Note the Nature of Anonymous Mail - questions on aspects of labor law - Industry Legal Issue - Brief Article

Workforce, Oct, 2000 by Matthew T. Miklave, A. Jonathan Trafimow

Q: One of our employees is receiving anonymous letters/memos pertaining to work-related issues that are beginning to sound a bit threatening. These critical notes have been sent both through interoffice mail and to this employee's home. What, if any, measures should be taken?

A: You said that the mail concerns workplace issues, although you did not define them. Remember that under the National Labor Relations Act, an employee has the right to solicit other employees for the purpose of seeking to engage in concerted protected activity. Thus, the mail, in and of itself, may be protected activity. While the mail may lose the protection of federal law if it is used to harass or threaten, the threats have to be REAL threats. In other words, many times people look at pretty innocent expressions and read something into them that is not intended. The phrase "If I do not get out of this place soon, I think I am going to go nuts" may be an innocent overstatement or a calculated threat. How do you tell the difference? Examine the totality of the circumstances.

Sales Inside and Out

Q: We have a non-exempt service employee that we recently moved into a position called Sales II. His main job will be outside sales, while before, his main job was service, with some sales in-between. He will still he doing some service, but not a specific amount each week. The DOL states that a sales employee is exempt as long as 20 percent or less of the time is spent on things not involving sales. Since each week our employee could be putting in different hours for service, how would this work? Each week he will also be putting in more than 40 hours.

A: The FLSA provides that certain salespersons are exempt, but not others. When attempting to determine whether a particular salesperson is exempt, the first issue is whether they work "inside" or "outside." Outside salespersons are those employed for the purpose of making sales or obtaining orders for services and who are customarily and regularly engaged away from the employer's place of business. There is no salary basis test for outside salespersons. Rather, if the outside salesperson spends more than 20 percent of the normal workweek of the employer's non-exempt employees doing nonexempt work, then the exemption is lost. (Here, by the way, is the key to your question: Is the time your employee will work away from outside sales non-exempt?) However, work performed incidental to and in conjunction with the employee's own outside sales or solicitations, including incidental deliveries and collections, is not regarded as non-exempt work, Training or supervision is considered non-exempt work. As you can see, the DOL's regulations in this area are quite complex. You should consult your favorite labor and employment counsel with any questions that you may have.

Contractor Harassment

With respect to a company's liability in the area of workplace harassment and independent contractors--how far must an employer extend its communication to these independent contractors? In other words, it certainly is possible to include the harassment policy in the contract, but do you also need to include them in your training? If someone claims harassment of one of the company's independent contractors, how real is the company's liability?

A: Three things:

1) Do not count on the independent-contractor nature of the independent contractor as a defense to discrimination or harassment charges. A court could conclude that the person is really an employee. (Hey, the court could get it wrong, but that would be of little comfort to you.)

2) Employees harassed by an independent contractor could still sue the employer. While the liability may not be strict liability to the employer (as it might be when an employee is harassed by a supervisor), the issue would come down to whether the employer took sufficient action to prevent the harassment. In such a case, having the contractor agree to attend training and abide by your policies can only help.

3) If the employee harasses an independent contractor, your company could still be liable. Once again, having the contractor agree to attend training (where the contractor is advised that we do not tolerate it and s/he should report it immediately) could only help.

Saturday School

Q: Could we as an employer get ourselves into a legal situation by issuing a policy stating that exempt employees who work on a Saturday must take a comp day during the following week, AND, if they cannot schedule themselves for a comp day, they will be paid a flat rate for working that Saturday? (These employees are managers who also do the scheduling).

A: You asked, "Could we as an employer get ourselves into a legal situation" if you compensate exempt employees for "overtime" work by either paying them a flat fee or making them take a day off. The short answer is that ANYTHING you do vis-a-vis exempt employees could POTENTIALLY get you into a legal fix. Having said that, and recognizing that you have to check with your state wage and hour division to see about state law, there would not seem to be a problem with setting a policy that says exempt employees will get either a comp day or X dollars for weekend work. We would make sure that the amount paid does not equal an hourly wage, as it makes the employee look like he/she is non-exempt. We see no problem with either giving the employee a choice or with requiring a comp day be taken first and pay only if no comp day can be taken because of business needs.