Recently in Overtime Category

March 14, 2014

What is it exactly that President Obama wants to do to the FLSA?

Thumbnail image for obama.jpegSo, by now, you've likely read the news, first reported on Wednesday night by The New York Times reporters Michael Shear and Steven Greenhouse that "Obama Will Seek Broad Expansion of Overtime Pay".

Messrs. Shear and Greenhouse indicated that, yesterday, President Barack Obama was to the direct the U.S. Department of Labor to "revamp its regulations to require overtime pay for several million additional fast-food managers, loan officers, computer technicians and others whom many businesses currently classify as 'executive or professional' employees to avoid paying them overtime."

Possible targeted changes to the FLSA

The New York Times article suggested that President Obama would call on the DOL to raise the minimum salary level for employees to qualify for an overtime exemption. 

Currently, to fit under either the "executive" or "administrative" exemptions to the Fair Labor Standards Act, among other things, the employee must make at least $455 per week in salary. Raising that number would render fewer employees "exempt," thus increasing the pool of overtime-eligible employees.

Additionally, Messrs. Shear and Greenhouse report that "the new rules could require that employees perform a minimum percentage of 'executive' work before they can be exempted from qualifying for overtime pay." The current rules contain more amorphous standards.

A directive from the President that's long on newspeak and short on specifics

With all of this buildup, yesterday, the White House issued a "Presidential Memorandum" entitled "Updating and Modernizing Overtime Regulations." The memo contains nothing as specific as reported in The New York Times. Instead, it contains an overview of the Fair Labor Standards Act followed by a vague directive to the DOL:

"I hereby direct you to propose revisions to modernize and streamline the existing overtime regulations. In doing so, you shall consider how the regulations could be revised to update existing protections consistent with the intent of the Act; address the changing nature of the workplace; and simplify the regulations to make them easier for both workers and businesses to understand and apply."

Quite frankly, although this is a general edict, I'm all for streamlining and simplifying an arcane law that has become a nightmare for businesses and their employees to comprehend.

Don't expect swift change.

How, specifically, the FLSA may change, is less than clear. What is clear; however, is that this process will take a lot of time. If the DOL wishes to amend the regulations supporting the FLSA, it must first propose rule changes, then entertain a public comment period, then, as necessary, tweak the changes, before finally implementing them.

Bottom line: don't expect much in the way of change to the FLSA anytime soon.

What can employers do now to protect themselves?

However, news like this, together with the growing trend in wage-and-hour claims, should serve as a wakeup call to employers. Consider taking some proactive steps, such as a retaining outside counsel to perform a wage-and-hour audit, to spot issues now, limit exposure, and reduce the risk of future litigation.

UPDATE: The SHRM A-Team has released this update on the proposed changes to the FLSA.

February 14, 2014

3 minor leaguers claim Major League Baseball violated the Fair Labor Standards Act

mlbstadium.jpgWhen you think of minor league baseball, you may draw on movies like Bull Durham or The Rookie; long bus trips from stadium to stadium where teams play in front of small crowds for small pay.

Well, apparently, the pay may be small enough to trigger a violation of the Fair Labor Standards Act

As pitchers and catchers being to report for Spring Training, Craig Calcaterra at NBC Sports HardBall Talk reports here that three minor league baseball players have initiated a putative class action in federal court against Major League Baseball, among others. In the Complaint (copy here), the plaintiffs allege violations of the FLSA stemming from the failure to pay minimum wage and overtime for working more than 40 hours per week.

Over at CNNSI, Attorney Michael McCann, discusses the case here and notes that the defendants are not without defenses:

Baseball will argue that professional athletes are not entitled to overtime pay. The life of a professional athlete commands atypical hours and an arduous work schedule. Some of this work may also be more in line with a player's own professional development than his employment. Baseball will surely cite case precedent and Department of Labor Wage and Hour Division materials that support an argument that minor leaguers are exempt from wage and overtime benefits. Baseball might stress that under the FLSA, "professional employees" are usually exempt from FLSA benefits and that classification includes those who perform original or unique work.

Indeed, the FLSA has a seasonality test, which could exempt baseball teams from having to abide by the minimum wage and overtime requirements. 

Here is a case in which the Sixth Circuit Court of Appeals determined that the Cincinnati Reds did not qualify for the exemption. And here is a case where the Eleventh Circuit determined that a minor league baseball team did meet the exemption.

How this one will turn out is anyone's guess. But, I'll keep a close eye on this one for you.

December 13, 2013

Your President/CEO may have to pay your company's wage and hour debts herself

MacGyver.jpgWell, that certainly sucks. Even worse than the time I found out that Santa Claus MacGyver wasn't a real person.

(My psychiatrist says that there's a light at the end of the tunnel. I'm not so sure...)

But seriously, I thought that the purpose of a limited liability company was to insulate members from the debts of the company.

After the jump, see how that rule doesn't necessarily apply when an LLC fails to pay minimum wage or overtime...

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October 18, 2013

Does the FLSA require paying employees who wait in security lines at work?

True story.

Back in 1999, when I was in law school in Washington DC, I went with my buddy to see The Matrix at the Uptown Theater in Cleveland Park. At the time, the Uptown was one of the best places around to watch an action flick. And what better movie to see than The Matrix -- one of my top 10 movies of all time.

WTH does this have to do with the Fair Labor Standards Act? 

Uh, duh...

[Humor me and click through, would ya?]

Continue reading "Does the FLSA require paying employees who wait in security lines at work?" »

September 16, 2013

Lady Gaga may owe her former assistant a lot of unpaid OT

meatdress.jpg

We're talking a lot of money honey.

[Bravo, Eric. You couldn't even make it one line without a stupid Gaga pun].

Pun free after the jump...

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May 20, 2013

GUEST POST: Wage Theft Quietly Becoming a Major Problem in Today's Workplace

guestblogger.jpgToday we have a guest blogger at The Employer Handbook. It's Jesse Brar. Jesse is a Utah Employment Lawyer at Preston & Brar.

(Want to guest blog at The Employer Handbook? Email me).

Continue reading "GUEST POST: Wage Theft Quietly Becoming a Major Problem in Today's Workplace" »

May 10, 2013

House passes bill permitting employees to swap OT for comp time

Schlangenmädchen Neyenne Circus BelyOn Wednesday, the U.S. House of Representatives voted 223-204 to pass the Working Families Flexibility Act of 2013, which would amend the Fair Labor Standards Act to permit employers to provide compensatory time off in lieu of monetary compensation for overtime hours worked. Presently, through the Federal Employees Flexible and Compressed Work Schedules Act, only state and federal employees may receive comp time in lieu of OT.

Specifically, the Working Families Flexibility Act authorizes compensatory time off at a rate of no less than one and one half hours for each hour of overtime worked. Under the FLSA, employers must pay OT at a rate of no less than one and one half the employee's regular rate of pay. Republicans contended the measure would allow parents to spend more time with their children. House Democratic Whip, Steny Hoyer [D-MD] has hyperbolized that the Working Families Flexibility Act "would eliminate the 40-hour workweek as we know it."

It should come as no shock, then, that House passage was basically along party lines. And, even if it somehow passes the Senate, the President would likely veto the bill.

April 17, 2013

Employee caught in a pick, Supreme Court scratches her FLSA claims

** drops microphone, walks off stage **

Fine, I'll play a quick encore.

In a case decided yesterday, the U.S. Supreme Court in Genesis Healthcare Corp. v. Symczyk (opinion here) held that if a plaintiff who brings a claim under the Fair Labor Standards Act on behalf of herself and her co-workers rejects an offer of judgment from the defendant that would fully satisfy the plaintiff's own personal claim, then the entire case gets dismissed unless the plaintiff can demonstrate a personal interest in representing the unnamed claimants.

They call this a "pick off" of the lead plaintiff and, yeah, I shouldn't have played that encore. I told my manager. I says, "Charlie, I don't do these FLSA collective action cases. But no....." 

Charlie's gonna get an earful from me...

February 19, 2013

Manager's drunk Facebook threats + Boss's Buddha blogging = retaliation claim?

CoyoteUgly.LYH No body shots here; just a swift federal court kick to Coyote Ugly's social-media jewels.

You get the ice. I'll pour a double and serve up the details after the jump...

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November 7, 2012

Paying banana boxes of food as OT is not an a-peeling option

bananas for those cramps[brrrring brrrring]

"Eric Meyer."

"Uh, yeah, Eric. I just learned that we've got facilities managers who have been working overtime 'off the clock' and...."

"Off the clock, you said?"

"Yeah, and instead of paying time-and-a-half---"

"Yes......"

"We've been giving them banana boxes."

"Did you say, banana boxes?"

"Yes."

"Hold please."

[Chuckles. Calls in five colleagues. Puts phone on speaker]

"Say that again. Sloooooooowly."

"Yeah, we've been giving banana boxes of food to employees who work off-the-clock overtime. Is that, uh, ok?"

"You're f***ing with us, uh, me, right?

"No, really."

"Ok."

"I'm going to email you this case I read yesterday from the Northern District of Mississippi. Wouldn't you believe that these two facilities managers were working 'off the clock' OT and getting paid with banana boxes of food. Yadda yadda yadda. You're screwed."

Folks, don't monkey around -- couldn't resist again, could I -- with OT. Non-exempt hourly employees work over 40 hours in a workweek; it's generally best to pay them time-and-a-half...in money.

August 30, 2012

Kiss the "fluctuating workweek" OT method goodbye in PA

kiss.jpgmmmmmmmmmmmmwah!

What is the fluctuating workweek method of overtime compensation? Why is it no longer good in PA? And why should you care?

I answer all of these hard-hitting questions -- like a BOSS -- after the jump...

Continue reading "Kiss the "fluctuating workweek" OT method goodbye in PA" »

August 13, 2012

Peanut butter cups for everyone! Thank you, Third Circuit!

Reese's!After seeing Fatboy Slim perform in a bubble at the Olympics Closing Ceremony, I had trouble falling asleep last night. 

I tossed. I turned. But, I eventually drifted off into a deep sleep; a wonderful slumber. I dreamt that the Third Circuit Court of Appeals decided two cases under the Fair Labor Standards Act (FLSA), and then I blogged about them in a single blog post. Like peanut butter and chocolate, it was the Reese's Peanut Butter Cup of blog posts.

What a sweet, decadent dream. Or was it a dream? Find out after the jump... 

[Hint: no dream, no chocolate, just two FLSA decisions (one of which I'll blog about tomorrow, because I ramble a bit after the jump, much like I'm droning on now). Maybe this is all just an excuse to play Katy Perry. Yeah, this all makes sense. About as much as having Russell Brand sing "I am the Walrus" from on top of a psychedelic VW bus in front of a worldwide audience of millions. Just jump.]

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July 17, 2012

Retaliatory voodoo, Courtney Love, and lots of unpaid $$$

Sounds like a bad batch of Pennyroyal Tea. Just another Tuesday here at the ole Handbook.

The San Francisco Chronicle is reporting here that Courtney Love, Kurt Cobain's widow, is reuniting the band ** thank you for sparing our ear holes ** being sued by a former assistant seeking, among other things, unpaid overtime. The plaintiff also claims that Love asked her to perform voodoo rituals ** not yet, next paragraph ** unethical duties such as hiring a hacker and forging legal correspondence. The San Francisco Employment Lawyer Blog has more on this case here.

From Hole to holes in a doll pin-cushion, with a hat-tip to @ChaimBook, the Madison St. Clair Record reports here that a Wisconsin woman is suing her former employer for sexual harassment and retaliation. The plaintiff claims that she was forced to look at nude female magazines, calendars and sexually explicit language used by her co-workers and direct supervisor. Fairly standard sexual-harassment fare. What makes this case blogworthy is that, after she complained, the plaintiff allegedly suffered retaliation in the form of two voodoo dolls in her desk, one of which had a black pin stuck into her chest.

Takeways:

    1. Even for the savviest employers, wage-and-hour issues can rear up from time-to-time. If you have not done so yet, or if it's just been a while, consider bringing in outside counsel to conduct a wage-and-hour audit to make sure that your pay practices are squeaky clean.

    2. Since the Supreme Court's decision in Burlington Northern, the bar has been significantly lowered as to the type of behavior that can constitute actionable retaliation. I have little doubt that a voodoo doll delivered to a complaining employee would effectively chill that employee from asserting federal-protected rights. Remind your workforce that behavior both subtle and overt can lead to a retaliation claim. 

    3. Hole sucks.
July 5, 2012

Pennsylvania to relax OT requirements for hospitals

stethoscope.jpg

Last week, Pennsylvania's Governor, Tom Corbett was presented with this bill that will allow hospitals and other medical care facilities in Pennsylvania to better control the scheduling of employees to control payment of overtime. Details after the jump...

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June 29, 2012

Healthcare, what? Eyeball 3 other pending employment law bills

ThreeI heard that there was some Supreme Court decision yesterday about healthcare. Want the scoop? Google it.

They zig, I'll zag with the scoop on some other pending employment-law legislation of which employers should take note...after the jump...

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Continue reading "Healthcare, what? Eyeball 3 other pending employment law bills" »