February 2007 E-Alert
EXPECTATION OF PRIVACY IN THE WORKPLACE

On January 30, 2007, the Ninth Circuit Court of Appeals, with jurisdiction over the Western United States, handed down its decision in the case of U.S.A. v Zeigler. Zeigler was a criminal case concerning an employer’s cooperation with an investigation by a governmental agency. The holding went beyond criminal investigations and reinforced the importance to companies of maintaining a comprehensive policy notifying employees they have no expectation of privacy in the workplace that would, in any way, prohibit, prevent or otherwise interfere with the employer’s right to monitor, search and/or seize anything within the employer’s facility, including, but not limited to: computer/electronic communication hardware; computer usage and/or internet access data; files, electronic files, office space, lockers, desks, etc. Such a policy serves as a strong defense to an employee’s assertion of a subjective or objective expectation of privacy in the workplace and, therefore, significantly strengthens an employer’s position with respect to an invasion of privacy-type claim. Absent such a policy, an employer may be exposed to liability for actions taken in the course of internal employee investigations.  

The Lowenbaum Partnership would encourage all of you to review your current policies and, if necessary, consider amendments to those policies. Obviously, we stand ready to consult with you should you require some direction.  

INCLEMENT WEATHER PAYROLL FAQs  

On days like yesterday, our firm receives numerous telephone inquiries regarding proper payroll procedures during inclement weather. We thought it would be helpful to provide you with guidance by issuing some frequently asked questions. Please be advised this guidance was developed for compliance with the federal Fair Labor Standards Act (FLSA). You should ensure your payroll practices comply with both federal and applicable state law. Some state laws provide greater benefits to employees, and in the event your facility is unionized, you should also consider your collective bargaining agreement.  

Q. Is an employer required to pay hourly employees if the employer closes its facility for the day due to inclement weather?  

A. No. An employer is only required to pay hourly employees for actual hours worked. Depending on the employer’s employment policies, the employer may consider allowing employees to use any accrued leave.

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Q. If an hourly employee is scheduled to work until 5:00 p.m. and the employer decides to let everyone off early because of inclement weather, does the employer have to pay the employee?  

A. No. An employer is only required to pay hourly employees for actual hours worked. Depending on the employer’s employment policies, the employer may consider allowing employees to use any accrued leave.

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Q. An employee called off work today because of inclement weather. The employee is requesting to use a vacation day. Can the employer require the employee to come to work?  

A. Yes. An employer can require an employee to report for a scheduled shift or face appropriate discipline. As a practical matter, employers should take into consideration safety issues during inclement weather.

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Q. If a salaried exempt employee requests to leave work early because of inclement weather, can the employer deduct from the employee's pay for the portion of the day missed?  

A. No. An employer can not make partial day deductions from an exempt employee's pay without jeopardizing the use of the exemption in the future.  

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  Q. If the company is open for business, but several salaried employees have requested the day off because of inclement weather, can the employer dock them for the day?  

A. Yes. If the business is open, salaried employees’ pay can be docked for full days. This deduction is proper because the absences are considered for “personal reasons.”  

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Q. If an employer closes its business because of inclement weather, can the employer dock an exempt employee’s pay for complete day(s) the employee did not work?  

A. Probably not. An employer may not make deductions from a salaried exempt employee’s pay for absences occasioned by the employer or by the operating requirements of the business. However, an employer is not required to pay a salary to a salaried exempt employee in a workweek during which the employee does not perform any work. Therefore, if the operations were closed for an entire workweek or the employee did not perform any work during the days the business was open during the workweek, an employer would not be required to pay the employee’s salary for that week. Otherwise, the employer is required to pay the employee’s entire salary.  

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Q. Can an employer force its employees to use a vacation day if the employer decides to close its business because of inclement weather?  

A. Yes. Federal law generally does not govern or restrict an employer’s ability to manage its leave programs. Therefore, an employer may require its employees to use any available accrued leave during a business closure. However, as stated above, an employer may not make deductions from exempt employees’ salaries for absences occasioned by the employer or by the operating requirements of the business. Therefore, assuming employees perform some work during the workweek, the salaried exempt employees must be paid their entire salaries for the workweek regardless of whether the employees have any accrued leave available. Of course, hourly employees could be docked if they did not have sufficient leave to cover the absence.  

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Over the past couple of years, there has been a significant increase in FLSA litigation across the country. Thus, it is imperative that employers frequently review their payroll practices and employment classifications to ensure compliance with the FLSA and state laws. One essential tool for employers is a clearly communicated policy which prohibits improper deductions from the salary of exempt employees. By maintaining such a policy, and complying with certain other requirements, an employer may preserve the exempt status of one or more employees in the event of an improper or unlawful deduction. If you need any assistance drafting an improper deduction policy or would like assistance with your company’s FLSA or applicable state law compliance, please contact one of our attorneys.  

This E-Alert is intended as in informal summary of certain recent legislation, cases, rulings and other developments. This E-Alert does not constitute legal advice or a legal opinion and is not an adequate substitute for advice of counsel. This E-Alert is not intended to nor does it create an attorney-client relationship. The choice of a lawyer is an important decision and should not be based solely upon advertisements. © The Lowenbaum Partnership, LLC. All Rights Reserved.  

If this E-Alert is deemed to be an advertisement please disregard this solicitation if you have already engaged a lawyer in connection with the legal matter referred to in this solicitation. You may wish to consult your lawyer or another lawyer instead of us. The exact nature of your legal situation will depend on many facts not known to us at this time. You should understand that the advice and information in this solicitation is general and that your own situation may vary. This statement is required by rule of the Supreme Court of Missouri.

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