Employment & Labor Insider

Happy Friday. Certain people in my firm really, really wanted me to write a blog post with an “eclipse” theme. In case you were not aware, we are going to have a total solar eclipse on Monday. Or at least some of you are. I’m not in the "path of totality," so I guess that means I’ll have a little eclipse but compared with what our friends in Dallas, Carbondale, Cleveland, and Niagara Falls will see, nothing to write home about.

Speaking of writing, I had no idea how to write a blog post that tied a solar eclipse to employment law. My mind was darkened, if you catch my drift.

But then I had a sudden illumination: An “Eclipses and the Workplace Quiz!” So, here goes . . . 

How much do you know about eclipses and the workplace? Take our quiz and find out! As always, the answers will appear at the end of each question, so you can cheat all you want, and we’ll never know. And, if you make it to the end, there will be a special gift, selected especially for you.

Ready? Here we go!

Question 1: Is time spent going outdoors and watching the eclipse during the workday compensable under the Fair Labor Standards Act?

1. Yes.
2. No.
3. It depends.

ANSWER: C. According to the news, the eclipse is supposed to last about 4.5 minutes. If employees go outside to watch for 4.5 minutes and then go back inside and get back to work, their eclipse-watching time would be compensable. Also, if they perform any work during the eclipse (taking a work-related call on their cell phones, for example), then the time would be compensable.

On the other hand, if the employees are doing nothing but eclipse-watching, followed by oohing and aahing to each other about how cool it was, for a total 30 minutes or more, the time can probably be unpaid.

Unless the employees are exempt, in which case they have to be paid in full for any workweek in which they perform any work. (There are some limited exceptions to this rule, but none of them apply here.)

Question 2: If an employer lets white employees watch the eclipse but doesn’t let Black employees watch the eclipse, is that unlawful race discrimination?

1. Yes.
2. No.
3. It depends.

ANSWER: C. If the employer is treating employees differently based on their race, then, yes, of course it is discriminatory. But if the employer is treating the employees differently for some other reason (for example, all the Black employees are FLSA-exempt, and the employer doesn’t want to let them watch the eclipse because they'll have to be paid for their eclipse-watching time, but all the white employees are non-exempt, so the employer is fine with letting them watch the eclipse as long as they do it for a minimum of 30 minutes without performing any compensable work, then that would not be discrimination based on race).

The things you learn here, am I right?

Question 3: If a male employee and his female co-worker are watching the eclipse, and when it gets dark, the male employee takes the opportunity to pinch his co-worker on the behind, is that sexual harassment?

1. Yes.
2. No.
3. It depends.

ANSWER: C. If the pinch in the dark is unwelcome to the co-worker, then that would be sexual harassment. But if she had a crush on him and was thrilled that he did it, or if they were already in a consensual relationship, then it would not be harassment. Unprofessional, yes. Harassment, no.

Question 4: Mary’s employer has announced that no one will be allowed to take a break from work to go outside and watch the eclipse. Mary and her co-workers think this is stupid, so Mary volunteers to go to their boss about it. Her boss replies, “Fine. Your resignation is accepted. We wish you the best in your future endeavors.” Is this unlawful retaliation?

1. Yes.
2. No.
3. Yes and no.

ANSWER: C. Complaining about not being allowed to watch an eclipse is not normally legally protected activity. (Although I wouldn't recommend firing someone for this reason.)

However . . . Mary could have a valid claim under the National Labor Relations Act. She was going to her boss about a "term and condition of employment" and was acting on behalf of a group of her co-workers. That's probably enough for her to have a valid claim that she was terminated for engaging in protected concerted activity. (Please note that this applies to non-union, as well as union, workers.)

Question 5: Doofus looks straight at the eclipse without any eye protection, and as a result he is blinded. Is he now protected by the Americans with Disabilities Act?

1. Yes.
2. No.
3. It depends.

ANSWER: C. If the blindness results in a relatively longish-term visual impairment that can't be fully corrected with ordinary eyeglasses or contact lenses, then yes. But if Doofus's blindness lasts only a few hours – or even a few days or weeks – followed by a return to normal or correctable vision, he is unlikely to be protected by the ADA. 

HOW'DJA DO?

4-5 correct: Great job! You are more brilliant than the un-eclipsed sun!

2-3 correct: Not bad! You are a solar flare!

0-1 correct: Ugh. Total eclipse of the sun. Not even a penumbra.

Just kidding! You all did great. And here is that special gift I promised you:

Your very own eclipse 2024 T-shirt! Wear it proudly! (And don't forget to use eye protection on Monday.)