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Social media and employment law—are courts catching up?

May 14th, 2015  |  Lorene Park  |  Add a Comment

By Lorene D. Park, J.D.

Remember back when the two biggest employment law issues involving social media were “ownership” of accounts and a backlash against requesting access to job applicants’ personal profiles? Times have changed, and legal issues have multiplied. But much like the older generation catches up with teenagers who readily adapt to rapidly changing technology, courts are developing precedent that shows a better understanding of how allegations involving the use of social media fit within long-standing law on trade secrets, labor relations, First Amendment rights, discrimination laws, and more. Below are a few emerging issues and court responses.

Discrimination, harassment, and retaliation. Many employment cases involve allegations of social media being used as a vehicle for harassing a coworker or other individual, and employers can be found liable. Facebook and other posts may also be evidence of unlawful intent:

  • Comments lamenting that a “f*cking indian” was made department chair and other racist Facebook posts by two professors who were allowed to vote on an employee’s tenure (which was denied) evidenced hostility that was prevalent in the department, a federal court in Oklahoma found, denying summary judgment on a hostile work environment claim. The employee’s retaliation claim also advanced, partly because the Facebook posts provided a causal link between the denial of tenure and his prior complaints of race discrimination (Hannah v. Northeastern State University).
  • A food service director, who complained that graphic sexual images of her drawn on a bathroom wall had been a topic social network sharing for a month and who lost her job soon after complaining, will take her sexual harassment and retaliation claims to a jury. The court found it significant that the supervisor knew workers were passing around cell phones to view the posts but blew off the employee’s complaints. The fact that the drawings were shared on Facebook during work also supported a finding that the alleged harassment was severe enough to create a hostile environment (Meng v. Aramark Corp.).
  • A court found a triable issue on whether a male EMT was fired in retaliation for reporting sexual harassment by a male coworker or because he refused to sign a letter agreeing to attend anger management after he wrote Facebook posts (the same day the coworker touched him near his crotch) threatening “the mother f***er who thought today was a joke” and stating he would “knock [that individual’s] f***ing teeth out, break [his or her] jaw [and] every bone in [his or her] left arm.” The employee claimed he told HR he was willing to do the training but refused to sign the letter because it purported to exonerate the company for the harassment (Verga v. Emergency Ambulance Service, Inc.).

Labor relations. Facebook, Twitter, and other social media comments can be protected concerted activity or union activity under the NLRA. An NLRB fact sheet explained that in 2010, the Board started receiving charges in regional offices about employer social media policies and specific instances of discipline for postings. In some cases, the agency has found that the communications were protected and that there was reasonable cause to believe an employer’s policies or disciplinary actions violated federal labor law. For example:

  • Although a car dealership cooperated with the NRLB in an investigation over its 2010 handbook provisions on social media, gave the NLRB proposed revisions, and issued a new 2013 handbook after the agency’s review, the Board, in a 2-1 decision found that publication of the new handbook did not effectively repudiate the offending provisions. Merely revising unlawful rules did not remedy unfair labor practices, absent notice to the affected employees that violations occurred and would not be repeated. The overbroad 2010 social media policy prohibited employees from disclosing information about employees or customers; required them to identify themselves when posting comments about the dealership; prohibited them from referring to it in a way that would negatively impact its reputation; prohibited any conduct that even had “the potential to have a negative effect” on the dealership; and allowed the dealership to request access to anything they posted on social media (Boch Imports, Inc. dba Boch Honda).
  • An employer violated NLRA Sec. 8(a)(3) by firing an employee for venting frustration with a manager by posting profanity-filled Facebook comments, ruled a three-member panel of the NLRB. The posting, which was protected and concerted activity, called the manager a “NASTY MOTHER F*CKER” and a “LOSER,” and ended with “Vote YES for the UNION!!!!!!!” His post was visible to Facebook “friends,” including some coworkers. The panel noted that he posted his comments while on break, there was no evidence they interrupted the work environment or relationship with customers, and the comments echoed employees’ prior complaints of disrespectful treatment of employees and encouraged employees to vote for union representation. Disagreeing with Member Johnson’s partial dissent, the majority did not view the use of profanity to be qualitatively different from other profanity regularly tolerated by the employer (Pier Sixty, LLC).
  • The D.C. Circuit refused to hold a union liable for failing to remove derisive and allegedly threatening comments on a Facebook page maintained for union members. Denying a non-union employee’s petition for review of the NLRB order dismissing his charge, the appeals court found it significant that there was no indication that union officials or agents posted the comments and only union members could post or view comments on the page. It declined to address whether the postings would be deemed “threatening” if made by union agents and emphasized that the Board was not foreclosed from ever finding a union guilty of unfair labor practices for postings on “closed” Internet sites (Weigand v. NLRB).

Background checks. Back when employers first started viewing the social media accounts of job applicants as a means of evaluating whether they would make good employees, legal experts cautioned that employers might learn information (such as religion, race, or disability) that could form a basis for a claim that they made employment decisions on prohibited bases. Although that remains a concern, other issues have arisen on the use of social media to evaluate applicants or employees.

For example, a federal court in California dismissed a putative class action under the Fair Credit Reporting Act (FCRA) by LinkedIn users who were allegedly rejected from employment after potential employers contacted individuals identified through LinkedIn’s Reference Search Function. The court explained in detail why search results did not constitute a “consumer report.” Among other reasons, the information was derived solely from LinkedIn’s transactions with the plaintiffs and not from third parties, LinkedIn was not a “consumer reporting agency” under the Act, and the list of possible references was not, itself, used or intended to be used for employment purposes (Sweet v. LinkedIn Corp.).

Class Action notice. Interestingly, social media may be considered by some courts to be an effective means of providing notice to potential class members in class actions. In an ongoing class action wage suit by Gawker Media interns, a federal court in New York granted the plaintiffs’ renewed (and revised) bid for approval of a plan to disseminate notice to potential opt-in plaintiffs via social media. The court had rejected their initial notice plan, concluding that it was overbroad and seemed bent on publicizing Gawker’s alleged wage infractions rather than targeting prospective class members. The court was satisfied that these defects were cured but told the plaintiffs they may not “friend” potential opt-ins on Facebook, and must “unfollow” from Twitter those who don’t join during the opt-in period (Mark v. Gawker Media, LLC).

Evidence, discovery issues. Facebook posts are fair game when it comes to discovery, much to the chagrin of individuals whose posts contradict claims they later make in litigation.

  • A federal court in Louisiana ordered an employee to produce an unredacted copy of his entire Facebook page, finding that his argument that he had deactivated his Facebook account was not persuasive—that was not the same as deleting it, and it was clear from other evidence that he knew how to reactivate his account. Moreover, the employer was entitled to analyze his Facebook messages, particularly given evidence that he messaged a coworker that he injured himself fishing, rather than in a workplace accident on the employer’s vessel, as he had alleged (Crowe v. Marquette Transportation).
  • In the ongoing saga of human-trafficking-related claims against Signal International, which has been accused of trafficking over 500 Indian guestworkers to the U.S. after Hurricane Katrina, a federal court in Louisiana ruled that Signal may not use a previously undisclosed Facebook picture of one plaintiff and his assumed wife as impeachment evidence. Though the picture purportedly conflicted with his deposition testimony that he had not seen his family in over seven years, whether he saw his family was relevant to damages and as such, was substantive. Regardless of its impeachment value, it should have been disclosed to opposing counsel and listed in the proposed pre-trial order; since it was not, it could not be used at trial (David v. Signal International, LLC).
  • In an ADA discrimination suit by the EEOC, Bank of America was denied a motion to compel production of all texts, emails, and social media posts by the complaining employee since 1998. Although discovery of the employee’s ability to communicate in writing was a central issue in the case, the request was overly broad (EEOC v. Bank of America).

Trade secrets. Social media contacts and control of groups linking professionals together based on a common interest can be considered trade secrets:

  • A former employee’s refusal to cede control of a professional LinkedIn group with a membership restricted to 679 of the employer’s current and potential customers supported his former employer’s breach of noncompete, Illinois Trade Secrets Act, and common law misappropriation claims, all of which survived his motion to dismiss. The federal court in Illinois noted that the names of group members would be “extremely valuable” information to competitors (CDM Media USA, Inc. v. Simms).
  • Fact disputes on whether an employee misappropriated trade secrets by maintaining LinkedIn contacts with a company’s clients after his termination precluded summary judgment on his former employer’s claim under California law. Although he argued that LinkedIn contacts do not constitute a trade secret because the employer encouraged employees to use LinkedIn, and because his contacts were viewable by any other contact, the court refused to take judicial notice of LinkedIn’s functions and concluded that a fact issue remained (Cellular Accessories For Less, Inc. v. Trinitas LLC).
  • An employer’s claims that its roster of employees who are touchscreen technology specialists was a trade secret misappropriated by a competitor in its effort to poach the employees was made in bad faith, considering the names of the specialists were obtained from publicly available sources, including LinkedIn. The employer was ordered by a California court to pay the competitor $180,000 in attorneys’ fees (Cypress Semiconductor Corporation v. Maxim Integrated Products, Inc.).

First Amendment cases. Social media posts are considered public speech, and in some cases even clicking “like” in response to someone else has been considered speech. Whether First Amendment protections apply, however, depends on the circumstances of each case.

  • An EMT/medical helicopter pilot, who repeatedly reported a lack of required federal certification of a Medstar helicopter to his employer before going to the FAA and social media, survived a motion to dismiss his First Amendment retaliation claim based on his termination. His speech was not part of his regular duties, addressed a public concern, and a federal court in Florida found no legitimate government interest in disciplining an employee for disclosing malfeasance, especially where he gave the county a chance to address the issues before going public (McAllister v. Lee County).
  • Only one of two police officers disciplined for an off-duty Facebook conversation about rookie cops in leadership positions was protected by the First Amendment. The federal court in Virginia found it significant that there was no showing that his comments created a “reasonable prediction of harm” to police operations. But the police chief was protected by qualified immunity since reasonable officials in his position would not know that disciplining an officer for a Facebook post under department policy would violate constitutional rights. The city was not liable because it never ratified the social networking policy (Liverman v. City of Petersburg).
  • A fired assistant attorney general did not engage in protected speech when he embarked on an online and televised crusade against a gay student affairs president, ruled a Michigan appeals court. His interest was outweighed by the employer’s interest, and the First Amendment did not require the Attorney General to “sit idly by” while he insulted those he was hired to serve and protect (Shirvell v. Department of Attorney General).
  • Finding that a police officer’s “hot-headed” Facebook posts criticizing the police chief’s leadership for failing to send a patrol car to a fallen officer’s funeral were made as a citizen, and perhaps stemmed from a “genuine desire to inform the community,” the Fifth Circuit refused to allow the “‘mere insertion of a scintilla of speech regarding a matter of public concern’ to ‘plant the seed of a constitutional case.’” Further, the department’s interests in maintaining discipline and preventing insubordination outweighed the officer’s First Amendment interest here (Graziosi v. City of Greenville Mississippi).

Other claims. Social media can be part and parcel of traditional harassment and discrimination claims, but cyber-harassment also can be a stand-alone claim in some cases. In addition, social media posts can be cause for a court to impose remedial measures to prevent abusive litigation tactics or to protect individuals’ privacy rights.

  • A California Court of Appeals upheld a restraining order against a CVS manager who allegedly cyber-harassed a former coworker by going through his girlfriend’s Instagram account and posting the coworker’s LinkedIn Profile along with disparaging remarks like “#kickedout” and “#joblessbitch.” The circumstantial evidence amply established that the former coworker was humiliated by the posting and reasonably worried about the impact on her professional reputation (Kwan v. Murcia).
  • A federal court in North Carolina found good cause existed to modify a protective order to require the removal of YouTube videos depicting the deposition of a corporate witness, along with commentary mocking her, which were posted by an employee over a year and a half after her employment discrimination suit was dismissed. Such public mockery implicated reputational and privacy interests of litigants and third parties. The court rejected the employee’s jurisdictional and First Amendment challenges (Springs v. Ally Financial, Inc. fka GMAC, Inc.).
  • Evidence that an employer suspended, fired, and then sued an employee for defamation because she spoke to the media, was featured on Facebook by the media, and complained to OSHA about workplace exposure to chemicals linked to breathing problems suggested to a federal court in Alabama that the Secretary of Labor was likely to succeed on a retaliation claim filed on the employee’s behalf under the OSH Act. The court enjoined the employer from taking adverse actions against employees who exercise rights under the Act (Perez v. Lear Corporation Eeds and Interiors).

State legislatures are also catching up. While courts are in the trenches dealing with individual disputes over the use and control of social media accounts, legislators have been busy crafting laws that also address emerging issues—though these mainly focus on the privacy rights of employees and job applicants. According to the National Conference of State Legislatures, as of April 14, 2015, legislation restricting employers from requesting passwords to personal Internet accounts and otherwise addressing social media have been introduced or considered in at least 22 states in 2015. For example, Virginia recently enacted a social media privacy law that prohibits employers from requiring current or prospective employees to disclose the username or password of their social media accounts and forbids them from retaliating against those who exercise their rights under the law. Employers also are prohibited from requiring an employee to add an employee, supervisor, or an administrator to the list of contacts associated with the employee’s social media account. Montana enacted a similar law, as have other states.

Social media policies generally. Clearly the proliferation of social media communications and images has given rise to an ever-growing number of employee complaints of harassment, discrimination, defamation, privacy violations, and other claims. Plus, there are employers’ interests in protecting the names of customers and potential customers, and in maintaining a positive public image on social media. Due to the changing legal landscape, variation among state laws, and the need to account for an employer’s unique circumstances, there is no one-size-fits-all social media policy that will protect an employer’s interests while ensuring compliance with applicable laws. As a consequence, employers are well advised to obtain legal advice from a local attorney experienced in both employment law and social media before adopting a social media policy and to regularly review their policies to ensure continued compliance.

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Mulling the latest minimum–wage machinations

May 11th, 2015  |  Lisa Milam-Perez  |  1 Comment

By Lisa Milam-Perez

“Raising pay raises us all,” declares the noble voice-over in Walmart’s latest TV ad. Have you seen it? It left me a little verklempt. The retail behemoth, so reflexively maligned in liberal circles, is raising pay for its hourly workers, and boasting about it.

There it is, folks: I’m callin’ it. This “Fight for $15” movement is a resounding success. What other explanation could there be for Walmart’s newest campaign? “Alt” labor’s PR blitz has fixed the public’s attention on the challenges facing low-wage workers and has fostered a sense of urgency, of moral imperative, over remedying their plight. The world’s largest retailer felt the heat, responded accordingly, and is making hay of it.

After Walmart raised its wages, TJ Maxx and Marshall’s quickly followed suit. Then in April, beleaguered “joint employer” McDonald’s Corp. said it would give a raise to workers at company-owned restaurants (i.e., a small fraction of the McDonald’s restaurant universe) to more than $10 an hour by 2016. Sure, we can wonder about motive (See that, NLRB—how few McDonald’s employees actually fall under corporate’s control? We’ve made our point!), but I’m still feeling all warm and fuzzy inside, so let’s not go there.

Of course, in concrete terms, the Fight for $15 is far from won. The world’s largest employer can boost its wages and its competitors can follow suit, but the majority of low-wage workers are still left behind. The most tangible solution is a sharp increase in the lagging federal minimum wage, currently a woeful $7.25 an hour. The Obama administration has doggedly pressed the matter of late, leading the charge in his 2013 State of the Union address and raising the rate to $10.10 for federal contract workers by executive fiat. Late last month, lawmakers proposed an audacious $12 an hour federal minimum wage by 2020—$110 billion in raises for affected U.S. workers—in the form of the Raise the Wage Act. No doubt their lofty ambitions were fueled by the Fight for $15 battle cry. Given the consistent failure over the years to move the needle in far more modest increments, though, their quest seems a Quixotic one.

Yet where Congress has lollygagged, the states have stepped in, a solid majority of which have minimum wages that exceed the federal rate. A number of those jurisdictions have raised their minimums still higher since 2013. In the 2014 election, voters handily approved increases in all five states where the minimum wage was on the ballot. Meanwhile, Democratic lawmakers are taking novel approaches to boost workers’ wages even further: Connecticut is pondering legislation that would charge $1 an hour to private companies with at least 500 employees (in an alternate bill: 250 workers) for each worker who is paid $15 an hour or less. Last week, New York Governor Andrew Cuomo called upon the state’s labor commissioner to convene a wage board to enact a wage-hike for fast-food workers specifically. And city governments have begun to take action too, with still higher local wage floors in Seattle, San Francisco, and Chicago, among others.

Alas, with progress comes pushback, as Republican legislators maneuver with equal fervor to undo wage gains already won. In January, on the heels of a citizen-mandated minimum-wage jump, South Dakota passed a measure to exclude workers under age 18 from enjoying the newly enacted pay raise, and a similar initiative is currently afoot in Nebraska. Last week the Missouri Senate voted to bar municipalities in the state from enacting local wage hikes; such legislation has been floated in several other states as well. Bids to eliminate longstanding prevailing-wage laws, which typically apply to public construction and service contracts, are in play in more than a dozen states too. Living wage ordinances also face court challenges by private employers; last week, for example, an airport contractor urged the Ninth Circuit to strike down LA’s Living Wage Ordinance, enacted in 1997. Of course, at the federal level, the GOP continues to dig in its heels. Senate Republicans in 2014 blocked a minimum wage increase. And in the House? Suffice to say that John Boehner once pledged to kill himself before he’d vote for a minimum wage hike.

They’ve won the PR battle, the Fight for $15 folks. But on the political front, the wage war rages on.

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Bill declaring pregnancy as protected status awaiting Florida Governor’s signature

May 5th, 2015  |  Deborah Hammonds  |  Add a Comment

A bill that would add pregnancy as a protected category under the Florida Civil Rights Act (FCRA) is waiting for Governor Rick Scott’s approval.

SB 982 would prohibit public and private employers from discriminating in employment based on pregnancy. The measure’s prohibition against discrimination based on pregnancy would extend to labor organizations, joint labor-management committees, employment agencies, and in occupational licensing, certification, and membership organizations. The bill also would protect against discrimination based on pregnancy in public lodging and food service establishments and in places of public accommodation.

According to a legislative analysis of the bill, the fact that the FCRA is modeled after Title VII but yet did not include this provision has caused divisions among federal and state courts as to whether the Florida Legislature intended to provide protection on the basis of pregnancy status. As a result, the ability to bring a claim based on pregnancy discrimination varied among jurisdictions within the state until the Florida Supreme Court recently ruled that by prohibiting discrimination based on sex, the FCRA also prohibits discrimination based on pregnancy.

The prohibition against discrimination applies to all private and public employers at the state and local level. In the public sector, the bill will apply to state agencies, counties, municipalities, political subdivisions, school districts, community colleges, and state universities.

SB 982 was unanimously approved by the Florida Senate on April 22, and its House by a 115-2 vote on April 24. If approved by Governor Scott, the measure would become effective July 1, 2015.

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OFCCP issues new directive on handling sexual orientation and gender identity discrimination complaints

April 30th, 2015  |  Cynthia L. Hackerott  |  Add a Comment

The OFCCP has issued a new directive to establish the agency’s policy on accepting and investigating individual and systemic complaints based on gender identity or sexual orientation. Directive 2015-01, entitled “Handling individual and systemic sexual orientation and gender identity discrimination complaints” is dated April 16, 2015 and took effect on the date of issuance. Under the new policy set forth in this directive, the OFCCP will accept and investigate individual and systemic complaints that allege discrimination on the basis of sexual orientation and gender identity against a federal contractor or subcontractor. It will analyze each complaint to determine whether the alleged discrimination occurred on the basis of sexual orientation or gender identity, as well as on the basis of sex, and will coordinate with, and refer complaints to, EEOC on a case-by-case basis.

Recent amendment to EO 11246. The OFCCP enforces Executive Order (EO) 11246, as amended, which prohibits covered federal contractors and subcontractors from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin. Sexual orientation and gender identity were expressly added to the categories protected from discrimination under EO 11246 on July 21, 2014, when President Obama signed EO 13672.

Regulations. On December 9, 2014, the OFCCP published in the Federal Register finalized regulations to implement EO 13672 (79 FR 72985-72995). On March 17, 2015, pursuant to the Paper Reduction Act, the Office of Budget and Management (OMB) approved the information collection requirements (ICR) necessary for implementation of those regulations. They took effect on April 8, 2015, and apply to federal contractors who hold contracts entered into or modified on or after that date.

Broader than LGBT. In its FAQ and webinars about these regulations, the OFCCP has explained that use of the “LGBT” abbreviation in place of “sexual orientation and gender identity” is discouraged in job advertisement tag lines “because it does not accurately reflect that people of all sexual orientations and gender identities are protected by the new regulations.” Of note, the “LGBT” abbreviation is not used anywhere in the new directive.

Enforcement. Although the OFCCP does not enforce Title VII, the directive notes that the OFCCP enforces the nondiscrimination obligations under EO 11246 by following Title VII and the case law principles that have developed interpreting Title VII. In addition, since the EEOC is the lead federal agency responsible for administering and enforcing Title VII (pursuant to EO 12067), the OFCCP generally defers to the EEOC’s interpretations of Title VII law.

Coverage differences. Title VII, unlike the amended EO 11246, does not expressly cover sexual orientation and gender identity. While violations of EO 11246 may be discovered during compliance evaluations, discrimination based on sexual orientation and gender identity may most often be found through the investigation of discrimination complaints, according to the OFCCP. Therefore, the OFCCP issued the directive to clarify that it will accept and investigate individual and systemic complaints of discrimination based on sexual orientation and gender identity under EO 11246, as amended, applying Title VII principles and case law, as appropriate. A determination about the handling of a complaint, once accepted, is made on a case-by-case basis.

These complaints may also contain a Title VII allegation of discrimination based on sex; however, not all courts have conclusively established that sex discrimination is equivalent to discrimination based on sexual orientation or gender identity, the OFCCP directive points out. In a footnote, the directive notes – citing the EEOC’s 2012 decision in Macy v Holder (CCH Employment Practices Guide ¶6881) as well as other EEOC and federal circuit court decisions – that although sexual orientation and gender identity are not explicitly protected by Title VII, the “EEOC and private litigants continue to develop sex discrimination theory.”

Coordination with EEOC. Compliance officers or others responsible for complaint processing usually make referrals of individual complaints to the EEOC pursuant to the OFCCP’s regulation at 41 CFR Part 60-1.24(a). This provision permits, but does not require, the OFCCP to make referrals to the EEOC for processing under Title VII. Previous OFCCP policy, expressed in the agency’s Federal Contract Compliance Manual (FCCM) at Section 6B states that pursuant to a Memorandum of Understanding between the OFCCP and the EEOC, the “OFCCP will generally refer individual complaints alleging employment discrimination in violation of EO 11246 to the EEOC,” but the OFCCP will retain EO 11246 class and systemic discrimination complaints. Yet, with the signing of EO 13672, the President gave the OFCCP explicit executive authority to ensure that federal contractors and subcontractors treat applicants and employees without regard to their sexual orientation or gender identity. Therefore, Section 4 of the new directive explicitly states that the directive supersedes FCCM Section 6B and other guidance “to the extent that they may be inconsistent with” the new directive.

In light of both the express protections conferred by EO 13672, the authority provided by the OFCCP’s existing provisions to retain or refer individual complaints, and the protections developed in case law under Title VII sex discrimination theory, the OFCCP will continue to coordinate and share information with the EEOC to the maximum extent possible to remedy complaints based on sexual orientation and gender identity. Such coordination will be fact-driven and occur on a case-by-case basis. The OFCCP will continue to transfer or jointly investigate complaints when the OFCCP lacks jurisdiction and in other cases when discrimination is more completely remedied by joint investigation or by the EEOC alone.

Gender identity complaints. Under EO 11246, the OFCCP has jurisdiction to investigate federal contractors or subcontractors with a contract of $10,000 or greater. For sexual orientation complaints, the contract or subcontract must be entered into or modified on or after April 8, 2015 – i.e., the effective date of the OFCCP’s regulations implementing EO 13672. For gender identity complaints, the OFCCP asserts that, pursuant to Directive 2014-02, it has jurisdiction to accept and investigate complaints even if qualifying new or modified contracts pre-date April 8, 2015.  Directive 2014-02, effective as of August 19, 2014, clarified the OFCCP’s interpretation that gender identity is part of the protected category of “sex” and therefore, discrimination against federal contractor employees on the basis of gender identity was already prohibited prior to the effective date of the regulations implementing EO 13672.

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Walmart pharmacist could pursue claim for promised overtime to straighten out pharmacy

April 28th, 2015  |  Ron Miller  |  Add a Comment

The Department of Labor has unequivocally and consistently declared that additional compensation in the form of hourly overtime payment does not defeat exempt status under the salary basis test. However, a Walmart pharmacist faced a slightly different challenge—prying overtime payments out of the discount retailer that he alleged were promised if he agreed to relocate and straighten out a troubled pharmacy.

In Nightingale v. Wal-Mart Stores, Inc., a federal district court in Ohio found that the employee understood that he was being offered extra pay to address the problems at a store pharmacy in exchange for his promise to move there, and such promise was found to be clear and unambiguous. Further, a jury could find that the employee relied on the promise and reasonably expected to be paid, and that he was injured when Walmart terminated him from his job. As a consequence, the court ruled that the employee could pursue a promissory estoppel claim after the giant retailer allegedly reneged on the deal.

The employee moved to Ohio to work at a Walmart pharmacy that was apparently riddled with problems. Allegedly, he was promised overtime to straighten out those problems if he agreed to relocate, even though he was a salaried pharmacy manager. According to the employee, he was fired after he complained about not receiving additional compensation. Walmart moved for summary judgment, contending that the employee was exempt from overtime under the FLSA as a salaried professional. Importantly, it also asserted that his promissory estoppel claim failed for lack of a specific promise.

Overtime claims. There was no genuine dispute that the employee was an exempt professional employee, and to the extent that he originally pleaded he was not exempt, that contention was wrong.

Accordingly, Walmart was entitled to summary judgment on the FLSA and state-law overtime claims.
While the employee could not maintain a statutory claim for overtime under the FLSA, because he was an exempt professional, the heart of his claim was the promise to pay additional compensation. Because the employee asserted his entitlement to additional compensation based on his understanding that he was promised such compensation during the hiring process; he was not invoking his statutory rights.

Promissory estoppel. The employee’s claim for additional compensation was framed as a cause of action pursuant to the doctrine of promissory estoppel, explained the court. Such a claim requires four elements: (1) there must be a clear and unambiguous promise; (2) the party to whom the promise was made must rely on it; (3) the reliance is reasonable and foreseeable; and (4) the party relying on such promise must have been injured by the reliance.

A review of the record showed that the employee understood that it was promised that he would be entitled to extra pay for overtime hours needed to address the problems at the Walmart pharmacy in exchange for his agreement to move there. Such an alleged promise could be viewed as clear and unambiguous, the court found. Moreover, the employee met the remaining prongs of a promissory estoppel claim: a jury might find that he relied on the promise to be paid to fix the pharmacy, that he relied on such promise by moving to Ohio and working long hours, that he reasonably expected to be paid, and that he was ultimately injured when he lost both the additional pay and his job. As such, the employee’s promissory estoppel claim survived Walmart’s summary judgment challenge.

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