He Did It! President Obama Announces an Increase in the Overtime Salary Threshold

The other day I mentioned President Obama and the Department of Labor were working on new overtime rules and these rules were due to be announced soon. Well this morning it happened.

In a Huffington Post editorial President Obama announced “This week, I’ll head to Wisconsin to discuss my plan to extend overtime protections to nearly 5 million workers in 2016, covering all salaried workers making up to about $50,400 next year.”

Currently an employee making at least $455 a week and performing certain duties does not need to be paid overtime. This means there are some “managers” out there, especially in food service and retail, making around $24,000 a year while working crazy hours. This new rule would mean those employees have to be either be paid more, around $969 a week, to keep their exemption or the employer will have to pay them overtime.

The President’s proposed rule will move the threshold to where it was in 1975 dollars.

Implementing the new rules won’t be easy. There will be a fight with Republicans as well as the business community. There will be lawsuits and the GOP may try to use legislative changes or the reconciliation process to block the new rules.

Hopefully these new rules actually happen unlike the home health care changes that were dropped during the implementation process. This change to the overtime rules will help millions of American workers and are long overdue. Thanks Obama!


It’s happening? It’s happening! The Department of Labor will soon release new rules regarding the salary threshold for paying overtime

As I have discussed previously, there has been talk for years about the Obama administration raising the threshold of the salary required to be exempt from overtime pay under the Fair Labor Standards Act (“FLSA”). Currently if a person earns more than $455 a week salary and meets certain duty tests then they do not need to be paid overtime. $455 a week works out to about $23,500 a year. If an employee was working only 45 hours a week for $455 it is an effective hourly rate of just $10.10 an hour.

Employers have abused this rule by doing things like paying a “manager” just over $455 a week and having them work crazy hours splitting their time between management and general employee duties like cleaning or serving customers. This allows the company to hire less people while legally working the “manager” half to death. The original intention behind overtime laws was specifically to give employers an incentive to share work rather than employing as few people as possible and working them until they break. This new threshold will help uphold the original intent behind the FLSA.

There are rumors the new threshold will be around $52,000 a year. The overtime threshold is not indexed to inflation and has been updated only once since 1975. It currently covers 12 percent of salaried workers. Boosting the threshold to $50,440 would bring it back in line with the 1975 threshold, after inflation. By one estimate that would give somewhere between five to ten million workers a raise.

The new rules are also expected to tighten the various duties tests for white-collar employees. As the American economy has moved from manufacturing to the service sector fewer and fewer employees are eligible for overtime pay. This is a vestige from a time when there were fewer low-paying white collar jobs. The new tests will hopefully focus on the employee’s role in the workplace rather than the white collar/blue collar distinction.

On June 10th the House Education and the Workforce subcommittee held a hearing in regards to a number of wage and hour issues. Predictably the GOP controlled committee and the business community invited to testify cried and moaned about how a change in the threshold will be the end of the Republic and might actually kill people. Not really, but they did complain about “flexibility”, “job-killing”, and other related buzzwords that always seem to come up whenever the people use the power of the state to help labor vis a vis capital.

Unfortunately the rules will not be easily implemented. Business groups will almost certainly sue the administration trying to stop the changes and Republicans will do everything they can to help their big business friends. Unions and progressive groups are working hard to support the Obama administration, but the President needs as much support as he can get.

One way to help make sure these new rules are instituted quickly is to submit a comment supporting the changes during the notice-and-comment period. This will help show everyone involved there is a groundswell of popular support for making sure overtime pay applies to the people it was intended to help.


What’s a Stage? Seems Like a Fancy Word for Free Labor

The other day I was talking with my girlfriend and she was telling me about a friend who was applying for jobs at restaurants. Apparently, he was applying for a job as a waiter and they asked him to do a “stage”. I had never heard the word used that way before and I didn’t know what it meant. My girlfriend told me a stage was when a restaurant asks someone to work for free, as a trial. And it happens all the time!

Wikipedia’s entry defines “stage” as “an unpaid internship when a cook or chef works briefly, for free, in another chef’s kitchen to learn and be exposed to new techniques and cuisines.” The word comes from the french word stagiaire meaning trainee or apprentice.  The article also notes “A server or waiter can also “stage” in a restaurant for much the same purpose.”

Sure, maybe I can understand a chef coming into a kitchen to help with a service or to help prep in order to learn a new technique. But it seems like restaurants are using staging to try candidates out for a job and are not designed to teach anything. And don’t get me started on waiters or servers being asked to stage. Are they supposed to be learning some new innovative waitering techniques?

The law is pretty clear. All employees of a business covered by the Fair Labor Standards Act(“FLSA”) must be paid at least $7.25 an hour. Certain tipped employees may be paid less than $7.25 per hour (as little as $2.13 is allowed) as long as the tips are enough to make up the difference between the tipped employee’s hourly pay and $7.25 an hour.

In most cases, if a restaurant is asking you to work a service where customers will be coming in and paying money for the food then you need to be paid. The law does not allow employer and employee to agree to an unpaid trial period where you work for free in order for the employer to test you out. It doesn’t matter if it is “only” one shift or service. Free work is free work.

Under federal law there may be circumstances where someone could work free for a day, or even longer, without breaking the law. Because the measurement period for calculating minimum wage under federal law is the work week, a person could conceivably work “free” days but still make an effective hourly wage of at least $7.25 that week. The person would have to be paid on a salary basis which would require the person be paid the same amount even if they work more hours on some days than others. The salary would have to be enough so salary divided by number of hours worked in the week is greater than $7.25.

In some states even if the employee makes a salary that pays an effective hourly rate of more than the state minimum wage may have violated state labor laws which are allowed be tougher than federal law.

Because the stage is being used to test job applicants it stands to reason that some candidates won’t make the cut and get offered a job. Some people will have worked for free and in return received absolutely nothing in return.

If a “test” or “trial” involves the employer making money then you should too. Restaurants are using ideas about Europe and “how they do things in the best French restaurants” to get unpaid labor. Just because something was ok in 19th century France doesn’t mean it is ok in 21st century America.

When you consider almost all employees in the US are “at will” the employer can fire them at any time for any reason or no reason at all. Why is there a need for a “trial period”? It’s not like it’s easier to fire an employee during some made up trial period.

The restaurant industry seems to run on constant wage theft. From the application process to paying an employees their final paycheck it’s like some restaurant owners can’t resist short-changing workers whenever they can. One thing that helps unscrupulous owners get away with stealing from employees is the amounts involved can be relatively small.  For example, if you worked an entire 8 hour day for free, 8 hours at $7.25 is $58. Even with liquidated damages, a penalty that courts may asses against employers who violate the FLSA, the amount owed is still only $116 (liquidated damages are an amount equal to the unpaid minimum wage or overtime). It doesn’t make much sense to pay a lawyer potentially hundreds of dollars an hour to get back $116.

The Fair Labor Standards Act has a number of provisions that are supposed give lawyers an incentive to take on cases where damages are low. Similar cases, like when an employer doesn’t pay all his line cooks overtime, can be consolidated in to a single collective action. As I mentioned above, there are liquidated damages. Perhaps most important, the FLSA has a “shall pay” fees and costs provision meaning a successful plaintiff (the employee) will awarded an amount for the costs and legal fees spent to recover the unpaid minimum wage or overtime. This means a lawyer can take a small value case knowing the court will award an amount to pay for the time it took for her to recover the money for her client.

If you live in Georgia and have ever worked a trial day, week, month, whatever…call or email Attorney Ben Kandy. Ben is an employment lawyer in Georgia located in Decatur, just outside the City of Atlanta. (678) 824 2251. Call or email Ben about any of your Georgia employment law needs.


How to return FMLA paperwork to your employer

When an employee asks to take leave that might qualify for Family Medical Leave Act protection an employer will commonly ask the employee to have their doctor complete paperwork certifying the employee, or the employee’s family member’s, condition.

As a reminder, the law requires the employer give the employee at least 15 days to complete and return the paperwork. (29 CFR 825.305(b)).

A question that might come up is what is the best way for the employee to return the paperwork to the employer? If the employer tells the employee to use a specific way to return the paperwork then the employee should do that. An issue can come arise when the employer says something like “bring it back in 15 days” without specifying how they want the paperwork sent back.

Some employees think they should bring the paperwork in person to give to their manager or HR rep. They might think putting the paperwork right in their manager’s hands means no one could dispute the paperwork was returned on time. Here’s the problem. What evidence does the employee have to show when the paperwork was returned other than their word? What if the manager lies and say they never got the paperwork? Or they say the paperwork was returned 10 days later than when it was? Sometimes people lie even when they swear to tell the truth.

Best practice would be to use a method that creates some sort of record. For example, certified mail. Or fax. Or email. All of these create a record. Taking the paperwork to the office in person is fine, but it might be best to do so in conjunction with another method that creates a record. Better be safe than sorry.



This post is not legal advice. Nothing contained herein is intended to create an attorney client relationship between the reader and attorney Benjamin Kandy.

Mortgage Loan Officers and Brokers Need to be Paid Overtime

If you are a mortgage loan officer or broker then the United States Supreme Court just handed down a very important decision that could impact how much you are paid.

In 2006 the G.W. Bush controlled Department of Labor issued a rule stating mortgage brokers were exempt from the requirements of the Fair Labor Standards Act under the Executive Exemption. In 2010 the Department of Labor, now controlled by President Obama, changed the rule to make mortgage brokers once again eligible for overtime pay.

Of course, the Mortgage Bankers Association sued the Department of Labor saying changing the rules (in the exact same way as President Bush did in 2006) was illegal.

A unanimous Supreme Court held the change was legal and the Department of Labor’s decision can be enforced.

If you are a mortgage loan officer or broker and your primary duty is making sales on behalf of your employer, then you quite possibly deserve to be paid overtime when you work over 40 hours in a week.


My Aunty or Grandmother is very sick. Can I take FMLA leave to help care for her?

The Family Medical Leave Act allows an eligible individual to take up to 12 weeks of leave to take care of a relative with a “serious health condition”. A relative can mean a lot of different things to different people. Who is considered a relative under the law?

Sometimes people grow up outside of the traditional mother, father, child nuclear family. They might be raised by grandparents, an aunt, or even a non-relative. The FMLA recognizes not everybody was raised by a biological “parent” and allows for an individual to take leave to care for people based on their relationship rather than biology. 29 CFR § 825.122 defines parent as “a biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the employee.” The key language is “individual who stood in loco parentis to the employee”. In loco parentis means to act as a parent. This means an employee can take to care of anybody who acted like the employee’s parent when the employee was a child.

Factors to be considered when determining if an individual stood in loco parentis to an employee when the employee was a child include the degree to which the employee was dependent on the person as a child; the amount of financial support, if any, provided; and the extent to which duties commonly associated with parenthood were exercised.

Having a living, biological parent doesn’t preclude an employee from using their FMLA leave to care for another person if that person raised the employee as a child. For example, if you were raised by a Lesbian couple who conceived through IVF, you might be able to take leave to care for both of your mothers and your biological father even if he did not help raise you as a child.

If you were raised by your aunt, your grandmother, or even the next door neighbor, it does not matter. What matters is how involved they were in raising you day-to-day.

An important point to remember is FMLA leave can only be used to care for an individual who has a “serious health condition“. Something like a mild cold may not meet the definition. It also important to remember the FMLA eligibility criteria. You have to work at an employer with at least 50 employees within a 75 mile radius of where you work. You also have to have worked for the employer for 12 months and at least 1250 hours in those 12 months.

The FMLA recognizes the diversity of the American family. The law celebrates and protects non-biological parents who take on the important responsibility of raising a child.






President Obama makes a move on paid leave

On January 15 President Obama signed an executive order to give up to six weeks of paid leave to all federal employees when a new child arrives and publicly called on Congress to pass a federal law guaranteeing seven days of paid sick leave for all Americans.

President Obama’s executive order is in line with his strategy of changing the law when he can by executive order to get around the GOP controlled congress. He is also putting pressure on congress to follow his lead.

There is no way the Republicans will pass a bill of any sort requiring an employer to provide paid leave. However President Obama is letting the GOP show the American people how little they care about people who don’t run a big business.

As part of the announcement President Obama directed the Department of Labor to provide money to states or municipalities that want to institute paid leave policies. Currently 17 states and the District of Columbia have some form of required paid sick leave.

The GOP is giving their standard job killing bs. There are a number of studies that indicate paid leave increases productivity leading to higher profits. This might be because, for example, if workers know they can schedule paid leave to care for themselves or for family, it reduces distraction while they are on the job. Mary Eschelbach Hansen, an economist at American University told the LA Times studies of the unpaid leave provided by the Family and Medical Leave Act of 1993 show that when employees take time off to care for a sick family member, it speeds the relative’s recovery time. Dr. Hansen also reported Cities with paid sick leave, including San Francisco, saw no negative economic effect of adopting such a law. Compared with nearby cities that did not have paid leave employment in a number of businesses in San Francisco went up after the law’s implementation.

Because of Republican control of congress and so many state legislatures there is almost no chance of this proposal becoming law on the federal level or spreading to GOP controlled states.

Paid leave is good for the employees, employers, and customers. Let’s hope there is a move toward instituting paid leave for all employees after 2016.


2015 New Year’s Employment Law Resolutions

These last couple of years I have rung in the new year with a set of employment law new year’s resolutions. With 2014 being a midterm year and these elections being so consequential, my resolutions have a political bent.


1. Remember how important it is to vote, especially in midterm elections.

The 2014 midterms had the lowest voter turnout since World War Two. As a result, the electorate was older and whiter than the population at large. This unrepresentative electorate put the GOP in charge of both houses of Congress. GOP control of congress probably won’t affect employment laws too much. When Congress was split between a Democratic Senate and a Republican House nothing much was happening. With President Obama still wielding veto power (hopefully) anti-worker bills passed by the GOP congress will be stopped by the president or even filibustered by Democratic Senators.

The real action is now happening in the states. The Republicans now totally control 68 out of the 98 partisan state legislative houses (e.g. they control the state house or senate) and in many states the GOP controls both legislative bodies. State laws have a lot of impact on working conditions in the state. State laws can be stronger than federal protections. For instance, a state can have a higher minimum wage or a stronger paid leave requirement than under federal law.

In the states now controlled by Republicans we are not likely to see worker protections being strengthened (at least at the legislature. Ballot measures are a different story as I’ll discuss later). There is also the possibility of terrible anti-worker laws like “right-to-work” being passed in GOP controlled states. This shows how important state level elections are for worker protections. People concerned about their rights at work need to get engaged at the state level and during midterms. It is not enough to only get out and vote in Presidential election years.


2. Keep the pressure on President Obama to use his executive authority to expand worker protections and workers’ rights.

President Obama worked around a divided congress this year and made a real difference. For example, he used his executive authority to expand the protections of the Family Medical Leave Act to same-sex spouses. There is still a lot to be done. We need to remind President Obama he has the power to make important changes to employment law and he should move forward using his executive authority. For instance, there has been talk about increasing the amount of weekly earnings required for an exemption under the Fair Labor Standards Act white collar exemptions . Currently one need only be paid $455 a week to be eligible for an FLSA exemption. The Department of Labor could raise that amount so workers would need to be paid a decent salary before they could be exempt from overtime or the minimum wage.

President Obama could also move forward on plans to change the home health care exemption of the FLSA. Currently people who work in private homes helping invalids are exempt from overtime pay. These jobs are commonly held by women who work long hours for low pay. The DOL announced changes that would have made these workers eligible for overtime. Later it was announced the changes were to be postponed for further review. Making the changes to the FLSA regulations now, as originally planned, would help many hard working men and women who do a difficult but necessary job.


3. Get involved in politics outside of electing candidates to office.

Some of the most heartening news about workers’ rights came from the states. In a number of states pro-worker ballot measures passed handily. Interestingly, these measures passe in states even when the state elected Republicans to statewide offices. For example, in Arkansas a ballot measure passed raising the state’s minimum wage to $8.50 . Nebraska raised their minimum wage by a ballot measure to $9 an hour. Alaska and South Dakota also raised the state minimum wage via a ballot measure. In Alaska and Arkansas the Republican won the statewide senate race and the strong support for the ballot measures forced both candidates to eventually come out in favor of raising the minimum wage. It is unclear why people would vote for a raise in the minimum wage then vote for politicians who oppose the raising the minimum wage (or even the minimum wage in general). Maybe there needs to be a concerted campaign by supporters of increasing the minimum wage to “call out” politicians who are against raising the minimum wage.

The success of these minimum wage ballot measures also shows how certain policies can be widely popular even when the politicians who support those policies are not. Supporters of workers’ rights might need to figure out other policies as popular as the minimum wage and push to include those policies on future ballot measures.


4.Don’t forget how important the courts are and how elections impact who sits on the courts.

There were less “blockbuster” Supreme Court employment law decisions this year than in 2013. Mostly because there was less of an opportunity as there were less cases on their docket concerning employment issues. A big decision was the recent case involving pay for time spent waiting on security checks. The court decided current law says workers do not need to be paid for time waiting in line for a security check. With the decision being 9-0, this is a case where the legislature could change the law. But I wouldn’t hold my breath.

5-4 decisions are where small changes to the court’s composition could make a big impact. The next president will probably have the opportunity to replace two or more supreme court justices.

The lower federal court justices are also appointed by the president. President Obama has been able to appoint many federal court judges. At the moment, Democratic appointees outnumber Republican appointees on 9 of the 13 federal appellate court circuits . It is crucial to elect the Democratic candidate for president in 2016, if only for the judicial appointments.


Good luck in the new year whatever you do.



Amazon Warehouse Workers Lose at the Supreme Court

Just months after oral arguments the Supreme Court has delivered a ruling in Integrity Staffing v. Busk. The case was about whether contract workers at Amazon warehouses need to be paid for time spent waiting in line for a security check on their way out of work at the end of the day.

In a unanimous 9-0 decision the court ruled the workers did not have to be paid for that time. The case hinged on interpreting the 1947 Portal-to-Portal Act. The Portal-to-Portal act was meant to clarify when workers needed to be paid for duties that were performed before or after the work day. For example, does an employee need to be paid for the time taken commuting to work? For time spent putting on a uniform or safety gear? Turning on a computer? Under the Portal-to-Portal act workers need only be paid for duties that are a “principal activity” of the workers’ jobs. Courts have ruled that turning on a computer used for work is a compensable “principal activity” while putting on some types of gear is not a “principal activity”.

In this case, Integrity Staffing v. Busk, the court ruled the security checks were not principal activities. The reasoning was that the security checks were not  “an intrinsic element” of the job and “one with which the employee cannot dispense if he is to perform his principal activities.” Workers in the warehouse could have performed their job without undergoing the security checks. This is unlike, for instance, some of the computer cases where courts ruled turning on the computer was something the employee had to do in order to perform his principal activities and so was compensable time.

The case got to the Supreme Court because the 9th circuit Court of Appeals ruled the opposite way. The 9th circuit said that because the employer requires the check and the workers have no control over how long it takes. it should be compensable.

While I agree with the 9th circuit’s logic, it is not necessarily the correct analysis of the situation under the text of the Portal-to-Portal act.

This case was one of statutory interpretation. The court was analyzing the facts of the case with an eye to the meaning of the statute. This means Congress could change the law and make it so situations like this would be compensable in the future. Unfortunately the current congress would never change a law that helps businesses. The GOP hates workers and would never do anything that would help employees at the expense of business. Current Democrats are not much better.


March for Jobs and Freedom: The Unfinished Work of the Civil Rights Movement

On Saturday my Mom and I visited the new Center for Civil and Human Rights here in Atlanta. It was a very interesting exhibit and I learned a lot about the background of the struggle for civil rights and some of the unsung heroes and martyrs of the movement.

I also learned something new about the 1963 March for Jobs and Freedom. I had known about the official title of the march, but many people forget that the march was also about jobs as well as segregation. What was new to me were the 10 demands the organizers wanted the march to push as part of the civil rights agenda.

The 10 demands were:

  1. Comprehensive and effective civil rights legislation from the present Congress – without compromise or fillibuster – to guarantee all Americans:

-Access to all public accommodations

-Decent housing

-Adequate and integrated education

-The right to vote

2.Withholding of Federal funds from all programs in which discrimination exists.

  1. Desegregation of all school districts in 1963.
  1. Enforcement of the Fourteenth Amendment – reducing Congressional representation of states where citizens are disfranchised.
  2. A new Executive Order banning discrimination in all housing supported by federal funds.
  1. Authority for the Attorney General to institute injunctive suits when any Constitutional right is violated.
  1. A massive federal program to train and place all unemployed workers – Negro and white – on meaningful and dignified jobs at decent wages.
  1. A national minimum wage act that will give all Americans a decent standard of living. (Government surveys show that anything less than $2.00 an hour fails to do this.) [The minimum wage at the time of the march is $1.15/hour.]
  1. A broadened Fair Labor Standards Act to include all areas of employment which are presently excluded.

10. A federal Fair Employment Practices Act barring discrimination by federal, state, and municipal governments, and by  employers, contractors, employment agencies, and trade unions.

Looking at the list of demands we see many have been met in some way. In regards to demand number 1, we have a civil rights law that bans racial segregation in public accommodations, housing, education, and voting. As to demand number 2, federal funds can not fund segregated programs. Number 3 has been achieved, but many would argue that there is still de facto segregation within certain school districts. Number 4 has been achieved, but the law has been progressively weakened by conservatives in the courts and legislatures. Number 5 exists and so does number 6. Number 10 was introduced as part of Title VII of the Civil Rights Act of 1964.

Demands numbers 7,8, and 9 are where we see there is still work to be done before we can claim the March for Jobs and Freedom achieved all of its goals.

There has never been the kind of concerted effort to train and place all unemployed workers. A lot of lip service has been paid to skills and training. Not much has been done to provide the necessary training for unemployed black and white workers. Demand number 7 has not been met even though it seems like with globalization and technology based deskilling it is more important than ever to help train the unemployed for new positions.

The minimum wage is still a hot topic of debate today. A number of states passed ballot measures in the 2014 midterms that raised the states’ minimum wage. Even deep south states like Arkansas passed a measure so raising the minimum wage seems like a popular policy. Back in the 60s it was an issue too. With the minimum wage being $7.25 nationally we still do not have a minimum wage that “give[s] all Americans a decent standard of living.” Even if we raise the minimum wage to the $10.10 proposed by President Obama it would still probably be too low to provide that reasonable standard of living in many areas of the country.

Demand 9 is something that immediately caught my eye. The Fair Labor Standards Act is the 1938 law mandating overtime pay for all hours over 40 worked in a week, among other protections and requirement. When it was first introduced the FLSA purposely left a number of different categories of employees outside of its protection. The types of employment outside of the protections FLSA were typically the types of jobs worked by African-Americans. Jobs in agriculture and private homes (servants etc.), for example, were explicitly denied FLSA protection. These restrictions were done to gain support for passing the FLSA from southern, “Dixiecrat”, Democratic members of Congress. Jim Crow was still alive and well in 1938. the Democratic coalition relied on racist southern elements for its congressional majorities.

Today some of the original exceptions still exist. For example, agricultural workers are still exempt from the overtime provisions with the FLSA. “Live in domestic workers” are also still exempt from the overtime requirements of the FLSA.

President Obama has been working to push forward some parts of the goals of the original March for Jobs and Freedom. In the context of the FLSA, the Department of Labor has recently tried to extend FLSA protections to a job with a large number of female and people of color employees, home health care workers. The change was supposed to go into effect January, 2015. Pressure from state medicaid offices and home health aide provider lobbies convinced the Department of Labor to postpone imposing the new regulations.

The March for Jobs and Freedom had laudable goals and thankfully many have been met. There is still work to do and it honors those original marchers when we fight to realize all of their goals.