This month’s column will share an independent contractor victory, case development concerning smartphone use and a new law that requires lactation breaks.

1.         Independent contractor victory at The Columbian!

One of The Columbian’s (Vancouver, Washington) carriers filed for unemployment in Oregon. However, the contractor lived in Washington and delivered papers in Washington. There is also a state statute in Oregon (and Washington) that exempts newspaper carriers from the definition of employment.  Under Oregon Revised Statute 657.080, “Employment” does not include service performed by an individual: (1) in the delivery or distribution of newspapers or shopping news, not including delivery or distribution to any point for subsequent delivery or distribution; (2) in the delivery or distribution of newspapers whose remuneration primarily consists of the difference between the amount the individual pays or is obligated to pay for the newspapers and the amount the individual receives or is entitled to receive on distribution or resale thereof.  Notwithstanding these facts, the Oregon Employment Department determined this carrier to be an employee of The Columbian and was eligible for benefits. The Columbian appealed.

The Oregon Employment Department conceded the error of its initial administrative decision and issued a new decision cancelling the original employee finding.  In this amended decision, the Oregon Employment Department noted that it “had no jurisdiction to issue that decision because the claimant worked as an independent contractor, not as an employee.”

Editor’s note: The Zinser Law Firm represented The Columbian.

2.         Smartphone use and overtime laws

Do you give your employees smartphones like a Blackberry, iPhone, or Palm? If you do, you would not be alone. This has become a common practice in the business world, but now employers are starting to realize the consequences of their decision. Across the country, employers are finding themselves under attack in class action lawsuits by non-exempt employees for overtime wages when they respond to calls or emails after work.

AT&T is currently facing two lawsuits. In 2008, AT&T Mobility employees filed suit in New York federal court and claimed that AT&T violated the Fair Labor Standards Act by not paying overtime for smartphone usage when they were not clocked in to the company computer-based timecard system. The employees were a mix of sales assistants and assistant managers, claiming that they had to review and respond to email and text messages, as well as make and receive telephone and conference calls beyond their normally scheduled hours. In 2009, another set of IT employees filed suit in California federal court, claiming that they were required to be on-call 24 hours per day and respond to pages within 15 minutes to fix various problems and were not compensated for their on-call, standby time even though they allegedly counted as hours worked.  Other suits in 2009 involved companies like CB Richard Ellis and T-Mobile, who were also sued by employees for overtime wages based on review and response of email and text messages outside of work hours. All of these cases are still ongoing.

If you have a similar policy in place where non-exempt employees are provided a company phone/email device with the expectation that they respond to calls and emails after hours, you too may find yourself subject to a lawsuit by your employees demanding overtime when they use those devices outside their normal work hours. It would be wise to be proactive on this issue and analyze your timekeeping and after-hours communication policies to see if they need to be adjusted to comply with state and federal wage and hour laws.

3.         FLSA amended to include lactation breaks

Now that Congress has passed the so-called “Patient Protection and Affordable Care Act,” employers are learning about new provisions in the bill that went under the radar. One such provision can be found at Section 4207 of the bill, and is entitled, “Reasonable Break Time for Nursing Mothers.” This Section amended the Fair Labor Standards Act by requiring employers with more than 50 employees to provide a “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express milk.” In addition, the employer must “provide a place, other than a bathroom, that is shielded from view and free from intrusion” to perform this task. 

Note, however, that this amendment does not require employers to pay employees while they are on their lactation break. Congress said that this new requirement will not pre-empt state laws that may offer greater employee rights. 

This new requirement does not apply to employers with less than 50 employees if compliance would impose an undue hardship by causing significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the business. Of course, this criteria is left vague; the Department of Labor has yet to issue any interpretive bulletins or regulations for employers to figure out the best way to comply with this new law.

As a result, this new law will likely result in small businesses facing litigation whereby they must justify the undue hardship they would face if they provided nursing mothers with a lactation break. While this has not been a hot topic of litigation in the past, roughly 25 states already provide lactation breaks; this could change, given the level of national attention this amendment has received.