Working Hard For Working People

Department of Labor Proposes Wage Protections for In-Home Care Workers

The U.S. Department of Labor recently announced plans to update minimum wage and overtime regulations covering certain in-home health care workers. Since 1975, casual babysitters and companions for the aged and infirm have been exempt from coverage under the federal Fair Labor Standards Act (FLSA), and live-in domestic workers have been exempt from its overtime protections. "[T]he in-home care industry has undergone a dramatic transformation..." and "the earnings of in-home care employees remain among the lowest in the service industry, impeding efforts to improve both jobs and care." For this reason, the DOL has issued a notice of proposed rulemaking to clarify and limit the scope of the companionship exemption. Comments to the proposed rules are due by February 27, 2012.

Previant Legal Show: Collecting Unpaid Wages

Last week, on the Previant Legal Show, Attorney Yingtao Ho discussed what employees can do if they have worked but not been paid.

Collecting Unpaid Wages

 Tune into the Previant Legal show at noon on most Saturdays on 620 am in the Milwaukee area.

DOL Creates iPhone Application for Wages and Hours

The Department of Labor recently released its first ever iPhone application.  It is a timesheet application to record hours worked and determine wages owed.  The App is available in both English and Spanish.

Employees Who Make Oral Complaints About Wages Are Protected From Employer Retaliation

In an opinion released March 22, 2011, the Supreme Court ruled in Kasten v. Saint-Gobain Performance Plastics Corp. to extend protection from employer retaliation to workers who filed oral complaints under the FLSA. The Fair Labor Standards Act provides basic protections for workers ranging from minimum wage to overtime pay rules. The Act also provides protection for employees who file complaints from retaliation by their employer.

Kasten an employee of Saint Gobain, had given several oral complaints to the employer that it was failing to pay the employees for their time of putting on and taking off protective work gear at the job site as required under the Act. Kasten claimed that the employer then discharged him for making these complaints. When Kasten filed a suit in District Court alleging illegal retaliation under the Act the District Court ruled for the employer. The District Court held that the Act only protected employees who had filed a written complaint. As a result, Kasten’s multiple oral complaints to Saint Globan were ruled to provide him no protection from retaliation. Upon appeal, the 7^th Circuit Court of Appeals upheld the ruling.

In reviewing the decision, the Supreme Court voted 6 to 2 to overturn the decision and extend protection from retaliation to those who had filed oral complaints. In its published opinion, the Court argued that limiting the retaliation provision to only written complaints would undermine the Act’s basic objectives. The Court also found that Congress hand intended the Act to protect all workers including the illiterate, less educated, and overworked who were unable to commit their complaints to writing. Finally, the Court found that protecting only those who filed written complaints would ultimately undermine the Government’s ability to enforce it though means such as complaint hotlines.

Department of Labor Proposes "Right to Know" Rule under Fair Labor Standards Act

The Department of Labor (DOL) is considering promulgating regulations that updates the record keeping requirements for large categories of employees.  The DOL is considering a proposed rule entitled "Right to Know Under the Fair Labor Standards Act"  that would required covered employers to notify workers of their rights under the FLSA, and to provide information regarding hours worked and wage computation. 

Under the proposed rule, any employers that seek to exclude workers from the FLSA’s coverage will be required to perform an analysis as to whether the worker should be classified as an independent contractor, share the analysis with the worker, and retain that analysis to give to WHD enforcement personnel who might request it. The regulations under consideration will also address burdens of proof when employers fail to comply with records and notice requirements. The DOL's Wage and Hour Division also intends to propose "modernizing certain recordkeeping requirements for live-in domestic employees and persons considered industrial home workers under the FLSA."

Some Drivers May be Entitled to Overtime Pay

Under the Fair Labor Standards Act, drivers who commercially transport goods in interstate commerce are exempt from the requirement of overtime pay for hours worked over 40 per week.  29 U.S.C. 213(b)(1).  In the recent decision of Sedrick v. All Pro Logistics Case No. 07C5811 (N.D. IL. 6/8/2009), the court held that a driver who transported goods from one point in a state to another in the state has not engaged in interstate commerce, unless at the time of the transport there was an intent to later transport the goods out of state.  In Sedrick, the driver transports the goods to a central warehouse, where the goods are stored and wait for customer orders.  Therefore, at the time of the transportation it would be unknown who were the customers for the goods, and whether the goods would be eventually transported out of state.  The Court therefore held Sedrick was entitled to overtime pay under the Fair Labor Standards Act. 

Whether an individual driver is or is not covered by the overtime provisions of the Fair Labor Standards Act is a fact intensive analysis, and must be done on a case to case basis.  If you are aware of anyone who may have a claim on this issue, please contact the attorneys of Previant, Goldberg, Uelmen.   

Failure to Report Overtime May Not Preclude Later Recovery

In the case of Dixon v. City of Forks, #08-5189 (W.D. WA., 5/27/2009), the employee sued for time he spent taking care of a police dog while off duty.  The employee did not report the time taking care of the dog as work time on his time sheets, and was not paid for the time.   The Court held that the fact the employee did not report the time as work time did not preclude him from recovering pay for the time.  The fact the employee did not know at the time he worked the overtime that his time taking care of the police dog was compensable does not preclude him from recovering pay for the time.  The city also cannot claim that it lacked knowledge that the officer worked overtime taking care of the dog, despite the lack of a reference to the overtime on the time sheets, because there was separate evidence that the city was aware that the officer was taking care of the dog off duty.  The case can be found at: https://ecf.wawd.uscourts.gov/doc1/19713214722 (registration required).

Sixth Circuit Further Defines What Employees are Bona Fide Salary Employees

Under the Fair Labor Standards Act, employers do not have to pay executive, administrative, and professional employees overtime pay if they are compensated on a salary basis.  An employee is not compensated on a salary basis, if their pay can be reduced because of the quantity or quality of their work.  In the recent decision of Baden-Winterwood v. Life Time Fitness, #07-4437 (5/19/2009) , the Sixth Circuit held that difference standards apply to evaluate whether an employee was paid on a bona fide salary basis, depending on the time of payment.  For the time period before August 23, 2004, an employee is not paid on a bona fide salary basis if his pay is actually reduced because of the quality or quantity of work, or because the policy permits reductions for below standard quality or quantity of work, even if no such deductions were ever made.   For the time period after August 23, 2004, the "policy permits reductions" portion of the test is no longer applicable.  August 23, 2004 is the date when the Department of Labor's changed its regulation to remove the "policy permits reductions" portion of the test.

In the case, the employer claimed that it had a program of over-paying its employees, and to recover over-payments if their job performance did not match set bench-marks.  Under the FLSA, an employer may deduct genuine over-payments from the salary of employees.  The court held that over-payments refer to accidental or mistaken overpayments; so that overpayments pursuant to an established corporate policy do not apply.  The court therefore held the plaintiffs are entitled to overtime pay, since they were not paid on a bona fide salary basis.

Business on Tribal Land Subject to FLSA

In Solis v. Matheson, Case 07-35633 (April 20, 2009), the Court of Appeals for the Ninth Circuit addressed the issue of whether the Fair Labor Standards Act (FLSA), as a statute of genral applicablility, applied to a business owned and operated by members of an Indian Reservation and location on the tribe's reservation.  The business owners asserted that because the FLSA did not apply because it touched on exclusive rights of self-governance in purely intermural matters.  Citing Donovan v. Coeur d'Alene Tribal Farm, 751 F.2d 1113 (9th Cir. 1985).  The Ninth Circuit disagreed finding that there was no evidence that the tribe had "acted on its right of self-governance in the field of wage and hours laws and specifically with respect to overtime."  Thus, the court affirmed the holding that "there is nothing profoundly intramural or involving self-governance about the employment of Indians and non-Indians by a retail busienss engaged in interstate commerce..."  Id. at 4526.

The decision emphasizes the complexity of applying general employment laws to enterprises on tribal lands.  In evaluating the applicability of the FLSA to the business, the Court evaluated a number of cases involving employment laws including OSHA, ADEA, and the NLRA.  The evaluation of precdent in this case was specific to case law in the Ninth Circuit (Wisconsin is in the Seventh Circuit).   Although the holding found that the FLSA applies to this, the decision indicates that applying the FLSA is not automatic in every case.   

Fourth Circuit Narrowly Construes Exemption for Executive Employees

Under the Fair Labor Standards Act, employers do not have to pay overtime compensation to executive employees.  Executive employees are those who are paid at least $455 per week, who performs office or other non-manual work directly related to management or general business operations, and who exercises independent judgment in performing managerial work.

In the recent decision of Desmond v. PNGI Charles Town Gaming, 06CV00128 (4/30/2009), the Fourth Circuit Court of Appeals reversed the District Court, and held that officials responsible for administering horse races for an employer are not bona fide administrative employees.  The Court first rejected the test that an employee is an administrative employee, whenever he is indispensable for the employer's operation.  The Court then distinguished an employee who manages the employer's product, from an employee involved in administering the employer's corporate policies.  The fact the employees administered the horse race, the employer's product, does not show that they are also involved in administering the employer's policies.  By analogy, an employee who oversees an assembly line, but does not participate in formulating or administering employer corporate policies likely would not be an administrative employee. 

Whether an employee is in fact an administrative employee is a heavily fact-based analysis.  If you believe you or someone else may be an administrative employee who has not been paid for overtime work performed, please contact the attorneys of Previant, Goldberg.