Comma, comma, and comma!

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Did you eat eggs, toast, and milk this morning? What about eggs, toast and milk? Don’t see the difference? Well, unless you enjoy soggy bread, you might want to give that some further thought.

The Oxford Comma – also known as the Harvard or serial comma, this “optional” form of punctuation has become a popular subject for grammatical discourse. But aside from confused breakfasts, what’s the big deal? For a group of Maine dairy drivers, that little piece of punctuation just spelled out victory in court.

The labor dispute arose over alleged unpaid wages, with plaintiffs’ employer arguing the drivers were exempt under Maine’s overtime law which provides the following activities do not merit overtime pay:

The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:  (1) Agricultural produce;  (2) Meat and fish products; and  (3) Perishable foods.

Did you pick up on the difference there? The Court did. Specifically, the statute is ambiguous as to whether “packing for shipment” and “distribution” are separate activities.

According to the drivers, they distribute food but they don’t pack it. Had there been an Oxford Comma – isolating distribution as its own activity – plaintiffs would have been clearly exempt from overtime wage. However, without that separation, the phrase may equally be read as “packing for shipment” or “packing for distribution”. And because labor laws are designed to protect employees, when an ambiguity exists it should be construed in their favor. The Court upheld that notion here in a victory for grammar purists everywhere.

How does your toast and milk sound now?

Taking Care of Business… and Working Overtime?

resized_mr-t-time-meme-generator-wheres-my-overtime-fool-efd756“Who’s that over there. Looks like he don’t care.
Almost lost his mind. Too much working overtime”

New Order

How many hours would you say you work per week? Are you paid for overtime? Well… should you be?

Despite what you might have thought, overtime (“OT”) is not exclusive to hourly employees. Yes, you read that right – even salaried employees may be eligible for overtime pay.

A “full-time” job is typically considered to be 40 hours per week. (If that’s all you work, I’m jealous). If you work more than that, generally speaking, you are entitled to receive “overtime pay”. For federal employees, governed by the Fair Labor and Standards Act (“FLSA”), this means 1.5x your regular pay for every additional hour.

[Note: The FLSA only covers federal employees. Private sector employees must look to their state’s laws and regulations]

Whether a salaried employee is eligible, however, depends on a two-part analysis: whether the position (a) falls within a recognized exemption, e.g. “executive”, “administrative”, or “professional” (as classified by the role’s primary duties), and (b) earns a certain minimum salary.

Exemption Primary Duties

The following positions are (in conjunction with the salary requirement) generally considered exempt / not eligible for OT:

1. Executive: the “management of the enterprise in which the employee is employed, who customarily and regularly directs the work of two or more other employees, and who has the authority to hire or to fire other employees or whose recommendations as to hiring or firing, advancement or promotion or change in employee status are given particular weight.” (aka, boss man)

2. Administrative: the “performance of office or non-manual work directly related to the management or general business operations of the employer, and whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.” (aka, manager)

3. Professional: the “performance of work requiring the knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction or requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.” (aka, general professional)

Yes, all of these are salaried positions. And yes, if the primary duties do not fall within any of the above, you may be entitled to receive overtime pay – regardless of what your boss might be telling you.

Compensation Rates

Even if the position falls within one of the above categories, you must still be earning a minimum amount per year to be exempt from OT. That is, if you earn less than the required amount, even if you are classified within one of the above categories, you should be reading this carefully…

Up until now, the minimum cap has been set quite low (relatively speaking for the positions entailed) at $455 per week (or $23,660 per year). Up until now, I say, because the Department of Labor (“DoL”) just proposed doubling the minimum salary requirement!

In what would be a game-changing revision to the FLSA, the DoL’s proposed regulation would raise the minimum bar to $970 per week (or $50,440 per year). Impressed? Well, what if I told you that this raise would provide a projected 5 million additional employees around the nation the right to OT pay?!?

… Are you one of them?

“Permitted” to work, or do you “suffer”?

Heigh-ho, heigh-ho, it’s off to work you go….

Employees Wash Hands

But as an independent contractor? An employee? If so, of whom? The staffing agency? The company? OY! It’s never simple, is it?

You may not always realize it, but the classification of your employment has long-reaching consequences and implications. From taxation, to right-to-sue (and under which laws), and even whether certain benefits are mandatory (feel free to see my prior blog post on the new sick leave policy), the manner of your employment is a critical factor in determining your rights and liabilities.

Over the years, the Department of Labor (“DOL”) and various independent cases have grappled with the definitions of “employee” and “contractor”. A hallmark factor has long been the level of control exerted over the individual, including both job function and financial dependence (see, Lemmerman v. A.T. Williams Oil Co., 350 S.E.2d 83 (N.C. 1986) for an interesting history on this through child labor). Last week, however, the DOL issued an Administrator’s Interpretation expanding upon and clarifying these classifications.

Generally speaking, to “employ” is “to suffer or permit to work.” 29 U.S.C. 203(g). Sounds great, right? [Better than “permit to suffer”!]. What this really means is that to “employ” is to create an economic dependence. This latest Interpretation focuses the review on whether the worker is “economically dependent on the employer” (and thus its employee) or is “really in business for him or herself” (and thus its independent contractor).

In line with this trend, a recent 4th Circuit case out of North Carolina found an individual to be an “employee” of both the staffing agency AND the company of placement, despite extraordinary efforts to by the company to avoid this very outcome (i.e. separate parking, paid by the agency, agency uniforms, etc.). In reaching this decision, the Court provided the following 9-factor test on classification:

  1. Authority to hire and fire
  2. Day-to-day supervision, including ability to discipline
  3. Who furnishes equipment or the place to work
  4. Possession of and responsibility for employment records, including payroll, insurance, and taxes
  5. Length of relationship
  6. Provision of training
  7. Similarity of duties as compared to company employees
  8. If worker’s assignment is to single entity
  9. Whether there is indication of intent to enter into employment relationship

 Before you go “yea yea, ok, whatever”, look at your own classification – – especially if you’re now an “independent contractor”. You may want to rethink the importance these 2 simple words have for you…

Get Sick, Go Home. Get Paid?

FERRIS BUELLER’S ACTUALLY REALLY SICK DAY OFF, FOR REAL THIS TIME?

Big Lebowski Sick Day

Do you get perks with your job? Perhaps a nice 401k retirement plan? Maybe casual dress Friday? How about paid time off (or “PTO”)? Believe it or not, all jobs are not created equal. Neither are employee benefit packages – particularly when it comes to PTO. But there is big news in Montgomery County, MD for hypochondriacs, germaphobes, and actual real sick people, too, with the enactment of a new mandatory paid sick leave law.

PTO is a great benefit, but often taken for granted. That is to say, not everyone gets it. Though many employers already provide vacation and sick PTO out of the kindness of their incorporated hearts, this has never been a guarantee or a mandatory requirement. With the enactment of the new Earned Sick and Safe Leave Act (“ESSLA”), however, illness just got a little bit… ill-er.

Effective October 2016, certain employers will now be required to provide mandatory paid time off for sickness. You can read the laundry list of eligibility criteria and caveats here. In short, however:

  • Sick PTO will accrue at the rate of 1 hour for every 30 hours worked, up to a maximum of 56 hours per year
  • Employers with fewer than 5 employees do not have to provide more than 32 hours of sick PTO per year
  • No employer is required to permit an employee to use more than 80 hours of sick PTO per year

Yes, there are still limitations and restrictions; this is not a blanket allowance for a Ferris Bueller styled day off around town. But when vacation PTO is still not a given, at least now you can ‘rest up’ a little easier knowing that your annual spring cold might get you a day or two off.

Document Review: If I Only Had A Brain…. I’d Have No Claim

BORING, TEDIOUS, AND INTELLECTUALLY VOID – – JUST WHAT THE FLSA ORDERED

Doc Review Pup

Document review work – the staffing of attorneys through contract agencies to perform the monotonous task of issue-tagging discovery documents for litigation. In other words, using your J.D. to click boxes based on a cursory glance at whether an email is responsive to the case. Booooringgggg. But that’s exactly why such work is readily available.

For a firm, paying its money-maker associates to perform document review is a waste of resources. Instead, it has become far more cost-effective to contract out the monotonous tasks to out-of-work attorneys. And when you can’t throw a nickel without hitting a new attorney, you know there’s a surplus to be utilized.

The issue with document review contract staffing, however, is whether it constitutes ‘legal work’. That is to say, courts are far and large undecided if these reviewers are actually engaged in performing legal work and therefore bound by the state’s rules. Washington, D.C. – a generally federal law district – remains particularly ambiguous as to which bar license is actually required to do the work. As if that wasn’t confusing enough, a recent claim under the Fair Labor and Standards Act has recently opened the door for greater firm liability in staffing these attorneys.

In a new second-circuit decision, Lola, et al. v. Skadden, Arps, et ano., 2d Cir., No. 14-3845, 07/23/2015, the Court of Appeals found in favor of the contract attorney’s claim that the document review services he performed did not constitute legal work. Under North Carolina state law, ‘practicing the law’ requires “the exercise of at least a modicum of independent legal judgment.” Because the plaintiff here alleged he used no such judgment, he properly stated a claim under the FLSA .

The key take away for reviewers – don’t feel too bad. We all know you’re using zero brain power and that your hard work in earning those letters “ESQ” are going to waste. But, sometimes that can work in your benefit.

The lesson for employers and staffing agencies – you better take another look at your compensation practices.