advised that if employers do allow nonexempt employees to BYOD, they should develop a policy with some of the following considerations:
- Limit the nonexempt classifications that are provided access, thus limiting potential exposure to liability.
- Prohibit nonexempt employees from accessing the employer’s network during non-work hours without prior permission (e.g., they are just allowed to check email during work hours but away from their computer).
- Require employees to record all time spent accessing the employer’s network during non-work hours.
- If possible, turn off access to the employer’s network during non-work hours. For example, Volkswagen recently implemented a system that kept its servers from routing messages to Blackberries starting 30 minutes after each shift and ending 30 minutes before the start of the next shift.
- Train supervisors to not expect or demand that nonexempt employees access the network or check email during non-work hours.
- Enforce the policy by monitoring usage or employing technological solutions to rule out such usage.
- Impose consequences for violations of the policy, while compensating the employee for actual time worked (paying overtime where required).
In sum, BYOD raises a variety of concerns for employers, most of which have not yet been directly addressed by the courts. Accordingly, Forman emphasized that employers should tread cautiously as they institute such policies.