Monitoring Computer Use – October 31, 2002
You may be reading this quick clip at work. If so, the federal Government Accounting Office reports that your employer may be monitoring your computer use to insure that you are not visiting obscene web sites, sending offensive email, or otherwise misusing your computer. The report, released October 28, states that six out of 14 companies involved in the survey routinely monitor computer use by its employees, in some cases examining the internet sites they visited.
While this practice is generally permissible, we recommend that you have a policy on internet and email use. If your company monitors internet and email usage, your employees should know. After all, the purpose of an internet and email usage policy is to prevent abuse, rather than find another reason to discipline employees.
If You Can Run An 8 Minute Mile - - You Got The Job, October 18, 2002
The Southeastern Pennsylvania Transportation Authority's (SEPTA) minimum physical fitness requirement that applicants run 1.5 miles in 12 minutes (an average 8-minute mile) was recently upheld by the Third Circuit, despite the different performance rates for male and female applicants. The average pass rate on the running test over a 3-year period was 12% for women and 60% for men.
In 1997, five women challenged the physical fitness requirement, claiming that it had a disparate impact on women and violated Title VII. The U.S. Department of Justice joined in the complaint against SEPTA, stating that the entire physical fitness test constituted a pattern or practice of discrimination against women.
The Third Circuit disagreed, stating that there was a business necessity for the physical requirement and that statistical evidence supported their decision. For example, SEPTA demonstrated that those who could run an 8-minute mile had an 80% chance of arriving at the scene of an emergency in time to administer assistance, and if all SEPTA's officers met the aerobic standard, SEPTA could have made 470 additional arrests and fewer criminals would be able to "prey on and victimize the riding public."
The most logical rationale was stated by the dissent. "Because the test disqualifies 90% of female applicants from even beginning training, the test is suspect," wrote Judge Theodore A. McKee. Judge McKee suggested that SEPTA should consider imposing the running test as a condition of graduating from the police academy, rather than as an application qualifier, since the period between application and graduation is sometimes as long as two and a half years. He added, if the requirement was so essential, why is it not required of incumbent officers, pointing out that the test was not required of employees who transfer into the agency or those who are promoted within. See Lanning v. Southeastern Pa. Transp. Auth., No. 01-1040 (3d. Cir. Oct. 15, 2002).
Free Housing But No Pay - Not a Violation of FLSA, October 10, 2002
For decades, government officials in Baltimore County, Maryland made arrangements with various married couples that in exchange for performing general caretaking duties in public parks, the County would provide the couple with free housing located in or near the park. When the program was discontinued in 1999, the caretakers sued, alleging that the County failed to pay them minimum wage and overtime in accordance with the Fair Labor Standards Act (FLSA).
Caretakers argued that they were entitled to compensation for every hour they were in the park. They contend that in addition to cleaning park areas, opening and closing the park gates to the public, and maintaining a log of maintenance needs, their 24-hour responsibility was to live in the park and wait for emergencies to arise.
The Fourth Circuit disagreed with the Caretakers' argument. It held that "the Caretakers . . . failed to produce specific facts to overcome the presumption and support their assertion that they were 'working' within the meaning of the FLSA the entire time they were present in the park." Because it would be administratively burdensome to determine the exact number of hours they worked, under the FLSA, a reasonable agreement (e.g., free housing in exchange for caretaking duties) is acceptable, the court said.
Even accepting the Caretakers' highest estimate of the time spent working each day, the rental value of the residences compensated them at a rate above minimum wage, the court determined. The court concluded that the caretakers would have had to work more than 4.5 hours a day to earn more than their free rent, and they failed to present evidence that they worked that many hours. See Myers v. Baltimore County, Md., No. 01-2356 (4th Cir. unpublished Oct. 7, 2002).
Ignorance Of The Arbitration Agreement Is No Excuse, October 8, 2002
Beginning in October 1997, Pinkerton Security went to great lengths to introduce its new arbitration policy to employees. It took four carefully planned steps to inform its employees of the new change.
First, Pinkerton Security included a "payroll stuffer" in employees' paycheck envelopes. The stuffer was a colorful brochure entitled "Pinkerton's Arbitration Program," and announced a mandatory arbitration program effective the first on the year. The brochure was accompanied by an acknowledgment form. Second, six months later, Pinkerton included an article on the arbitration program in its monthly magazine, and featured the article on the cover of its May 1998 monthly magazine, which was distributed to all employees. Third, Pinkerton hung posters at all work sites which stated, "Arbitration: It's fair, it's convenient, and it's policy." Finally, Pinkerton distributed a second payroll stuffer to all employees entitled "Settling Disputes Through Arbitration." This document reiterated the terms of the original brochure.
Despite all of these efforts, employee Ilah Tinder swore that she never received notice of the program. When Ms. Tinder filed a complaint of gender discrimination, religious discrimination, constructive discharge, and retaliation in federal court, she was shocked to learn that she was bound by an arbitration agreement. She was even more shocked when the district court compelled her to arbitrate her claims, rather than submit them to a court of law. Ms. Tinder appealed.
The Seventh Circuit affirmed the decision to arbitrate, stating that Ms. Tinder could not avoid compelled arbitration by generally denying facts on which the right to arbitration rested. She failed to identify specific evidence in the record demonstrating a material factual dispute for trial. Ms. Tinder's only evidence that she never received notice of the arbitration program was her own affidavit. Otherwise, her pleadings suggested that she was aware of the employee magazine article and she failed to mention whether she saw the posters or the subsequent payroll stuffer. See Tinder v. Pinkerton Security, No. 01-3876 89 FEP Cas. 1537 (7th Cir., Sept. 17, 2002).
The lesson learned - ignorance of the arbitration agreement is no excuse.
Employer Liability for Raped Employee, October 8, 2002
During a layover in Rome, a male flight attendant invited co-worker Penny Ferris to his hotel room, drugged her and then repeatedly raped her. Ferris reported the rape, and later learned that her co-worker was the subject of rape accusations by two other flight attendants. Ferris sued Delta air Lines for hostile work environment sexual harassment.
Reversing summary judgment for the employer, the Second Circuit Court of Appeals held that Ferris could proceed to trial with her claims. The Court found that the circumstances of airlines providing lodging for flight attendants in a foreign country created a "work environment" under Title VII. Therefore, Delta could be held liable for the activities in an employee's hotel room. Moreover, Delta's prior knowledge of the flight attendant's "proclivity to rape co-workers" could establish negligence, even though Ferris had not been the victim of those earlier reports, the court stated.
Delta argued unsuccessfully, that to hold it liable for its employee's actions "imposes upon employers an obligation to inquire into, investigate, and regulate the private lives of their employees and thereby substantially impairs significant privacy rights." Such a holding expands employer liability far beyond the intention and language of Title VII, said a Delta spokesperson.
On October, 7, 2002, the U.S. Supreme Court declined to disturb the appeals court's holding. See Delta Air Lines Inc. v. Ferris, U.S. No. 01-1829, cert. denied, (Oct. 7, 2002).
Food by the Pound and the Minimum Wage, October 1, 2002
The Department of Labor in Chicago has announced a law suit against 11 Chinese-style buffets for wage and hour violations. It appears that the Labor Department has found a pattern of ignoring minimum wage and overtime laws in these restaurants that dish out "food by the pound" in Styrofoam containers, even where the restaurant had agreed to abide by federal wage and hour laws. The Department said that it found "zero compliance" in most restaurants.
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