The Employer Handbook Blog

Supreme Court: No overtime pay for pharmaceutical sales reps

June 19, 2012 | by Eric B. Meyer

Thumbnail image for Supreme Court.jpg Under the Fair Labor Standards Act, a company must pay overtime to non-exempt employees who work over 40 hours in a particular workweek. Non-exempt, huh? That implies that the FLSA also contains various exemptions from overtime pay for employees who meet those requirements. Indeed it does. One of those exemptions is called the “outside sales” exemption. To qualify for the outside sales employee exemption, all of the following tests must be met:

The employee’s primary duty must be making sales (as defined in the FLSA); and
The employee must be customarily and regularly engaged away from the employer’s place or places of business.

The pharmaceutical industry is chock full of sales representatives whose job it is to go to doctors’ offices and convince physicians to place orders with drug makers. However, these sales reps never actually transfer title to the drugs. That is illegal in the drug industry.

So then, the question is, do these sales reps qualify for the FLSA’s outside sales exemption? Well, funny you should ask, because that’s what the Supreme Court decided yesterday (here). Details after the jump…

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HELP WANTED: Born-again Christians need only apply

June 18, 2012 | by Eric B. Meyer

I’m a firm believer that discussing religion (or politics) at work is a recipe for disaster. On this blog; however, if it’s employment-related, then that’s how we roll…

And, after the jump, we roll into Oklahoma and discuss whether it’s ok for a lighting company to require that it’s employees be born-again Christians. (Hint: It’s not ok).

(If you’d rather read about the Oklahoma City Thunder and the NBA Finals, I understand).

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Your state’s family-leave benefits probably suck!

June 15, 2012 | by Eric B. Meyer

That according to a a new survey from The National Partnership for Women & Families.

The survey compared how state-based rights and protections compare to the 12 weeks of leave for new and expecting parents provided by the federal Family and Medical Leave Act (FMLA), the protections provided by the Pregnancy Discrimination Act (PDA), and the right to express breast milk at work provided to some nursing mothers under the Fair Labor Standards Act (FLSA).

The report card covers all 50 states, plus the District of Columbia. No state earned an A. Only 1/3 scored a C- or higher, while more than 1/3 flat-out failed. The highest grades went to California and Connecticut, each earning an A-. Locally, New Jersey ranked near the top with a B+, while Pennsylvania scraped by with a D.

Fact or Fiction: Disabilities under the ADAAA cannot be episodic

June 14, 2012 | by Eric B. Meyer

That’s right folks. It’s time for another edition of “Fact or Fiction” a/k/a “Quick Answers to Quick Questions” a/k/a QATQQ f/k/a “I don’t feel like writing a long blog post.”

So, let’s get right to it. In Pearce-Mato v. Shinseki, decided earlier this week, a Pennsylvania federal court reminded us that episodic impairments may, indeed, be disabilities under the Americans with Disabilities Act Amendments Act:

The fact that the periods during which an episodic impairment is active and substantially limits a major life activity may be brief or occur infrequently is no longer relevant to determining whether the impairment substantially limits a major life activity … An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

4 pending bills that could change the NJ employment landscape

June 13, 2012 | by Eric B. Meyer

One of my favorite reads on NJ employment law is Ogletree Deakins’s New Jersey eAuthority. The June 2012 issue highlights several pieces of legislation now pending in NJ of which employers should take note. I’ve summarized four of them after the jump…

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Employer’s failure to investigate harassment creates retaliation claim

June 11, 2012 | by Eric B. Meyer

If an employee complains that her supervisor is sexting her, making unwelcome physical contact, and telling her that she can get a better work schedule in exchange for “small favors,” you better damn well investigate that!

Ignore it and you risk losing a valuable defense to sexual harassment claim. This is because, generally, to avoid liability for sexual harassment, an employer must demonstrate that it undertook reasonable care to prevent and promptly correct harassment.

But the failure to investigate could cost an employer even more. Like a dead-to-rights retaliation claim too.

Really? Retaliation too? Yes. I’ll explain after the jump…

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The teacher who blogged about her “dunderhead” students is back!

June 8, 2012 | by Eric B. Meyer

And she’s making news again…

It’s been nine long months since I blogged about a favorite of The Employer Handbook: Natalie Munroe. You can read about her here, here, here, and here.

She is the PA teacher who, on her blog, described her students as argumentative f*cks who may engage in Columbine-style shootings. She got suspended, but was later reinstated, and taught during this school year.

Do employees have protected privacy rights in Facebook postings?

June 7, 2012 | by Eric B. Meyer

John and Mary are co-workers. They are also Facebook friends. And both John and Mary have adjusted their respective Facebook privacy settings such that only Facebook friends can view what they post online from their individual accounts. Consequently, John and Mary can view each other’s Facebook posts, but Sam the Supervisor, who is also on Facebook, cannot. Neither John nor Mary are Facebook friends with Sam.

ABC Company, John and Mary’s employer, wants access to Mary’s Facebook account. On behalf of ABC, Sam demands that John login to his Facebook account on a work computer and then allow Sam to shoulder surf as John views Mary’s Facebook postings. Fearing for his job, John relents.

Does Mary have a claim against ABC Company for invasion of privacy?

The answer follows after the jump…

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Paycheck Fairness Act fails in the Senate, plus other news…

June 6, 2012 | by Eric B. Meyer

Billed as a way to provide more effective remedies to victims of discrimination in the payment of wages on the basis of sex, the Paycheck Fairness Act, did not make it out of the Senate yesterday. The Paycheck Fairness Act earned 52 votes in favor of proceeding to final consideration, eight votes shy of the 60 votes necessary for cloture. The vote came down strictly along party lines, with the two independent senators voting with the Democrats and Sen. Mark Kirk (R-Ill.) not voting. Senate Majority Leader Harry Reid (D-Nev.) changed his vote so that he could bring the bill up again.

In other news…

The Eleventh Circuit Court of appeals ruled on Monday that Title VII of the Civil Rights Act of 1964 permits claims for retaliatory hostile work environment. The decision brings the Eleventh Circuit in line with everyone else.

No flush, but two of a kind win in a workplace toilet dispute

June 5, 2012 | by Eric B. Meyer

Hey employers! You know what’s stupid? ~~My tongue-in-cheek pun on despicable workplace conditions~~. Depriving employees of bathroom privileges. Even dumber is firing them after they complain to state regulators about the lack of an onsite toilet.

One company recently learned this lesson the hard way. Details after the jump…

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