Dumbing Down Work Triggers Overtime Pay

What happens when a law firm hires a lawyer to do document work that is so routine that a machine could be programmed to produce the same results? Two years ago, an attorney who took on this mind-numbing job sued a major law firm claiming that work over 40 hours per week qualified for overtime. The law firm said no: This work was performed by a lawyer and therefore it qualified for a professional exemption under the Fair Labor Standards Act. Yesterday, a federal court sided with the lawyer, saying that the label on a work or worker does not in itself determinative. If work requires no judgment or discretion, the work is hourly … and qualifies for overtime. See  https://bol.bna.com/appeals-court-revives-temp-attorneys-overtime-lawsuit-against-skadden/

Immigrant Worker Parallels: “Yellow Scare” (1870s) and Mexican Rapist/Murderer Meme (2015)

With the House Judiciary Committee holding a hearing today to advance the meme that Mexicans are murderers, it is useful to recall the Chinese Exclusion Act of 1882 [taught in my LER course, Immigration, Employment and Public Policy]. During the Gold Rush and building of the first transcontinental railroad, a labor shortage prompted an immigration wave of young Chinese men. In time—just as today—these workers were vilified because they were foreign. The Chinese Exclusion Act initially ended the influx of new Chinese immigrants. Successive amendments to the law increased the harsh treatment of Chinese immigrants—for example, by requiring them to register with the federal government, and then revoking their certificate if they left the U.S. to visit their native land and sought re-entry. Official discrimination against Chinese remained in place until the law was repealed in the Magnuson Act of 1943. That’s 61 years of excluding an entire nationality … and now, this: http://www.washingtonpost.com/politics/courts_law/house-to-take-up-bill-blocking-money-for-sanctuary-cities/2015/07/20/fb98ccb8-2f43-11e5-818f-a242f28e7022_story.html

Lawsuit Says Walmart Discriminates: No Health Insurance for Same Sex Spouses

Wal-Mart’s policy to deny health insurance to the spouses of gay and lesbian workers is being challenged in a lawsuit on grounds that it is discriminatory under ERISA (Employee Retirement Income Security Act of 1970). A Reuters report with an ERISA expert says the lawsuit is unlikely to succeed— and ProfLERoy agrees. This is because Walmart is self-insured—and therefore, it falls out of ERISA’s regulatory framework which includes, in part, a prohibition against discrimination. Employers have long used self-insurance as a refuge for tailoring benefits to fit their values and preferences. The fix? Probably needs legislation…. But some employers will likely argue that they have a religious right under the Religious Freedom Restoration Act not to be “substantially burdened” [using operative term from RFRA statute] by such a law. http://www.reuters.com/article/2015/07/20/qa-walmart-idUSL1N1000DU20150720 

A Moment for Law Geeks: Bluebook Website

ProfLERoy takes out a moment to share a great source for lawyers who want to be accurate in citing from Bluebook. You’ll still tear out your hair trying to be perfect. See http://citeblog.access-to-law.com/?tag=bluebook

Was FDR Right? New Deal Wage Law Will Create Jobs, Say Economists

The Fair Labor Standards Act, passed in 1938, set a minimum wage and required overtime after 40 hours per week. The overtime “penalty” of time-and-a-half pay was meant to encourage employers to hire another employee instead of paying someone at the higher overtime rate. Today, some economists believe that the recent Department of Labor rule that qualifies more employees for overtime will prompt employers to curtail overtime and hire new workers. For more, see http://www.wsj.com/articles/overtime-rules-seen-boosting-low-wage-hiring-1437333807

Department of Labor to Crackdown on Misuse of “Independent Contractor”

There is new federal guidance on classifying workers as employees. The gist is that the Department of Labor is signaling that firms too often misclassify workers as independent contractors rather than employees. Why does this matter? The worker gets no minimum wage or overtime; has no right to form or join a union; has no employer-funded health insurance; has no worker’s compensation or unemployment. This tends to cut-out employer contributions to Social Security and FICA. In a nutshell, a worker’s investment doesn’t count for much (think about someone who uses his car to drive for Uber)—the keys are whether the work performed is integral to the firm’s business. Impacts: Uber and related, but also health care workers who increasingly perform “contract” work—and many others. The guidance letter is here:http://www.wsj.com/articles/labor-department-releases-guidance-on-classification-of-workers-1436954401

That's Not An Ad Hominen, You Idiot: On Scalia’s Caustic and Damaging Prose

It’s one thing to see mainstream news media degenerate into ideological fits—but the law dean at UC-Irvine worries that his students’ legal briefs are increasingly “laced with derision and ad hominem barbs.” Why? This style is modeled by Justice Scalia, whose recent Obergefell dissent compared the majority’s legal reasoning to “fortune cookie” aphorisms. Dean Chemerinsky’s take? “Scalia’s browbeating is childish, even vain; like a harshly negative book critic, he revels in his own turns of phrase. And his attitude, just like his legal theory, affects the profession as a whole.” More here: http://blogs.wsj.com/law/2015/07/15/law-school-dean-worries-that-scalias-sarcasm-is-spreading/

Win for Reproductive Rights in Employment Insurance

Many faith-based employers object to ACA mandates for health insurance plans that provide for contraception. To get around burdening their religious belief, HHS regulations require employers who have these objections to notify their insurance company or HHS. These outside parties then take over responsibility to provide coverage to employees who want it. See here: http://www.wsj.com/articles/birth-control-coverage-rules-announced-by-obama-administration-1436544940. The Little Sisters of the Poor lost their lawsuit before a federal appeals court yesterday. The opinion says that the new regulation “relieves them from complicity,” adding: “Shifting responsibility to provide coverage away from the plaintiffs relieves rather than burdens their religious exercise,” according to Judge Matheson. See here  http://www.wsj.com/articles/christian-employers-dealt-setback-on-birth-control-cases-1436908738

“Dreamers” in Your Workplace? Supreme Court Deportation Case in the Making

Suppose you were born in Mexico, and at age 2 your parents brought you to the U.S. unlawfully. You did well in school, graduated from college with a useful degree, and are now employed. Your presence is unlawful; however, an Executive Order by President Obama (Deferred Action) put you—and several millions like you— in a temporary state where you can’t be deported, and allowed you to work legally. That may change soon as an appeals court considers a lawsuit by 25 southern and western states to invalidate the non-deportation policy.  See http://www.wsj.com/articles/appeals-court-to-again-consider-obama-immigrant-deportation-policy-1436465238

U.S. Military to Allow Transgender Service: Employers Likely to Follow

Often perceived as stodgy, the U.S. military sometimes leads the way on social change. FDR’s order to integrate U.S. armed forces in the early 1940s paved the way for integration at work after 1964. Now comes word that the Pentagon is lifting the ban on transgender service, and developing policies on inclusion and reasonable accommodations. Employers will likely pay attention, and find these policies a starting point for their organizations. See here:  http://www.wsj.com/articles/pentagon-readying-plan-to-lift-transgender-ban-1436816698

Training for Lawyers: Class on “Dimwits, Ramblers and Jerks”

Lawyers must stay current by taking so many hours on Continuing Legal Education. One new offering is titled “Dimwits, Ramblers and Jerks.” The ad says: “Whether aggressive opposing counsel or clients who talk on and on, this program will give you fresh approaches to work more effectively with anyone. Legal knowledge is important, but the most effective lawyers know how to influence and gain cooperation, even with challenging people, in order to get the job done.” For more, see http://www.likeablelawyer.com/cle-webinar/dimwits-ramblers-and-jerks/4339

Federal Government to Teams: No Protection of Your Native Trademark

In Collective Bargaining in Sports and Entertainment, we inevitably talk about pro teams—e.g., Blackhawks, Braves, Indians … and many others. Last week, a federal judge issued a ruling that favors the U.S. government’s administrative ruling to deny trademark protection to the Redskins. What does it mean? The team can use the symbol and market its goods, but cannot sue bootleggers. The opinion said: “The evidence before the Court supports the legal conclusion that between 1967 and 1990, the Redskins Marks consisted of matter that ‘may disparage’ a substantial composite of Native Americans.”  Here is a great report of the fascinating decision, which also ties in to recent government actions to “take down” the Confederate flag. http://blogs.wsj.com/law/2015/07/08/judge-redskins-have-no-right-to-disparaging-trademark/

“Amanda, Stop Chewing Your Crayon!” Can OSHA and Worker Lawsuits Be Coming?

A consumer group has asked the federal Consumer Product Safety Commission to investigate crayon makers for creating asbestos exposure in crayons. Late last week, CPSC agreed to look into it. Asbestos exposure is extremely serious. So are asbestos lawsuits. What about the workers who make crayons? What about workers who make crayons and ate crayons when they were kids? Thanks to Zak for sharing this interesting story.  http://www.cnn.com/2015/07/08/health/crayons-toys-asbestos-report/

Workplace Speech Crosses the Line: “Prisoner of AT$T”

AT&T suspended nearly 200 employees who wore shirts that said "Prisoner of AT$T” at work during contentious contract negotiations. Employees are permitted a wide range of protest under the National Labor Relations Act, but are not permitted to disparage their employer while on the job. The D.C. Circuit Court of Appeals ruled yesterday that AT&T did not violate the NLRA by suspending employees who worked while wearing these t-shirts. Judge Kavanagh wrote: “No company, at least one that is interested in keeping its customers, presumably wants its employees walking into people’s homes wearing shirts that say "Inmate" and "Prisoner." See: http://law.justia.com/cases/federal/appellate-courts/cadc/11-1099/11-1099-2015-07-10.html
 

Can Temps Unionize? We’ve Seen This Movie Before

On July 7, the National Labor Relations Board invited briefs in a case where temp workers, who were employed side-by-side with unionized workers, were disallowed from joining that union (called a unit accretion). The Clinton NLRB ruled in M.B. Sturgis, Inc. (331 NLRB 1298) that temps could join. The Bush Board reversed that in Oakwood Care Center  (343 NLRB 659). Looks like the Obama Board is returning to the ruling in Sturgis. Impact? Significant … most large workforces supplement with temps who work long stretches with core employees. If you want to send the NLRB a comment in the new case, Miller & Anderson, Inc., see this: https://www.nlrb.gov/news-outreach/news-story/board-invites-briefs-miller-anderson-inc

Department of Labor: New Rule to Improve Pillow Talk

Big changes coming soon to federal overtime laws..... since 2004, if an employee made about $23,000/yr. employers could classify administrative and managerial employees as "exempt" for OT. New limit will jump to $50,000 (everyone under limit eligible for OT). Too high, too soon? Details here: http://www.wsj.com/articles/overtime-pay-proposal-sets-white-house-businesses-at-odds-1434571771?KEYWORDS=overtime. Sarah Johns (LER Alum) passes along great NPR piece on one employer response: smartphone curfews for a wide group of employees (think administrative assistants) to avoid paying overtime under the new rules. Less pay, more pillow talk? (NPR excerpt: "She would tell me, 'Can you put your phone down?' I would say, 'Baby, I'm sorry, I have to do this real quick. This is work.") Details: http://www.npr.org/sections/alltechconsidered/2015/07/08/416515537/amid-new-overtime-rules-more-employers-might-set-email-curfew

Message to Uber? Court Says FedEx Drivers Are Employees (Not Independent Contractors)

Unlike UPS, which uses a traditional employment model, FedEx requires many drivers to sign an independent contractor agreement. Drivers buy their trucks (financed through FedEx), and are paid via a complex reimbursement model. They pay out of pocket for gas, maintenance and such. Last month, FedEx agreed to pay $228 million to settle a misclassification case in California, and the 9th and 11th Circuits have reinstated similar suits by drivers in Oregon and Florida. Yesterday, the U.S. Seventh Circuit Court reached a similar conclusion in Craig v. FedEx Ground Package System Inc. Beth Ross, lawyer for the FedEx plaintiffs, said firms with a faulty model for independent contracting should take note (she referred to Uber and Lyft).For more: http://scholar.google.com/scholar_case?case=14140219198002549549&hl=en&as_sdt=6&as_vis=1&oi=scholarr