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.

The Benefits of Federal Trademark Registration

Registering your business’s trademark with the United States Patent & Trademark Office (USPTO) is not a requirement for protecting your mark. However, any “common law” rights based on the use of your mark are far more limited than the federal protections. For example, although you can file for trademark protection in Ohio, the state’s trademark statutes do not prevent someone from using the same mark in Indiana. A business which later discovers an existing trademark (like this North Carolina taco restaurant chain) could be forced to rebrand itself in order to avoid claims of infringement. 

Although you may still be able to establish rights based on your legitimate use of the mark, there are significant advantages to federal trademark registration.  The USPTO lists at least five important benefits of registration:

1. Constructive notice nationwide of the trademark owner's claim. Any potential users of the same mark are presumed to know that your claim is federally protected, even if the infringer does not have actual notice. For example, even if a soft drink maker had never heard of Coca-Cola and acted in good faith, his attempt to trademark the new drink name Koca-Cola would likely be denied because he is assumed to know that he is infringing.


2. Evidence of ownership of the trademark. Federal registration proves that you have the exclusive right to own and use the mark nationwide, barring others from trademarking the same mark or claiming ownership.


3. Jurisdiction of federal courts may be invoked. If your mark is federally protected, you can seek to have a trademark infringement case heard in federal, rather than in state, court.


4. Registration can be used as a basis for obtaining registration in foreign countries.  Marks can also be protected in foreign countries; however, in order to register your mark in a foreign country, you must first have a U.S. registration.


5. Registration may be filed with the U.S. Customs Service to prevent importation of infringing foreign goods. Once your mark is federally registered, it can be filed with U.S. Customs and Border Protection to stop imitation foreign goods from infringing on your protected mark. This can prevent infringing goods from being imported, as in recent cases involving counterfeit Hermes handbags or Levi’s jeans.

Other important advantages of federal trademark registration include the right to use the ® trademark symbol and the potential of receiving higher damages in a lawsuit.

As a result, in order to fully protect your business's trademark, federal protection is a must.

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.

Managing the Madness for Employers

As the NCAA Men’s Basketball Tournament tips off during the middle of the workday today with Ohio State’s opening game against Dayton, employers have a dilemma.

ThinkHR's Laura Kerekes put it this way:

So let’s face it: productivity is reduced somewhat during March Madness. But also consider that office morale and camaraderie can also be impacted favorably by this event, too. So what should an employer do? Embrace March Madness, ignore it, or manage it? 
 
Recent calculations by global outplacement firm Challenger, Gray & Christmas, Inc. estimated that office pools and online streaming of basketball games could cost America’s employers as much as $1.2 billion for every unproductive work hour during the first week of the tournament. In addition, office pools often violate state or federal anti-gambling laws.

Despite these dangers, employers gradually seem to be embracing, or at least tolerating the tournament. HR executives point to the positives of team building and employee engagement. At least one recent study says March Madness may even boost employee morale. In addition, employers likely realize that the ubiquity of smartphones allows avid fans to follow the games regardless of where they are.

So what should employers do to manage the madness? Recommendations include a free-to-enter company-wide office pool; televisions in break rooms; a relaxed dress code to allow employees to wear their team’s colors; or even flexible hours to catch the big game. And as always, well-defined and clearly communicated office procedures are a must.