iPhones and Overtime, Part II

From a French law limiting employees' responsibility for after-hours emails to a federal court ruling placing new federal overtime rules on hold, employment law governing overtime pay continues to adapt.

A previous post on this blog discussed a lawsuit in which Chicago police officers alleged that they were issued smartphones and required to use them while off duty, but were not paid overtime. Since that original post, a federal magistrate ruled in favor of the city of Chicago. The court determined that the city did not know that the plaintiffs were working overtime without compensation, in part because other officers did document their overtime use of smartphones and were compensated accordingly.

Wage & Hour Insights has a detailed analysis of the court's ruling:

In short, the rule is simple: employers must make a good-faith, reasonable effort to track all work time for non-exempt employees and pay employees accordingly. The law doesn’t mandate perfection, nor will it hold employers liable for employees who fail to report their time through no fault of the employer. 

An appeal is pending.  In the meantime, the takeaways for employers remain the same (whether considering the future of overtime regulations or employee smartphone usage): establish clear written policies, keep detailed records, and train employees accordingly.

Facebook Users Can Now Designate Someone to Manage Account After Death

In response to growing calls from the public, Facebook has given users more control over their account after death. 

From the Associated Press:

Facebook is making it easier to plan for your online afterlife. 

The world's biggest online social network said Thursday that it will now let users pick someone who can manage their account after they die. Previously, the accounts were "memorialized" after death, or locked so that no one could log in. 

But Facebook says its users wanted more choice. Beginning in the U.S., Facebook users can now pick a "legacy contact" to post on their page after they die, respond to new friend requests and update their profile picture and cover photo. Users can also have their accounts deleted after their death, which was not possible before.

For more, read the Associated Press article, add a legacy contact to your Facebook page, or learn more about managing "digital assets" after death.

Uniform Fiduciary Access to Digital Assets Act Approved

Several months ago, a previous post discussed the important issue of what happens to someone's online accounts after their death.  Last week, the Uniform Law Commission approved model legislation to address this growing problem.

From the Uniform Law Commission's news release:

The Uniform Fiduciary Access to Digital Assets Act solves the problem using the concept of “media neutrality.”  If a fiduciary would have access to a tangible asset, that fiduciary will also have access to a similar type of digital asset.  UFADAA governs four common types of fiduciaries: personal representatives of a deceased person’s estate; guardians or conservators of a protected person’s estate; agents under a power of attorney; and trustees. 

UFADAA defers to an account holder’s privacy choices as expressed in a document (such as a will or trust), or online by an affirmative act separate from the general terms-of-service agreement.  Therefore, an account holder’s desire to keep certain assets private will be honored under UFADAA.

The draft legislation -- which gives the deceased's representative access to the accounts unless a will, court order, or law provides otherwise -- would only become effective if adopted by a state's legislature.

Listen....Do You Want to Know a Secret?

“Three may keep a secret, if two of them are dead.” Benjamin Franklin, Poor Richard’s Almanack

Secrets, especially business secrets, are hard to keep, and companies may take extreme measures to protect their valuable confidential assets. There are times, however, when your confidential information may need to be shared in a limited manner.  When discussing a potential business sale, franchise agreement, collaboration, subcontractor hiring, or other transaction, it’s important to protect yourself from the intentional or accidental spilling of secrets.

Before you begin sensitive business discussions, we recommend that the two parties begin by signing a nondisclosure or confidentiality agreement. A nondisclosure agreement enables you to explore a potential business relationship without fear that your existing business secrets will be compromised. In essence, the parties agree that certain confidential information may only be used to evaluate the potential relationship and may not be disclosed to third parties.

Among the important questions to examine are:

1. What information must be kept confidential?
2. Are there any exceptions in which confidential information may be disclosed? For example, can the information be shared with your attorney or financial advisor? 
3. What efforts are required to prevent disclosure? 
4. How long does the confidentiality agreement last? 
5. If confidential information is disclosed in violation of the agreement, what remedies do you have? 

Because there are at least 45 tips to consider when reviewing a nondisclosure agreement, you may wish to consult an attorney to make sure that your secrets are well-kept.

German Labor Ministry Bans After-Hours Employee Contact

In a previous post, we examined whether employees could owe overtime pay to non-exempt employees who use their company smartphones after normal working hours and how employers should establish clear policies governing smartphone usage.

In Germany, this need for clarity was highlighted when the country’s labor ministry recently banned managers from contacting employers after-hours except in case of emergency. . Under the guidelines, employees are not to be penalized for failing to check voicemails after hours and should only be contacted if the matter cannot wait until the next workday. Other German employers, including BMW and Volkswagen, have also established policies to limit after-hours contact. The policy comes in the wake of an apparent suicide by a Swiss telecom executive who had admitted the constant use of his smartphone caused him extreme stress.

While these guidelines were established to protect the “mental health” of employees rather than to avoid overtime pay, the principle is the same. Employers and employees both benefit when clear policies are established and communicated.

Sixth Circuit Rules on Telecommuting as Reasonable Accommodation

Yesterday, the 6th Circuit Court of Appeals issued a ruling in EEOC v. Ford Motor Co., deciding in favor of an employee who requested to telecommute to work for medical reasons.

The Ohio Employer's Law Blog has this summary of the case, where a key issue was whether physical presence was an essential function of the employee's job:

Yesterday, in EEOC v. Ford Motor Co., the 6th Circuit, for the first time, recognized that modern technology is making telecommuting a realistic reasonable accommodation option. . . . 

"[W]e are not rejecting the long line of precedent recognizing predictable attendance as an essential function of most jobs.… We are merely recognizing that, given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are “extraordinary” or “unusual.” … [C]ommunications technology has advanced to the point that it is no longer an “unusual case where an employee can effectively perform all work-related duties from home.” 

For more, visit the Ohio Employer's Law Blog.

iPhones and Overtime

According to a recent Pew Research study, 55% of American adults have a smartphone and 63% of cell phone users use their phone to go online. The growth of smartphone usage has made it easier – and more acceptable – for employees to perform job responsibilities before or after the regular working day.

For employers, however, these technological advances can be dangerous. The Fair Labor Standards Act (FLSA) requires non-exempt employees to receive overtime pay for working more than 40 hours in a week. If non-exempt employees use their phones to work after-hours, the employer could owe them overtime pay.

A pending case in Illinois federal court, Allen v. City of Chicago, has brought this issue to light. In the lawsuit, a Chicago police officer alleged that he was required to regularly check his employer-issued Blackberry device and respond to e-mails, voice mails, and text messages while off duty but not paid overtime. While it is important to note that a final decision in the case has not been reached, the court has allowed the suit to proceed, finding that Allen made plausible allegations that the City violated the FLSA.

Whether or not Allen is ultimately successful, the case can already teach employers a few lessons:

1. As much as possible, only provide smartphones to exempt employees who are not subject to overtime pay requirements. 
2. If non-exempt employees need smartphones, establish clear written policies to detail who should be issued a phone and what type of after-hours use is permissible. 
3. Require the non-exempt employee to carefully track any after-hours work, and review the employee’s records for accuracy. 
4. Provide training to managers, supervisors, and employees, to ensure knowledge and compliance. 

For a more detailed look at these issues, visit For the Defense, the Legal Intelligencer, or Parker McCay.

Facebook After Death: What Happens to Your Digital Assets?

From bank accounts to social media, more and more of our personal information is stored and accessed online. But after someone dies, both these digital accounts and the “digital assets” (from e-mails to stored files) contained in the accounts can become difficult for the deceased’s representative to access.

Typically, access to a deceased’s online accounts or assets is governed by each site’s policies. For example, Twitter requires a death certificate and a signed statement from the deceased’s representative before closing an account. Shutterfly will provide access to an account with proof of a death certificate and power of attorney document. Yahoo allows a deceased’s account to be closed by the personal representative but not accessed. Requests to close Instagram accounts can be made entirely online by someone other than the representative. Gmail warns that its 2-step process may take several months and require, among other things, an e-mail from the deceased and a court order.

In an effort to streamline family member’s access to online information, some states have proposed or enacted legislation to allow family members or representatives to access digital assets or accounts. For example, Idaho’s law specifically gives the power to an estate’s personal representative to “take control of, conduct, continue, or terminate any accounts of the decedent” on social networking, microblogging, or e-mail websites. Ohio has not yet enacted such a law.

It is unclear how this patchwork of new law will affect existing probate, criminal, or other statutes. As a result, the Uniform Law Commission is currently drafting model legislation governing Fiduciary Access to Digital Assets to give guidance to the states.

Until this new area of law is settled, both clients and attorneys should include digital asset consideration in the estate planning process. We are now recommending that our clients incorporate language into their estate plans to specifically grant personal representatives the power to access digital assets after death.