Just because it’s that I-Can’t-Believe-There’s-One-Week-Left-In-August time of year, doesn’t mean there isn’t some fun and exciting law coming down the pike. An important decision was issued this month by the Second Circuit for employment law generally, but also for social media pundits.
In Donnelly v. Greenburgh Central School District, the Second Circuit reversed the lower court’s decision to grant summary judgment to the defendant employer and dismiss plaintiff’s complaint. Plaintiff alleged that he was denied tenure in retaliation for taking FMLA leave. One of the primary issues on appeal involved the defendant’s argument that plaintiff was not entitled to FMLA leave in the first place because he worked only 1,247 hours in the preceding year (the FMLA has a threshold 1,250-hour requirement to be entitled to FMLA leave). Defendant had calculated the hours by relying on a provision in the collective bargaining agreement (“CBA”), which provided for a 7.25-hour workday for teachers. Thus, adding up the hours for the days that plaintiff worked, the defendant argued that he was three hours short of the FMLA eligibility requirement.
What seemed like should be a simple issue to decide based on pure math, was not. On appeal, the Second Circuit said that summary judgment was inappropriate because it was for a jury to decide the fact issue of how many hours the plaintiff had truly worked, taking into account any after-hours work that he performed (e.g., grading papers, lesson planning) beyond the 7.25 hours identified in the CBA. As the court held:
“In cases where a plaintiff avers that a relevant compensation agreement – including [] a collective bargaining agreement – do[es] not accurately reflect all of the hours an employee has worked for or being in service to the employer, . . . the employer has the burden of showing that the employee has not worked the requisite hours. . . .
“A jury reviewing the evidence in this record might well conclude that the evidence that [plaintiff] presents is insufficient to persuade it to find that he spent three or more hours beyond the CBA-maximum time engaged in activities integral to his employment. That factual inquiry is not ours to answer. The [defendant] has raised questions about the credibility and probative force of [plaintiff’s] evidence that he worked enough additional compensable hours to qualify for FMLA leave. But these questions are, on this record, to be answered by the jury[.]”
Employer Take Away: What should you as an employer take away from this development?
Two important takeaways here:
1. It does not only matter what working hours are identified in a contract, policy, or other written document for a particular position. What matters is the number of hours your employee is actually working on a day-to-day basis. The Second Circuit’s decision continues to put common notions of “the burden being on the one suing” on its head, by making an employer have to prove that the employee didn’t work if the employer is placing eligibility under the law at issue.
2. There are social media implications here, for, as we have blogged about before, it is often difficult to keep up with the activities of your employees outside the typical 9-5 office hours, and outside the four walls of your traditional office. Whether responding to e-mails while at a move theater, blogging on a company-owned site, accessing your company’s server remotely from home, or simply speaking on the smart phone from the kitchen, an employee must be paid for all hours “worked”. And all hours “worked” will be calculated for purposes of eligibility under various employment laws.
It is vitally important for your company to develop a system of keeping track of, recording, and acknowledging when your employees are and are not working. It is not just an issue of determining whether someone is properly classified as “exempt” for overtime purposes, but, as this case suggests, a broader employment law issue. Noteworthy in the Second Circuit’s Donnelly decision: “[T]here is no indication in the record that the [employer] maintained records of the working hours of the teachers[.]”
Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.
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