Where Employment Litigation Is Headed and How to Cut it Off

July 1, 2015 – In The News
LexisNexis Corporate Law Advisory

In recent years, there has been a considerable increase in employment class action lawsuits, collective actions and discrimination cases.

According to Ari Weisbrot, the Fair Labor Standards Act (FLSA), the Family & Medical Leave Act (FMLA) and the Fair Credit Reporting Act (FCRA) are areas where employment litigation is occurring most.

One of the more pertinent areas of FLSA claims involves automatic deductions, Weisbrot said. “This is a device created by some employers, who automatically deduct anywhere between a half hour and an hour of their employee’s time for meals, regardless of whether they took the time off ” he said. “It results in reduced hours.”

While the courts have said this practice is not necessarily unlawful, the restrictions are so arduous and the standards so difficult to achieve that Weisbrot says employers just shouldn’t do it.

FLSA claims often involve automatic deductions, pooling or sharing of tips and donning and doffing. One particularly hot area of FLSA law today stems from the popularity of unpaid interns. Problems arise when interns are benefiting the company without being paid, and are gaining little or no value for themselves and their education.

With the proliferation of smartphones, employees are no longer confined to the office to complete work.  As such, hourly employees who actively correspond with colleagues after hours must be paid, although there is a de minimus exception.  “If you send an email in the middle of the night or you make a phone call after dinner and that’s all it is, then you’re probably not required to be compensated for it,” Weisbrot said. “But if it’s a phone call here or an email there, and it starts to add up, then you could present that to your employer and ultimately to the courts, as an aggregated claim for pay.”

FMLA cases are now mainly centered around the severity of employee ailments and their use of medical leave. FCRA violations often occur at a very minute level and are easily missed, but they can still lead to costly class actions.

In order to prevent any employment litigation, Weisbrot recommends staying proactive and classifying employees honestly. "If you feel like maybe you’re going to be able to figure out a creative way to use interns and avoid paying them, I can guarantee you we’ll be talking about you next year," he said. He also suggested that keeping clear and accurate records is often the difference between a defense verdict and a plaintiff verdict, if litigation arises.