Wage and Hour/FLSA

Published on: February 9, 2015

Court Invalidates New FLSA Provision Relating to Home-Care Workers

On December 22, 2014 a federal judge struck down a new provision of the Fair Labor Standards Act (“FLSA”) that would have entitled most home-care workers to minimum wage and overtime just ten days before that provision was to take effect, according to Bloomberg BNA. As it stands, the FLSA exempts “any employee” who provides “companionship services” form the minimum wage and overtime provisions of the FLSA and also exempts “live-in” domestic service providers from the overtime provision of the FLSA. The new rule, proposed in December 2011, provoked over 26,000 public comments from industry and labor groups and others.

D.C. District Court Judge Richard L. Leon struck down provisions of the Department of Labor’s (“DOL”) new regulation that would have removed the minimum wage and overtime exemptions for home-care workers who are employed by third-party businesses, which, but for Judge Leon’s order, otherwise have made those individuals eligible for minimum wage and overtime. The Home Care Association of America and two other organizations brought suit against the DOL, claiming that the DOL violated administrative procedure in issuing this new regulation; Judge Leon agreed.

Although the D.C. District Court invalidate those provisions of the DOL’s new regulation, others remained intact. One provision that was not struck down narrows the types of duties for which home-care workers are exempt from minimum wage and overtime for “companionship services.” These services now include “only social, physical and mental ‘fellowship’ activities and ‘protection’ services, such as being present when a client is inside the home to monitor the person’s safety,” according to Bloomberg BNA. In short, this means that the number of activities for which a home-care worker will not receive minimum wage and overtime is smaller, thus making it easier for these workers to obtain these wage protections.

Continue reading →

Published on: August 21, 2014

You Just Got Fired: How to Deal in 11 GIFs

By The Erlich Law Office, PLLC

Being terminated from your job almost always comes with a huge amount of stress and emotion. There’s a lot to process, and people often want to do that processing very quickly in order to get back up and running. Every day, we see people who have lost their jobs and are understandably having a tough time figuring out where to begin. We’re here to help, and in this particular situation we’re here to help you understand with some visual aids. Here’s a guide to the firing process.

1. Be Professional: Nothing is gained by burning bridges on the way out.

Stay calm, act professionally.
2. What’s The Deal?: What are the terms of your separation? Were you fired? Did you get a chance to resign? Is there a severance package?

Continue reading →

Published on: July 29, 2014

Should Publications Pay Their Volunteer Writers?

By The Erlich Law Office, PLLC

The excellent Ask A Manager blog recently responded to a reader question about whether it is legal for publications to not pay their volunteer writers. As always with legal questions, AAM addresses the underlying issues, but avoids offering legal advice. We’ve decided to expand on legal issues here.

As readers of this blog know, the Fair Labor Standards Act guarantees that employees are paid no less than minimum wage for their work. The important language in the FLSA is that an employer must pay for hours that that employer has “suffered or permitted” you to work.

But before we get too far into the weeds: can people write for free for publications? Can they trade their writing for the nebulous compensation of exposure?

Continue reading →

Published on: March 26, 2014

The College Athlete as an Employee: Part 1 of Who Knows?

By The Erlich Law Office, PLLC

This is the beginning of a series on the implications of today’s National Labor Relations Board (“NLRB”) decision that Northwestern’s football players, “are employees of the school and therefore entitled to hold an election to decide whether to unionize,” according to The Chicago Tribune.

We’re going to start by focusing on the definition of employee.

The first question is what the NLRB means by “employee.” Well, the National Labor Relations Act defines employee with a long paragraph that starts out pretty broadly with, “The term ’employee’ shall include any employee… unless this subchapter explicitly states otherwise…” 29 U.S.C. 152(3). The definition goes on to carve out exceptions for agricultural workers, individuals covered by the Railway Labor Act, and some other exceptions.

Continue reading →

Published on: March 26, 2014

Is My Case Worth Pursuing? The Answer May Surprise You

By The Erlich Law Office, PLLC

Have you been treated unfairly by your employer but feel like your claim is too small for anyone to care? Based on a recent case in Millville, New Jersey, it may be time to think again.

People are sometimes reticent to approach a lawyer even when they know they’ve been treated unfairly. They see their claim as relatively small, especially when compared with the resources of their employer, and decide that the case isn’t worth their time or effort. This isn’t always true, and if you think you’re being treated unfairly, then we urge you to contact one of our attorneys to set up a consultation. Let’s look at a specific example of how a case like yours might be worth pursuing.

On November 7, 2011, a police captain ordered Patrolman Edmund Ansara to void an otherwise valid traffic ticket that he had written. The person to whom the ticket had been written was connected to a local politician or police leadership. Patrolman Ansara followed orders and voided the ticket. Lieutenant Edward Zadroga refused to sign off on the void form and reported a ticket-fixing problem to the county prosecutor’s office. After the complaint, Patrolman Ansara gave testimony to the prosecutor’s office regarding the allegedly fixed ticket.

Continue reading →

Published on: March 19, 2014

President Issues Executive Order to Expand Overtime Eligibility

By The Erlich Law Office, PLLC

President Obama issued an executive order last week that would expand the pool of workers eligible for overtime pay under the Fair Labor Standards Act (“FLSA”).

You may or may not already be familiar with the overtime portions of the FLSA; in case you aren’t, we will provide you with a brief synopsis. In short, the FLSA provides that many employers have to pay overtime to their employees who work more than 40 hours per week. This provision is not universal, however, because the Department of Labor is given the ability to create exemptions to it. As a friendly reminder, don’t forget that you can make overtime even if you are a salaried employee. Although salaried employees are often exempted from overtime by the professional, executive, or administrative exemptions, there is a threshold below which salaried employees must be given overtime pay. Prior to recent developments, the FLSA guaranteed overtime pay for salaried workers only if they made less than $455 per week or roughly $23,000 per year.

The new executive order issued last week, for which specifics have yet to be released, is estimated to increase that threshold to between $550 and $970 per week, or approximately $28,600 to $50,440 per year. In other words, depending on the specifics of the executive order, salaried workers who make up to $970 per week may now be covered under this executive order.

Continue reading →