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Bits and Bytes

October 6, 2011

Steve Jobs has passed away, leaving many iMourners beside themselves today. His legacy has touched many aspects of everyone’s lives, from the way they now conduct business on a tablet, to the way they remember what groceries to get, to the amount of overtime people are owed ….WHAT!?! How did that last bit get in there?

Our blog is not just satisfied mentioning Jobs passing, finding a candle app on our iPad and holding it above our heads. We must look at the lasting impact the iphone, ipad, and other electronic devices have on wage & hour law in the workplace.

As a harsh reminder of the impact technology is having on wage & hour law, recently Chicago police Sgt. Jeffrey Allen filed a class action against the City of Chicago claiming iOT. Allen is suing the City of Chicago on behalf of himself and others, seeking pay for time spent dealing with work-related phone calls, voice mails, emails, text messages and work orders via BlackBerry devices and similar "personal digital assistants." The officer alleges these activities entitle the group to overtime compensation under the federal Fair Labor Standards Act (FLSA).

Employers must be cautious in providing electronic communication devices to employees. When looking to balance the need to increase the ability to communicate and the risk of catastrophic class action liability, a careful review of employees’ qualification for overtime exemptions under the California Wage Orders is a great place to start. Employers should be carefully scrutinizing which employees are provided with electronic communication devices and ensuring those individuals are properly classified as exempt from overtime.

In Other News…..Brinker

The California Supreme Court has finally scheduled oral argument on the eagerly anticipated Brinker v. Superior Court case (see previous posts). The oral argument is scheduled for November 8th at 9 a.m. in San Francisco. There is no telling how long it will take the Court to issue a ruling following oral argument. However, this is at least a step in the right direction to finally getting an answer to the question of what employers must do to “provide” 30 minute meal periods to employees.

Any lastly: NLRB Delays Employee Rights Notice

On October 5, 2011, the National Labor Relations Board (NLRB) announced that it will postpone the implementation date for the new NLRA employee rights notice. The final rule, codified at 29 C.F.R. § 104.202, will require almost all employers to post a notice explaining: employees’ rights under the National Labor Relations Act (NLRA) (such as their right to organize, bargain collectively, discuss wages and other terms and conditions of employment, and picket and strike); what is deemed illegal employer and union activity under the NLRA; information concerning basic enforcement procedures; and Board contact information. Employers that are subject to the NLRA must post and maintain the NLRB notice in conspicuous places, including all places where notices to employees are customarily posted.

The original implementation date of November 14, 2011 has now been moved back to January 31, 2012 to “allow for enhanced education and outreach to employers.” Translation: the NLRB has received over 7,000 comments about this regulation, mostly from the business community, and needs time to overcome objections and sell their final pro-union product.