A company that chooses to "go green" would seem to be making an energy-wise, resource-saving and cost-effective decision. But when that decision plays out in changes to employment policies and practices, there may be unintended consequences. Employment law has yet to catch up with the greening of corporate America, increasing an employer's risk for litigation. As a result, green programs can drag employers into unfamiliar legal waters, making it prudent to test the depths and currents of those waters before plunging in.
"You can go down this wonderful road to make the world a better place and all of a sudden become a victim of a lawsuit," says Joshua Davis, shareholder at Ogletree Deakins.
Two types of programs that can help employees reduce their carbon footprints exemplify the potential pitfalls for well-intentioned, environmentally conscious employers: telecommuting and employer-facilitated car pooling. While intended to encourage environmentally friendly behavior, such policies also are redefining what constitutes the workplace and testing the scope of wage-and-hour laws with virtually no case law to use as a barometer.
"As green policies evolve, the interactions of those policies with laws that govern the workplace will be tested in the courts," Davis says.
Workplace Without Borders
The rapid development of laptop computers and personal communication devices has facilitated telecommuting, enabling many employees to work efficiently from home and avoid the carbon-generating commute. But this green strategy, when extended to nonexempt workers, potentially can lead to costly litigation under the complicated wage-and-hour provisions of the Fair Labor Standards Act (FLSA) and related state laws.
"Mobile communication devices have changed the way we all work, and that's inconsistent with a system of wage laws premised on the notion that people come to work for eight hours and go home," Davis says. "I wouldn't go so far as to call the FLSA archaic, but it's not modern in this respect."
When an employer allows a nonexempt employee to work from home, it's not sufficient for the employer to simply ask the employee for the total number of hours he or she worked for the day.
"The employer needs the employee to keep track of his time just as he would at the office, having him log in and log out, and paying him for short breaks in accordance with state and federal law," says Jonathan Segal, a partner at WolfBlock. "While you want to give employees flexibility to work from home, you still have to manage the breaks and total hours. Otherwise you might end up owing them money."
Telecommuting can create a record-keeping nightmare while issuing an open invitation to overtime.
"In the pre-computer, pre-BlackBerry days, you came to work, sat down, worked throughout the day and then went home, had dinner with your family, read or watched TV," Davis says. "Now you make business phone calls from the supermarket parking lot, or the BlackBerry goes off in the middle of dinner. Technology sometimes makes you feel it's imperative to work outside the normal hours of your workday."
As an employer, you might think more work is getting done. "But if you're an employer concerned about compliance with wage-and-hour laws, you're thinking, 'This is really hard to keep track of,'" Davis says.
Employers sometimes overlook two significant factors--de minimis time and the "continuous work day rule"--that complicate tracking a worker's hours.
"If I spend 20 seconds looking at my BlackBerry and say, 'See you at 9,' that's probably so de minimis you don't have to compensate it under federal law," Segal says. "But what de minimis is cumulative? If I do one of those things a hundred times a week, do you have to compensate me?"
No one knows for certain. However, compensation for a continuous workday is a bit clearer.
If a nonexempt employee starts her day at 6 a.m. by using her laptop and stops working at 9 p.m., the last time she uses her laptop, under the continuous workday rule she generally must be paid for the entire time, except for breaks that are at least 30 consecutive minutes. If the employee takes only short 15- or 20-minute breaks, the employer must pay the employee for the entire time, from 6 a.m. to 9 p.m. If the employee takes one or two longer 30-plus minute breaks but does not record them, the employer could still be required to pay the employee for the entire time, since employers are obligated to keep records documenting the hours their nonexempt employees work.
"We have an outdated statute--FLSA--that doesn't apply to the world in which we operate today," Segal says. "Until the statute is changed, and that's not likely to happen soon, employers need to be careful of and sensitive to these risks."
The law is even sketchier when it comes to car pooling. In general, experts agree that the further it is removed from a car pooling program, the smaller the chance of an employer being exposed to liability. Employers that help arrange car pools or that provide a company vehicle for car pooling employees may risk exposure if there is an accident or a claim of sexual harassment during the ride to and from the workplace.
"Employer liability is going to turn on specific state law," says Brian Jackson, an associate at Fisher & Phillips. "A handful of states have outright said the employer has no liability for certain acts dealing with car pooling." In Missouri, for example, an employer is not liable for injuries to passengers resulting from the operation or use of a motor vehicle not owned, leased or contracted by the employer in a ride-sharing arrangement.
With no significant case law to guide counsel, it's a guessing game as to how a judge might rule in a harassment suit involving two employees whose company encouraged them to car pool.
"We know already that in employer-sponsored entertainment circumstances, the company Christmas party, for example, employment laws reach those events," Davis says. "So, could you argue by extension that those laws should reach the car pool? Maybe."
Until the law catches up, how an employer guards against potential litigation when going green may be confusing.
Davis advises establishing clear expectations for when and where employees will work and what computers or PDAs they will use. Then they should electronically monitor compliance.
As for car pooling, he says employers can encourage participation in fuel-saving programs but probably should not mandate participation.
"As we lose our traditional notion of the workplace, laws that govern what happens in that traditional workplace are going to be stretched into places where they didn't originally extend," Davis says. "Green can be great, but it can also come with a few hassles."