Employer Concerns Grow With Increased Employee Web Use

Many workers across the country use their work computer to access the Internet for entertainment and personal use.

While employers generally turn a blind eye to the occasional check on sports scores or weather report, problems can arise if employees are routinely surfing the ‘Net for porn.

An employee viewing porn sites at the workplace can lead to a claim of sexual harassment, for instance, with the employee’s use of the Internet as evidence of a hostile work environment.

Another potential problem is when an employee uses e-mail to threaten harm to somebody. If something ever happened, the injured person could claim that the employer should have known about it and didn’t do anything to stop it.

Personal use of a company computer also risks a potential security threat to a

company’s computer network – such as picking up a virus or creating a security breach.

Employee blogs may cause problems, too, by defaming the company or disclosing trade secrets.

Employers at a minimum should have a written policy in place concerning employee use of the Internet. And they should monitor their employees within reason, depending on the size of their company and IT resources.

Some companies install software so that every time a user logs on to the Internet, a warning screen appears telling employees the company reserves the right to monitor their use of the Internet, and by clicking “Okay,” they consent to that monitoring.

Once a policy is put in place, it’s very important for employers to enforce it, otherwise it likely will be ineffective.

Overtime, Minimum Wage Claims on the Rise

Employees are increasingly filing lawsuits alleging companies have violated the federal law requiring payment of minimum wage and protecting the right to overtime pay.

Claims under the law – known as the Fair Labor Standards Act – have almost doubled over the past six years. And claims under similar state laws have also increased.

Employees, for example, are claiming minimum wage or overtime violations by their employers, or are seeking wages for meal and rest-time periods, or are suing over expenses that haven’t been reimbursed.

In the past, these claims were usually filed by service employees such as wait staff or retail workers. But higher-paid employees, like stockbrokers, are now also filing claims.

New Department of Labor regulations changing the overtime rules went into effect August 2004. The new rules were intended to limit the number of employees seeking overtime, but they may have had the opposite effect because they heightened employee awareness about potential wage and hour violations.

Another factor is that some employers are trying to avoid their obligations under the law by labeling workers as “independent contractors” even though the job requirements haven’t really changed. And some companies are trying to get more productivity out of employees for less money, which may lead to wage and hour violations.

Some states have laws that mirror the federal law, but others have different rules, which sometimes trip up employers that have operations in multiple states.

For example, New York and the District of Columbia have a higher minimum wage than the national standard, while others, such as Florida, have linked their

minimum wage to the consumer price index, which is adjusted annually.

States such as Colorado, Illinois, Kentucky and Nevada also have overtime rules that differ from the federal regulations.

And California mandates that workers entitled to overtime (known as non-exempt employees) are entitled to overtime for hours exceeding 40 each week, and hours exceeding eight each day.

Also, the rules vary from state to state whether on mid- to low-level employees are entitled to overtime.

Classifying mid-level managers as either non-exempt (entitled to overtime) or exempt under the varying rules can be tricky. They can be exempt under federal law, but non-exempt under state law, for example.

Employers should review each employee’s job description and classification each year to make sure each employee is classified properly under both federal and state law.

Sometimes violations are accidental. For example, an employee may be assigned to a certain position, but the job requirements may evolve over a period of time, making the employee eligible for overtime without the employer realizing it.

Written job descriptions may be out of date, which means companies should conduct an in-depth audit of payroll records and employees’ daily tasks to search for potential violations.

Family Leave Act Doesn’t Protect Workers Whose Jobs Are Downsized

A casino worker went on medical leave after suffering a heart attack. While he was out on medical leave, his employer told him that it was reorganizing its work force and his prior position was being eliminated.

He chose not to apply for any newly-created position and was eventually discharged.

The man sued the casino, claiming it violated the federal Family Medical Leave

Act by not letting him have his job back at the end of the leave.

However, the federal court covering Virginia, North Carolina and South Carolina ruled against the worker, saying federal law doesn’t guarantee a return to a prior job following medical leave if an employee would have been discharged had he not taken leave.

Federal courts in other areas of the country have made similar rulings.

Death of Employee Doesn’t End Discrimination Suit

A Massachusetts plumber sued his employer when he was not reinstated following an authorized medical leave of absence because of a heart condition.

He died while his case was pending. The cause of his death was unrelated to his medical leave of absence. The employer asked the court to dismiss his claim as a result, saying the man’s discrimination claim did not survive his death.

But the Massachusetts Supreme

Judicial Court disagreed, ruling the claim did in fact continue despite the man’s death. His estate can pursue the claim.

The court said the claim against the employer – a discriminatory refusal to permit the plaintiff to return to work after a medical leave – is an alleged violation of the man’s implied contractual rights. A contract claim can survive the death of an individual, the court noted.

The court followed similar rulings from federal courts around the country.