The guys start the week by detailing the story of a Harvard professor who fought with a restaurant over a $4 discrepancy in his bill. They then answer, “At what point can I make my employees clock out but take care of non work activities at the office?”
NASIR: Welcome to the our podcast where we cover business in the news and answer some of your business legal questions that you, the listener, can send in to firstname.lastname@example.org.
Welcome. My name is Nasir Pasha.
MATT: And I’m Matt Staub.
NASIR: I don’t know why I’m very excited about this episode, mainly because we get to make fun of another attorney. I think that’s what it is.
MATT: Yeah, you do enjoy that so I could see why you’re excited for this and I think this has actually gained some… people have heard about this – I don’t know – in the past week. Maybe by the time this episode comes out, more people would have heard of it and there’s more of a resolution to it.
MATT: So, there’s this professor at Harvard Business School who went to this Chinese restaurant and ordered roughly $53.00 worth of food. I think there was an exact number – $53.35 of food.
NASIR: Yeah, in case you were wondering, he ordered shredded chicken with spicy garlic sauce, sautéed prawns with roasted chili and peanut, stir-fried chicken with spicy – what is that? Capsicum? I don’t know what that is.
MATT: I don’t know.
NASIR: Braised fish fillets, Napa cabbage with roasted chili, and that’s it. Sounds like he has good taste.
MATT: It’s a lot of things, too. So, hopefully, he had more than one person with him. Or just more than just him.
So, he gets – like I said, – $53.35. He gets home, notices he got overcharged by $1.00 on every single item.
MATT: And we’ll have to link, there’s an email thread that goes back and forth between the two of them which we won’t go in full detail but it’s a pretty good read but…
NASIR: If we can, hopefully, I will just put the image in. I don’t know if we have the rights to. We’ll see.
MATT: Well, it’s kind of long, too. So, we’ll see.
But the business writes back, as it should. You know, they’re apologizing, saying… Basically, you get to the point they said he didn’t really overcharge them. The menu items on the website were off by a dollar. They had since updated it. But, despite that, he would give them the $4.00 refund for the four items because it was overcharged by a dollar on each thing. This wasn’t good enough for this Ben Edelman.
NASIR: Hold on. Technically, the restaurant didn’t offer the $4.00 refund right away. The restaurant’s first response was, “I apologize about the confusing—“ Confusion, I think that’s what he meant to say. “Our website prices has been out of date for quite some times. I will make sure to update it. If you would like, I can email you an updated menu.” Sent from an iPhone. So, he obviously didn’t put much thought into this. And then, after this guy, Harvard professor Ben Edelman, he responded with his response, then they offered a refund.
MATT: Yeah, I guess. I’m skipping over pieces because there’s a lot of stuff back and forth.
NASIR: It is, like, ten emails, for sure.
MATT: It’s an important point, though. But then, he gets into this whole legal argument and how, under Massachusetts law, you can’t advertise one price and charge something, and I think that’s where the restaurant owner says, you know, “We technically didn’t overcharge you. The items were just listed wrong. We’ll still give you the refund anyways.” And he said, you know, “According to the law in Massachusetts, you actually have to give me three times what the difference was. So, instead of $4.00, I need $12.00,” and it just goes back and forth. He, at one point, tells him he reported them to the authorities. “I’ve already referred this matter to applicable authorities in order to attempt to compel your restaurant to identify the consumers affected,” blah blah blah. Kind of the tone of the emails he sent, it’s very serious. Looks like something an attorney would write back and forth to people over some sort of serious matter. The only problem is this is about a $4.00 overcharge. It just seems a little bit ridiculous.
If this was me and I found out it was $4.00 difference, I probably wouldn’t even do anything. I mean, I might say something – I don’t know. I probably wouldn’t, though. I would probably just brush it off and figure that, at some point down the road, I’ll get undercharged $4.00 somewhere and it all evens out. That’s kind of my philosophy on this. But he goes back and forth with this restaurant owner and, like I said, we’ll have to link this because it gets pretty ridiculous – some of the things that this guy says.
NASIR: Yeah, and they start focusing on the website and then – I’m about to go on a rant here; I guess I might as well start somehow, somewhere. Okay. So, first of all, it’s very clear – without a doubt – that any attorney that’s reading this exchange of emails that this guy is not practicing, I mean, in the sense that he’s saying stuff that doesn’t make any sense. You know, as an attorney, as a practitioner, you always have to be looking at end result and objective here. This guy obviously doesn’t seem to have an objective besides getting his $12.00 and making a fuss out of things. But let’s put that aside for a moment, too.
You know, as an attorney, I’m sure you kind of have this kind of same thoughts. When you’re out in the world and you come across things and any time where you’re not treated the way that you’re supposed to be treated whether it’s through customer service or whatever, you do have a legal hat on – you know, you put it on, you’re thinking, like, “They’re breaking the law here. This is unjust,” or whatever, “What am I going to do about it?” But the difference between us and this guy is that we don’t take it to the Nth degree.
Another thing is that this attorney is unfortunately classic of what is at risk to businesses throughout the United States – that this attorney is obviously the stereotypical ridiculous lawyer-type that you would see on TV – like “Better Call Saul,” you know – but the problem is that this is actually very common and even for the silliest minor thing, this is going to happen.
Now, the question is, how did this business owner respond? That’s why I wanted to clarify that his first response was not, like, “Okay, let me give you the $4.00 back,” which that’s what it should have been. But, instead, he kind of said, “Okay, let me give you the updated prices,” and then that’s when it kind of escalated.” And then, even down the line, when he asked for $12.00 – $3.00, sorry – I will honor the website price and honor you the $3.00 and then he comes back and he’s like, “No, I don’t want that, but it’ll be four, twelve,” and back and forth. It’s like, “Just give him the money and this would have been done.”
MATT: Yeah, at first, the restaurant didn’t offer a refund and, you know, that’s kind of a common thing if you work at a business – especially a restaurant – that the view is the customer is always right. So, in this instance, I’m just thinking what I would have done. If someone would have wrote this to me, I would have refunded him the $4.00, and even if he came back and said, “Oh, actually, I need triple,” I probably would have said yeah. The $12.00, I mean, it’s not going to make or break me, especially the amount of time that’s spent. The guy was complaining spending way more time than the restaurant because I think a lot of the restaurant responses are pretty short and possibly even sent from their phone. So, you know, they’re not spending a ton of time, but it’s still time and it’s still you can make that $8.00 difference up pretty easily but the guy who was complaining can make that $4.00 difference up. I’m still definitely siding with the restaurant in this situation, but…
NASIR: Oh, yeah, for sure.
MATT: It’s kind of ridiculous and you make a good point, too. It’s very difficult, as an attorney, to not think from a legal perspective in anything that happens, but I would never say these things in person or even put these things in writing. It’s just so over the top.
NASIR: It kind of reminds me of, you know how when you’re a business selling stuff online and, if you sell something that’s not tracked and the customer says they never received it, right? What do you do? Because, on one hand, the customer could be lying to you; but, on the other hand, you still have a business to run and, even if the customer is doing that, you kind of just need to give them a refund or ship them another product that is tracked because the worst case scenario is that they start blabbing their mouth on the internet just like this guy and it kind of puts your business in a false light.
Now, then again, I don’t think the business is losing out on this. I mean, I think every business owner can sympathize with somebody that hasn’t updated their website in a few years with their prices. But that’s one reason not to put prices on the internet, but different issue.
MATT: For a restaurant, you kind of have to.
NASIR: Yeah, you have to put your menu up, but then you have to update it, right?
MATT: Well, you don’t go to Yelp but when I go to Yelp and I see…
NASIR: Nobody goes to Yelp anymore. It’s done.
MATT: It’s done. It doesn’t exist anymore. Well, if this guy uses Yelp, then it probably will be over because they’ll probably just stop dealing with him. He actually did the same thing to another or similar thing that I stumbled across in 2010.
NASIR: Are you serious?
MATT: Yeah, about a company that wouldn’t honor his Groupons that he had.
NASIR: Oh, gosh.
MATT: So, it was another exchange back and forth. He just handles it and, I mean, this is something that all of us have dealt with at one point or another.
NASIR: But it’s how you handle it, right? Businesses – whether intentionally or unintentionally – make these mistakes all the time. You know, whether something breaks, you need to return it and you go through these customer service and so forth. As lawyers, we have the advantage of using the law and understanding the law to our advantage to be able to get what we deserve. But then, taking it to the Nth degree and making a spectacle about it and getting on your moral high horse as if you’re fighting the fight so to speak, I just think it’s too much, right?
MATT: Yeah, it definitely is, and this other that happened a few years ago is probably worse – from both sides.
NASIR: What is it?
MATT: He handles it worse and the restaurant handles it pretty poorly as well.
NASIR: What happened?
MATT: Well, I didn’t read the whole thing but basically there is a couple of Groupons that he tried to use and the restaurant’s saying it’s not valid for their prefixed menu – you know what I’m talking about?
NASIR: I have no idea.
MATT: Just, like, a set menu – like a special sort of thing. You’ll see it a lot for, like, a Valentine’s Day prefix. Yeah. So, he was trying to use it for that, the restaurant wasn’t allowing it, he’s reporting them. They basically say, “Good luck!” and “Get out of here.”
NASIR: By the way, those laws, that Massachusetts law about trouble damages or triple damages for basically charging something else other than what’s marketed or advertised is pretty much in every state that I know of and I think there’s also some federal laws that may apply as well. So, I mean, what sucks about it is that, on one hand, he’s probably right from the legal perspective, but more the reason why the restaurant should just pay him the $12.00 or should have just paid him the $4.00 right away. In fact, that’s what I would do; I would just pay him the $4.00 and then, if he wants to pursue the rest, then he can go ahead and do so.
MATT: The smart move would just be to say, “Hey, we’ll give you store credit or give you a free thing,” and then he’s coming back because he’s going to spend way more than the $4.00 or the $12.00 so then you’re actually making more money off of it.
NASIR: In fact, that’s a general rule. If you complain at all, usually, restaurants especially will give you something for free. You don’t really need to escalate more than that.
MATT: I haven’t paid for a meal at a restaurant in years. I can always find problems.
He did issue an apology on his website which is a couple of sentences, the last one being, “I reached out to Ron,” – Ron? Ran? – “I reached out to Ran and will apologize to him personally as well.” So, I guess he reached out to him but also will apologize to him. I don’t know what that means, but…
NASIR: It sounds like he either may have lawyered up or maybe got a marketing company on his side on how to deal with this.
MATT: So ridiculous but, yeah, I don’t know.
NASIR: But, frankly, this is why I hate attorneys. They’re just horrible, horrible people.
MATT: We’ve spent enough time on him so let’s just move on to the question of the day.
NASIR: Okay, question of the day.
MATT: “At what point can I make my employees clock out but take care of non-work activities at the office?”
NASIR: What kind of non-work activities are going on at the office, I wonder.
MATT: Non-work activities.
NASIR: Breaks and lunch, I guess?
MATT: Yeah, I’m looking at it from the perspective of someone who’s clocking out for the day and then they still have to take care of other things before they can leave. We talked about this a long time ago – well, I don’t know how long ago – a time ago about the Amazon case which actually just got decided in the Supreme Court. Actually, was that…?
NASIR: Yeah, it was Amazon.
MATT: How they were making their employees clock out at the end and then go through a rigorous security, like, up to thirty minutes at times, right?
MATT: Because they don’t want people stealing things.
NASIR: And we talked about it – and this was, I think, when we talked about it – it was right after the ninth Supreme Court decision and it was appealed from there, and I think the ninth circuit said that the employees needed to be paid, especially if, you know, twenty, thirty minutes. Was it twenty, thirty minutes total?
MATT: Yeah, I can’t remember exactly, but it was still a significant amount of time. The Supreme Court – and, at the time, we actually thought that it wasn’t fair. Well, I don’t want to speak for you, but I thought it wasn’t fair to the workers who had to stay there an extra thirty minutes.
NASIR: Well, I think we both predicted that the courts would find that the employees, we applied the standard that employees were under the control of the employer at the time and it was for the benefit of the employer and, therefore, the employee should be paid for that. Of course, that’s the conservative opinion but – uh oh – we ended up being wrong – well, at least according to the Supreme Court.
MATT: The Supreme Court held that the time spent for screening was not compensatable times. Applying the precedent, the court notes that the compensatable period during the work day stops once the last activity that is integral and indispensable to the job’s principle activity is performed. So, in this case, the principle activity for which the employees were employed was retrieving and packaging goods in the warehouse. So, once that was over, that’s where the cutoff was and anything after that, which would be the screening, was not integral and indispensable to their primary activity performed, if people can follow that.
NASIR: I saw that part and I wish I’d read the entire holding because this was a unanimous finding, by the way, by all the justices. So, there is no ambiguity as to what the law is in this regard and this is a big win for Amazon, I would say. But – I don’t know – there seems to be something off about that, right? Perhaps, if the lines at the security were a little bit more efficient then it would sense. But I think what made it more of an issue is that it would take a while to get out. Without that, then maybe this wouldn’t even be a topic.
MATT: I mean, all you have to do is kind of just stagger – even a couple of minutes – just stagger the way people clock in, clock out. You know, you start at 7:00 and 7:05, 7:10, and then at least that way, because how I’m imagining it is, you know, it’s 5:00 or whatever time they leave and everyone just rushes to the exit to get their screening and leave. So, if people that get there last are stuck in line.
NASIR: Exactly. Going back to the question, “At what point can I make employees clock out but take care of non-work activities at the office?” it seems like non-work activities – whatever that means – that definition has been expanded a little bit by narrowing it to being “integral and indispensable to the job’s principle activity.”
MATT: I would think, if they clocked out and then they have to copy some things, that’s still going to be part of their principle activity. But, an example I just thought of, “What if they clock out and then have to wash the coffee mug that’s there or something?” it’s not integral to their principle activity, but maybe it’s something they have to do. I don’t know.
NASIR: And it’s part of their job requirement.
MATT: It’s just a policy in the kitchen that says you have to wash your stuff after you use it.
NASIR: And the problem is that that question will never be answered because it’s so insignificant how much time it takes to clean a mug and anything that is significant – like, if they had to do all the dishes – then it seems like, okay, that should be obviously included because it’s obviously important for the employer for that to occur and it seems like that’s part of your job description and principle activity to clean dishes, right?
NASIR: So, I don’t know.
MATT: Unless you work at a restaurant.
NASIR: Yeah, that changes things. Well, that’s the Supreme Court decision so you have to follow it, Amazon employees.
MATT: You don’t have to. People break the law all the time.
NASIR: No, no, you have to.
MATT: I would just advise these employees just to steal things then if they’re not getting compensated. Steal thirty minutes’ worth of stuff.
NASIR: Exactly. Or, instead of doing thirty minutes’ worth of stuff, you can just save your time and after, like, six months, you can steal something big twice a year.
MATT: Let your time accrue and then you can just take something like a drone that they have.
NASIR: Keep good records of that, though.
Okay. Well, thanks for joining us on this long Monday episode where we get to make fun of attorneys and also be wrong once in a while with our prediction with the Supreme Court. They’re wacky over there.
MATT: Yeah, it happens.
NASIR: Keep it sound and keep it…
MATT: Don’t take my line. Keep it sound. Keep it smart.