03/20/17

The republican Assault On Our Legal System Has Already Started

It didn’t take long. gop Congresspeople have introduced the “Fairness in Class Action Litigation Act” (you can tell the bill is bad by the ridiculous name) to help companies get away with stealing from consumers and workers.

Not content with insulating themselves from legal liability through arbitration agreements and class action waivers, the Chamber of Commerce and their allies in Congress want to make it harder for people to bring class action suits even when it is not barred by some contractual agreement.

Spreading their typical lies about “baseless” and “frivolous” lawsuits (to a republican baseless and frivolous means “lawsuit I don’t like”) the gop bill would take a number of different steps to make class action suits less likely and harder to file.

One of the biggest changes is requiring the class to show “the party seeking to maintain such a class action affirmatively demonstrates that each proposed class member suffered the same type and scope of injury as the named class representative or representatives” before the class can be certified. Arguably this requirement would prevent any class actions from being certified.

It is rare that every class member suffered the same “scope” of injury. The amount of damages each class member suffered can differ depending on any number of factors. For example, if a class action is bought against a company that sold defective products one person may have bought one of the products and another may have brought three. Under the law right now both people are proper members of the same class. Under the proposed law they may no longer have suffered the same “scope” of injury and thus they may not be brought together in a single class action.

The new law also attacks an attorney’s ability to collect their fees. Especially troubling is the requirement “In no event shall the attorneys’ fee award exceed the total amount of money directly distributed to and received by all class members.” While this might seem reasonable, the effect would be to make actions where the individual class members suffered small injuries infeasible. Class action suits are in part a mechanism to provide a deterrent against bad behavior in addition to compensating people who have been harmed by the defendant’s actions. But here it is possible for a company to steal a small amount of money from lots of people and no attorney would bring a suit because the amount they can recover as fees may not be enough to make the litigation worthwhile. For example, a company could steal 50 cents from 100,000 people. But that means the most the attorney can be paid is $50,000 in fees which might not be enough to fund a complex litigation with a large group of plaintiffs.

There are other troubling provisions of the proposed law which serve to make it more difficult to file and litigate class action lawsuits.

Not content with making class actions more difficult, the gop has introduced at least 3 other bills designed to reduce access to the court system for consumers and workers. It’s telling that some of the first laws the new republican congress wants to pass are a number of different bills meant to make using the court system more difficult.

The republican party wants to allow companies to harm consumers and workers with impunity. The party guts the government agencies and regulations responsible for protecting consumers and workers as fast as they possibly can then they make it more difficult for consumers and workers to fight back privately through the court system. Americans need to wake up to the gop’s assault on their 7th amendment rights.

Read more here: Buzzfeed, Washington Post

11/22/16

Angry, Dismayed, and Despondent. Obama Administration New Salary Basis Rule Enjoined Nationwide.

I don’t know what to say. It is still sinking in. Reading the decision is baffling and infuriating.

A federal court judge in the Eastern District of Texas has issued a nationwide stop to the implementation of the Obama DOL’s new salary basis regulation which was supposed to go into effect on December 1st. This means the change in the salary basis test which was slated to increase from $455 a week to $813 a week is not going to happen. It will still be legal for a “manager” and other administrative or professional employees to make $455 a week for unlimited hours.

I’m not going to bother going into the reasoning of the decision. There is nothing much to it other than “Congress never specifically used the word “salary” or “pay” in the Fair Labor Standards Act so…”

The decision claims to narrowly address the proposed change only, but the logic is applicable to any sort of salary basis test without particularly explaining why this amount of salary basis is illegitimate. Even though a salary basis test has been part of the regulations since the FLSA was passed in 1938 (The Fair Labor Standards Act: A Historical Sketch of the Overtime Pay Requirements of Section13(a)(1) William G. Whittaker. Pg.4). It is strange that if Congress intended the Executive, Administrative, and Professional (EAP) exemption to depend on an employee’s duties only they didn’t say anything when the regulations written at the same time the law was passed to govern the exemption included a salary basis test (“an executive or administrator would need to earn “not less than $30” for a work week.” Id. at 4)

Now the rule will be at the mercy of the incoming trump administration. Yay.

The Obama administration is at fault here in the end. Why was this important rule change, which impacts millions and millions of workers, such an afterthought? Why did the DOL wait until the 11th hour? If Obama’s Presidency has taught us anything it is the gop and their buddies in the chamber of commerce will do everything and anything legally possible to delay or derail any change which may help workers. Wasn’t it obvious this huge change, which everyone agreed would raise pay for lots of people, would be enemy number one? Instead of making a change like this a priority (G.W. Bush changed the rule back in 2004 to be arguably more employer friendly, at the beginning of his 2nd term) Obama waited until the end of his second term. Thanks, Obama! It would have been the kind of change Clinton might have been able to campaign on as a meaningful accomplishment of the Obama administration which Clinton needed to be empowered to protect from the republicans.

If the gop Congress has anything to do with it most of Obama’s regulatory changes will be overturned. If this rule change happened years ago then millions of people would already have been enjoying higher pay or the same pay for less work before trump takes over. It might be a little more difficult to change the rule back to the 2004 version when doing so would literally take money out of people’s checks in a very obvious and tangible fashion. Unlike most of the other DOL changes Obama made this one would have impacted millions of people rather than a small group like government contractors. Now this rule will never go into effect before the new administration so no one will have experienced the benefits and there won’t be a huge constituency to be mobilized to prevent regressing backwards. Nothing legally prevented Obama from making the change earlier. It was only a lack of will and apparently other priorities.

Day like this are rough. I can accept a tough decision from a judge when it is just against me and my client. It hurts, but I will live to fight another day. But when a decision like this impacts so many people in such a profound way it is much harder to let it go as a bad break or “one of those days”.

I’d like to suggest a course of action or issue a call to arms. But frankly, I don’t know what to say. The future for this rule and employment laws in general are grim under trump and this radical, right wing republican congressional majority. I guess “vote Democratic at every level of government” is my only advice. Though even then it seems like helping workers isn’t a top priority.

10/17/16

Georgia Home Care Workers Should Not Be Independent Contractors

I often get calls from home care workers about issues with their wages or pay checks. Frequently they tell me they are working for an agency as an “independent contractor”. Because of a law passed by the Georgia Legislature in 2015 this is an illegal practice. Home care workers employed by an agency are by definition “employees” under Georgia state law.

Home care workers are people who help elderly or disabled individuals with tasks like bathing, grooming, cleaning, shopping, preparing meals, basic exercise, assisting and reminding patients to take medications, as well as other basic daily living activities. Home care workers are not required to obtain, nor do they usually have, any professional license from the State.

Before 2015 Georgia law was silent on whether home care workers working for a home health care provider agency could be hired as an independent contractor.

But in May, 2015 the Georgia House passed HB 183, The Home Care Patient Protection Act. The Home Care Patient Protection Act changed OCGA 31-7-300 to make it so a “Private Home Care Provider” must either use employees or “independent contractors who are health care professionals licensed pursuant to Title 43.”

This means unless an employee has a license from the State which is listed in OCGA Title 43 they can not be employed by a home care agency as an independent contractor. Examples of health care workers licensed under Title 43 include chiropractors, dentists, nurses, occupational therapists, physical therapists, among other professionals. Home care workers performing the kinds of duties I listed above are NOT licensed under Title 43.

Any home care worker without a State license under Title 43 must be hired as an employee, meaning they are covered by state employment laws and must have state taxes withheld from their paychecks. It would also be good evidence the home care workers would be considered “employees” under federal law and would be covered by federal employment laws like the Fair Labor Standards Act.

Agencies like using an independent contractor arrangement because the agencies think it relieves them of paying their share of payroll taxes as well as the requirement they pay the workers minimum wage and overtime if they work over 40 hours in a week.

If you are a home health care worker in Georgia who is treated as an “independent contractor” call Atlanta employment lawyer Ben Kandy. You may be entitled to minimum wage and/or overtime along with liquidated damages. Federal law has recently been changed so home care workers are now entitled to be paid time and half when they work over 40 hours in a week.

09/9/16

Why Can’t Employers Find “Qualified Employees”? Probably the Same Reason I Can’t Find A New $5,000 Ferrari

I have heard a lot of moaning from business groups and politicians moaning about how it’s “impossible” to find “good” help these days. The explanation is everything from lazy kids today, lack of training (as if employers never trained employees in the past, but that’s a post for another day), to “regulations”.

Barry Ritholtz from the Big Picture blog has a good column at Bloomberg about the real reason employer’s can’t find workers they want.

His takeaway:

“They [the employers] are also a little spoiled, because so many workers were desperate for jobs for so long and weren’t in a position to bargain for higher pay. That period seems to be ending. The low ratio of job seekers to openings suggests that if employers want to hire — and keep their existing employees — they might have to increase wages sooner rather than later.”

Simple supply and demand. If wages were soaring and inflation trending higher then maybe there would be some sort of non-wage related reason for the difficulty of finding workers. But right now if you hear a business or business lobbyists complain about how hard it is to find good workers you need to add “for the low price I want to pay” to their complaint.

Check out Ritholtz’s column here

09/8/16

Why the Department of Labor Can’t Always Help You Get Your Last Paycheck

If you call the Department of Labor to help you recover your final paycheck you will sometimes find they are not very helpful. It’s no wonder, the State and Federal Departments of Labor have a lot of different issues to deal with and helping you get your last paycheck may not be their top priority.

If you call your state Department of Labor they usually not much help at all, especially in a state like Georgia.

The Georgia Department of Labor has a lot of different things they do from workforce development to administering unemployment insurance claims. This means helping you get your last paycheck is probably not going to be their priority, if they can help you at all. And when there are no laws they can use to help get you your money there’s really not much they can do anyway.

In other states, the State Department of Labor might be a little more helpful. In California for example, where there are strong state laws in regards to wage and hour issues, the state may be more willing and able to help you get your money.

The Federal Department of Labor may be a better bet, but again they may not be so helpful, especially if you are the only one in your workplace with your issue. Like if your boss decides to just not pay you your last paycheck because he is upset you quit to start a better job. If it isn’t some sort of widespread issue that impacts everyone you work with the federal Department of Labor may not be able or willing to spend the time required to make sure you get every penny you deserve.

The federal Department of Labor is involved in drafting policies, writing regulations, helping business owners to understand the law and understand if they are in compliance with the law so they may not be able to take the time to help you with your case.

Sometimes the federal Department of Labor will help you but their efforts can be half-hearted. They might call or send a letter to your employer, and sure the Department of Labor is a scary group to receive a letter from if your own a small business. But the Department of Labor doesn’t really have much of an incentive to get you all the money you are owed. They may be willing to accept the business owner’s offer of a settlement which is half or even less of the amount of money you might be owed. And in the end there and so many violations of the labor laws and wage and hour laws in this country the Department of Labor just really doesn’t have the resources to help everybody who needs assistance.

That’s why the Fair Labor Standards Act has provisions to give lawyers an incentive to take even the smallest case. The most important provision is what’s called the “shall pay” attorney’s fee provision. Typically in the United States the general rule is each side pays for their own attorney’s fees. This means if you’re owed a relatively small amount normally you would have to pay a lawyer however much it costs for them to recover your money. Lawyers’ fees can quickly spiral out of control so spending thousands of dollars on a lawyer might not be worth it if you only owed a few hundred dollars.

The “shall pay” attorney’s fee provision changes that. This rule means even if you only recover a dollar from your employer your employer has to pay every penny of the fees and cost your attorney charges to recover the money. It allows a lawyer to take your case even if you are only owed a day of pay.

If you are owed any amount of money from a previous employer contact Atlanta employment lawyer Ben Kandy to see if there may be something that can be done to get you the money you deserve.

07/25/16

Can my Boss Take Some of my Tips to Pay for Credit Card Transaction Fees?

Many employers in the restaurant industry have decided to pass on every cost they can to their employees. From making employees buy their uniforms, to forcing them to work unpaid “training” days, and even passing on administrative costs one might assume would be covered by the employer. One administrative cost employers are passing on is the cost of credit card processing. Typically credit cards companies charge businesses a percentage of the amount spent on the credit card at the business as a processing fee. Restaurants frequently take a percentage of their employees’ tips to pay for credit card processing of all the tips customers pay for with a card.

Under section 203(m) of the Fair Labor Standards Act, employees may only claim the tip credit if all tips received by a tipped employee are retained by that employee. This means if a restaurant owner takes a portion of the employees tips for an unlawful reason they lose the right to pay their employees the (much) lower tipped employee minimum wage with the tips making up the difference between what the employer pays as an hourly wage and the federal minimum wage.

Courts have allowed employers to deduct the cost of credit card transaction fees from their employees’ tips but still retain the tip credit to use towards the minimum wage. But that doesn’t mean an employer can deduct any amount they want from their employees’ credit card tips. In a case in Texas a restaurant owner retained flat 3.25% of all credit card tips to offset both credit card issuer fees and other costs which they contend they incurred in collecting and distributing the tips. The restaurant argued they were subject to extra costs and administrative expenses beyond just processing fess because the restaurant converted the tips to cash to “tip out” on a daily basis which they claim the employees had specifically requested.

The court said a business can not make deductions from an employee’s tips AND keep the benefit of tip credit when they deduct an amount from tips if the deduction is for something the employer is not required to do. The court found the costs above the credit card processing fee were not “direct and unavoidable” such as the credit card company fees, but instead were “indirect and discretionary”. The court said paying everyone in cash every day was a business decision and the employer could have chosen to fold the employees tips into their biweekly paychecks rather than tipping out the employees everyday. The cost of making a business decision should not be borne by the employees.

If you are a tipped employee who is paid less than $7.25 an hour with tips making up the difference between what you are paid by your employer and the minimum wage then make sure you know if, and how much, your employer is taking from your tips. If it is anything more than one or two percent per credit card transaction then the employer may be violating the law.

If you are working in the Atlanta Metro area and you have a question about the way your employer treats your tips call or email Atlanta employment lawyer Benjamin Kandy.

06/28/16

Important Update on Home Care Workers’ Right to Overtime Pay

As I have previously mentioned, the Department of Labor has changed the rules on overtime for home care workers. Before January 1, 2015 most home care workers did not have to be paid any overtime no matter how many hours they worked.

Since January 1, 2015 the rules for home care workers have changed and now any home care worker who is employed through a third party agency must be paid time and a half their regular hourly rate when they work more than 40 hours in a work week.

Businesses and even state governments filed a number of legal challenges to the new rule. In October, 2015 the D.C. Circuit Court found for the Federal Government and upheld the new rules. Of course, that was not the end of the legal challenges.

The groups involved in the D.C. Circuit challenge appealed to the U.S. Supreme Court and asked the Court to grant a writ of certiorari and review the D.C. Circuit Court’s decision. This may have meant the Supreme Court would have a chance to strike down the new rule for home care workers and their new right to be paid overtime.

I am happy to announce the Supreme Court just announced they will not be granting a writ of certiorari to review the D.C. Circuit Court’s decision. This means the new rule is now firmly part of the law! Home care workers can now be confident their right to overtime pay will not be overturned by the courts any time soon.

What does this mean for home care workers? If you are a home care worker and you have worked over 40 hours in a week without being paid time and a half your hourly rate at any point since January 1, 2015 you need to speak with a lawyer. If you are in Georgia contact me, Atlanta employment lawyer Ben Kandy.

06/6/16

Pushback Against the New Overtime Salary Threshold Rule from Interesting Places

The new Department of Labor overtime rules have been in the news a lot recently. The change impacts many different sectors of the economy so seeing the reactions from people in different industries has been interesting.

Unsurprisingly the big employer groups have come out against the rule. But there have been some groups of employers who have come out against the new rule that one might would expect to support expanding overtime. For example, non-profits have been a voicing their concerns about the impact the new rule will have on their operations. US-PIRG sent out a press release saying :…to cover higher staffing costs forced upon us under the rule, we will be forced to hire fewer staff and limit the hours those staff can work – all while the well-funded special interests that we’re up against will simply spend more.” It is unfortunate to see US-PIRG criticize a rule that will help the people US-PIRG claims they are working for.

Another group of employees that have been in the news in connection with the new overtime rules are workers in the so called “Prada” economy. Most of the talk about the overtime rule has been in connection with workers like fast food “managers” working 60 hour weeks for $25,000 a year with no overtime. There are apparently many industries, usually seen as glamorous and lucrative, which depend on employees on the lower rungs of the company ladder working long hours for very low pay. A famous movie example is Anne Hathaway in “The Devil Wears Prada”, hence the name Prada economy. Other examples mentioned in the New York Times article are Hollywood production assistants, literary agents in New York, and Washington political campaign workers. A lot of entry level positions require the employee to work well in excess of 40 hours a week for a salary, as acknowledge by the author of “The Devil Wears Prada”, may be below minimum wage if calculated on an hourly basis. The article says assistant literary agents are paid in the $30,000s for 50-60 hours a week, in New York City!

All the owners and company higher ups claim the new rule will force employers to cut back hours, and as a result “Less will be asked of them [the employees], which means they will not receive sufficient career development or see timely advancement and/or promotions.” I suppose this is possible. But it also seems to be an admission a lot of the work done by the lower level employees was either useless busy work or a form of hazing meant to reveal which employees were worthy for advancement in the organization. Changing work rules so employees will no longer receive career advancement or training is cutting off your nose to spite your face. Where will these organizations get future mid level and upper level employees if they all refuse to train or develop talent?

As an aside, in the article Andrew Wylie, the  owner of a literary agency is quoted:  “He would consider paying time and a half if he asked junior staff members to work overtime, but not if they worked long hours of their own volition. “What am I supposed to do, sit at the door with a stopwatch?” he said. “I’m not going to do that.” Employers are required to keep records of all the hours worked by employees eligible for overtime and/or pay of at least the minimum wage for all hours worked. An employer can’t escape liability for paying for all hours an employee worked by claiming the employee was working of their own volition but without the employer’s express permission. Employers must pay for work they “suffer or permit”. If an employer knew or should have known work was performed then they must pay the employee the appropriate amount for the work.

Unfortunately, many of the people interviewed for the article believe the rule change may not impact the actual hours people work. The culture in these workplaces is such that employees feel like they can’t ask for the overtime they are owed. In regards to overtime during her job with Vogue, the author of “The Devil Wears Prada” explained: “It never occurred to her to put in for overtime pay, which Condé Nast, the magazine’s publisher, provides. “I certainly would not have had that conversation with Anna [Wintour, editor of Vogue]; I would have had to have it with H.R.,… I don’t imagine that conversation took place a whole lot.”

It still looks like the new regulations are on track to come into effect on December 1, 2016. Stay educated and up to date on the rules.  Your overtime depends on it.

 

 

 

05/17/16

The Department of Labor Announces the Final Overtime Salary Threshold Rule

On Wednesday, March 17, 2016 the Department of Labor announced the new overtime exemption salary threshold.  For an employee to be exempt from the general overtime requirements the Fair Labor Standards Act requires the employee meet one of a number of different duties test by performing certain work duties and in most cases be paid a salary at or above a certain threshold. Currently the threshold is $455 a week which is $23,660 a year. The new salary threshold will be $913 a week, or $47,476 a year. In addition, the new rule also creates an automatic mechanism to update the salary threshold every three years, beginning January 1, 2020. Each update will raise the standard threshold to the 40th percentile of full-time salaried workers in the lowest-wage Census region, estimated to be $51,168 in 2020.

The rule will go into effect December 1, 2016.

I am very pleased with the new rule. Even though the Obama administration was shooting for around $50,400 and with inflation the new threshold would have to be around $51,000 to match the overtime salary threshold at its highest point in the 1970s, the final number is a huge gain.

The Department of Labor calculates 4.2 million workers will become newly eligible for overtime. The Economic Policy Institute put the number of newly eligible workers and workers who will be assisted by the new rule closer to 13 million.

The automatic update to the threshold is almost as important as the update to the amount itself. Before this change, the salary threshold had been last updated in 2004 and before that in the mid 1970s. The new rule will ensure the salary threshold doesn’t diminish via inattention and inflation.

Republicans and industry groups will attack the new rule with everything they have. The New York Times seems to think Republicans may have to reconsider their normal opposition to anything that might help working people.

“With Donald J. Trump as their presumptive presidential nominee, however, the issue is fraught with risk for Republicans. Any attempt to repeal the regulation could exacerbate an already palpable split between Mr. Trump’s blue-collar supporters and the party’s establishment donors and politicians.”

This different political dynamic might mean the rule can be implemented on schedule without serious legislative or judicial delays.

Please see the DOL’s fact sheet here.

05/3/16

An Interesting Move by the National Labor Relations Board in the Ongoing Fight Over Employee/Independent Contractor Misclassification

I just saw a very interesting news report about an action by the National Labor Relations Board (NLRB) that may be an important move in the current fight over the classification and misclassification of employees and independent contractors. With concerns about the “gig economy” (i.e. Uber etc.) and other forms of informal, “non-employee” employment becoming a topic of conversation this action by the NLRB is a welcome response to people pushing the Administration to do more to ensure our employment laws are being followed in letter and in spirit.

As I have previously discussed, misclassifying a worker as an independent contractor rather than an employee is not necessarily in and of itself a violation of any law. Usually the issue is an employer is not following employment laws, like the requirement to pay overtime, because the employer is treating their workers as independent contractors rather than employees. One would then sue the employer for failure to pay overtime.

The problem is in certain situations it might be the case that even though the employer misclassified their workers as independent contractors they didn’t violate any employment laws while doing so meaning the misclassified employees may not have a private right of action against the employer. This could happen if, for example, the misclassified employees only worked 32 hours a week meaning they didn’t work overtime and they were paid $8 an hour meaning they earned at least minimum wage for all hours worked. In that situation an employee may be able to contact the IRS and other federal and state agencies but they may not be able to sue the employer themselves.

That is one reason why the NLRB’s move is potentially so important. The NLRB filed a complaint against a company operating intermodal transport at a port in California. The complaint alleges what are know as “Section 8(a)(1)” violations which is when an employer somehow restrains the rights of employees under Section 7 of the National Labor Relations Act (NLRA) to engage in concerted activity in regards to their job and working conditions.

The complaint claims the company, by misclassifying their drivers as independent contractors instead of employees, was preventing those employees from engaging in concerted activity as allowed by Section 7 and thus committing a violation of Section 8(a)(1) of the NLRA.

If this complaint is successful it would be a huge weapon for misclassified employees. The very act of misclassifying an employee as an independent contractor would by itself be a violation of the law without requiring an employee to show anything else. The logic underlying the complaint seems to be by misclassifying employees as contractors the employer is trying to prevent employees from getting together to discuss wages and job conditions because by classifying the workers as contractors they are not protected by the NLRA and its rights under Section 7 as the NLRA only protects employees.

 

Filing this complaint also shows the NLRB is aggressively fighting for workers and their rights. It is another reminder of how important it will be to elect a President this year who will support the NLRB in their fight like President Obama.

 

If you are a worker in Atlanta or in Georgia and you believe you have been misclassified as an independent contractor please contact attorney Benjamin Kandy at ben@bkandylaw.com or 678 824 2251 for a consultation.

As always, this is not legal advice and does not give rise to any attorney-client relationship. If you are in a state other than Georgia go to NELA.org to find a good employment lawyer near you.