Total Rewards Action Recording: COVID's Impact on Employment Law with Dorsey & Whitney Partner Michael Droke - 8/27/20

On August 27th, i4cp’s weekly Total Rewards Action Call featured attorney Michael Droke, a partner in the Seattle-based law firm of Dorsey & Whitney and a specialist in the field of employment law. Call facilitator Mark Englizian’s conversation with Droke delved into multiple areas chosen by an attendee poll: FLSA exemptions, sales roles, and employee privacy.

Key takeaways from the call:

  1. Employee privacy issues. Droke says he approaches privacy issues by first looking at statutory protections, adding that, in each jurisdiction, constitutional protections and common law privacy rights also factor in. Statutes are important because claims encompass damages and attorney fee shifting provisions.

    Speaking to employers as purchasers of benefit plans on behalf of employees, Droke said that claimants are most often covered under ERISA or the Americans with Disabilities Act. He advised making sure employers protect information on benefit plans – communications to employees should be done in a secure way. Any disclosure of a medical condition that is a disability can be questionable under the ADA. Currently relevant is potential disclosure of COVID-19. He says that, in general, employers shouldn’t disclose identity of an employee who’s tested positive when notifying others who may have been exposed and need to quarantine.

    Droke further advises employers do continued training on how coronavirus is transmitted (see CDC resources), don’t disclose identify of individuals infected, and do note that infected employees are quarantining.

  2. Privacy considerations for remote workers. In California, employers who are gathering information about employee activities online (especially if the employee is using a personal device) should review the California Consumer Privacy Act to ensure compliance. Other laws may also apply. The employer’s Privacy and IT teams should be involved. Some employers choose to invest in purchases of remote-work equipment to ensure that devices employees use at home are company-owned.

  3. Employee posts on social media that are not in agreement with employer values. Employers should have in place social media policies that require disclosure of anything that connects the employee to the company. If an individual likes or advocates products or services of their company online without disclosing that they are a company employee, Droke says, the situation could constitute a Federal Trade Commission violation. Social media policy should address such circumstances.

    Further, employers should not use an individual’s log-in credentials to log-in and gather information as it is a violation of the Stored Communications Act. Additionally, if the employee involved in making the inappropriate online comments is a union worker, additional regulations may apply.

    Droke also makes the point that when company leaders or managers engage on social media, their information becomes discoverable in lawsuits. Maintaining appropriate boundaries is important.

  4. Fair Labor Standards Act (FLSA) issues due to the pandemic. For hourly (non-exempt workers), Droke recommends that employers set up a system that accurately and adequately checks hours worked. That applies to off-the-clock work, but also to ensuring that those employees take appropriate rest breaks and meal periods. While those activities can be observed in a traditional work environment, it is more difficult remotely.

    Not having a standard workday can cause risk because work schedules may vary. Further, it is more difficult for managers to be aware of and addressing situations where work has been done outside the normal workday. The duty is on the employer to adequately monitor work time.

    Most employers are using their established systems, Droke says. But line managers may need to ask questions of employees about their hours in order to make sure that overtime is paid where appropriate. The issue can be exacerbated by the fact that many employees feel they must do more and work longer to be noticed and valued within the remote work setting. Droke warns that filing limitations on lawsuits related to overtime considerations are lengthy, so further time may elapse before legal actions make apparent the importance of accurate monitoring.

The recording of the session and its full range of discussion topics is available at i4cp’s Employer Resource Center, which also provides the latest research and practices to help organizations support their employees and respond effectively to the COVID-19 pandemic.

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