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Employment Law Alert

July 2, 2012

 EVEN THE SUPREME COURT FINDS THE FLSA CONFUSING

Over the last few years there has been an explosion in litigation under the Fair Labor Standards Act (FLSA).  Employers have been subject to significant liability as the result of class claims seeking damages for large groups of employees.  Much of the litigation has focused on whether employees were subject to the law’s overtime requirements or fell within one of the FLSA’s statutory exemptions from overtime.

Since the FLSA was enacted in 1938, many of the exemptions widely applied by employers have not changed significantly.  Yet, the workforce is very different today, and applying the FLSA to the current workforce has proven to be quite difficult not only for employers, but also the courts and the U.S. Department of Labor (DOL), which is charged with enforcement of the act. 

A recent 5-4 decision by the U.S. Supreme Court illustrates that difficulty.  In Christopher v. Smithkline Beecham Corp. (announced June 18, 2012), the Court considered whether an employer’s “pharmaceutical sales representatives” were covered by a commonly invoked exemption for employees engaged in “outside sales.”  The five justice majority, noting the reality of the modern workforce, rejected the contrary position taken by DOL and some courts by finding that the pharmaceutical sales representatives fell within the “outside sales” exemption under the FLSA and were not entitled to overtime pay.

This case demonstrates the importance for employers to carefully review their exempt/non-exempt classifications, particularly in light of heightened DOL enforcement efforts and the increasing number of claims, including class actions, being brought by employees.  For employees treated as exempt, employers should review the duties and responsibilities of those positions and the documents reflecting those duties and responsibilities.  In situations where exempt status cannot be clearly determined, employers should consider whether additional steps can be taken to enhance the likelihood of exempt status being found and/or to minimize potential liability if the employee is determined to be non-exempt. 

NLRB OFFERS GUIDANCE ON SOCIAL MEDIA POLICIES
FOR UNIONIZED AND NONUNIONIZED EMPLOYEES 

The Acting General Counsel for the National Labor Relations Board (NLRB) has issued a third report on cases decided by the NLRB involving social media and other communication and information-related policies (use of electronic technologies, confidentiality, privacy, protection of employer information, etc.) with respect to whether those policies violated the National Labor Relations Act (NLRA).  The latest report can be found here.

In brief, the NLRA gives employees, both unionized and non-unionized, the right to engage in “protected concerted activities.”   Such activities include discussing terms and conditions of employment, including through social media.  An employer may violate the NLRA if it has a policy or rule that would “chill” employees in the exercise of these rights. 

In six of the cases summarized in the latest report, the NLRB decided that at least some portions of the policies at issue were unlawful.   Few people would likely consider the guidelines in this report or prior ones issued by the NLRB to be clear as to what is permissible and non-permissible in the NLRB’s view.

Nonetheless, to provide guidance to employers in drafting policies, the NLRB‘s latest report includes a sample policy which the Board concluded was entirely lawful.  While there can be no “one size fits all” policy and employers will need to continue to craft policies for their particular businesses, operations and needs, the latest NLRB report and the sample policy can be a useful starting point.  

UPDATE ON DISTRICT OF COLUMBIA LAW BANNING DISCRIMINATION AGAINST UNEMPLOYED

The District of Columbia Unemployment Anti-Discrimination Act of 2012 went into effect on May 31, 2012.  See this Employment Law Alert for a summary of this law, which, among other things, prohibits District of Columbia employers and employment agencies from refusing to consider or hire an applicant for employment because of the individual’s status as unemployed. 

It is worth noting that the EEOC also appears to be focusing on this issue, so even employers outside the District of Columbia should be sensitive to practices or policies that limit access to employment for applicants who are unemployed. 

UPDATE ON MARYLAND LAW BANNING EMPLOYERS
 FROM REQUESTING PERSONAL PASSWORDS

The bill passed by the Maryland General Assembly prohibiting employers from requesting employees or job applicants to provide their login information (user name, password, etc.) for personal accounts or services (such as email or social media services) was signed by the Governor, and the law will go into effect on October 1, 2012.  See this Employment Law Alert for a summary of this law. 

For information on potential pitfalls associated with conducting Internet background searches of applicants (and employees), including reviewing their social media sites, see “More Reasons Not to Spy on Potential Hires,” an article recently published in Bloomberg Businessweek.

The contents of this Alert are for informational purposes only, and do not constitute legal advice. If you have any questions about this Alert, please contact a member of the Shulman Rogers 
Employment and Labor Law Group or the Shulman Rogers attorney with whom you regularly work.

Contact

Gregory D. Grant
301-230-6578
703-684-5200

Meredith “Merry” Campbell
301-255-0550