Tag Archives: Fair Labor Standards Act

Department of Labor Weighs In on New Age of Salary Servitude for ‘Executives’

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Most of the U.S. workforce has the right, provided by the Fair Labor Standards Act, to be paid overtime for working more than 40 hours in a week. Before the federal government set rules for overtime, most employees worked longer hours, and millions of Americans worked six or seven days a week, as Chinese factory workers do today. Salaried workers also have the right to be paid a premium for overtime work, unless they fall into an exempt category as a professional, an administrator, or an executive. Exempt employees must be skilled and exercise independent judgment, or be a boss with employees to supervise. However, many companies have worked to get around these overtime rules by classifying employees like cooks, convenience store employees or restaurant workers as “managers,” “supervisors,” or “assistant managers or supervisors,” so that their employer can deny them overtime under this exception. 

In May 2016, the Department of Labor issued its final rule establishing a new minimum salary threshold for the white-collar exemptions (executive, administrative and professional) under the Fair Labor Standards Act. This new threshold of $913 per week ($47,476 annualized) more than doubles the current minimum weekly salary threshold of $455 per week ($23,660 annualized).  While that may seem like a huge increase, the old threshold level is only $2 a week above the poverty level for a family of four. Twenty-one states have filed suit to challenge this rule, citing the rule will force many businesses, including state and local governments, to unfairly and substantially increase their employment costs. 

The old rule allowed companies to put employees on “salary” at a low rate and require them to work sometimes significant overtime. The fact that so many government entities are concerned about this new rule substantially increasing their employment costs underscores the extent to which even government entities have taken advantage of employees in this fashion. Can you imagine earning $25,000/year and having to work 50, 60 or 70 hours a week? Even at 50 hours a week, that equates to an hourly wage of only $8.01!

In the first year, the department estimates that the new rule may affect, in some manner, over 10 million workers who earn between $455/week and the new $913/week threshold.  

The median worker has seen a wage increase of just 5 percent between 1979 and 2012, despite overall productivity growth of 74.5 percent (Mishel and Shierholz, 2013), according to the Economic Policy Institute. One reason Americans’ paychecks are not keeping pace with their productivity is that millions of middle-class and even lower-middle-class workers are working overtime and not getting paid for it. Before this rule change, the federal wage and hour law was out of date. This change purports to correct this modern day servitude that the law – for the last 30 years – has carved out a huge exception, allowing workers to be taken advantage of simply by assigning them a title and paying them a salary.  

 

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The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in employment law, Government, Legislation and tagged , , , .

Nebraska Employers Should Be Required to Post Information about Workers’ Compensation Benefits

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hanging-300x300The federal government requires that employers post summaries of rights under laws like the Fair Labor Standards Act (FLSA), the Occupational Safety and Health Act (OSH) and anti-discrimination laws like Title VII at their worksites. Most states, including Nebraska, have similar requirements. But Nebraska is among a minority of states that does not require employers to post notices about an employee’s rights under our state’s workers’ compensation act. This lawyer believes that this practice needs to change in Nebraska.

My informal inspection of worksites in Nebraska has shown me that when anything is posted about workers’ compensation, it is usually a poster about treating with an occupational medicine clinic if a person is hurt at work. The problem is that if you are hurt on the job in Nebraska, you can pick your own doctor. If an employee doesn’t exercise the right to pick their own doctor, they are taking the risk of undercutting their workers’ compensation claim.

Illinois has a good poster that explains an injured employee’s rights and responsibilities under their workers’ compensation act. I particularly like the Illinois poster because it tells employees that 1) they have some right to pick their own doctor and 2) they can’t be discriminated against for filing a claim. To me, the Illinois poster reads a lot of what an attorney like me would tell a prospective client who called with a work injury claim.

But not all posters are created equal. I think Kansas provides an example of a poster that doesn’t really help employees. Though the poster is bilingual, it doesn’t really tell employees anything about their rights and responsibilities besides what they need to do to file a report of injury. The poster also encourages workers to call their employer’s workers’ compensation insurer or claims administrator for help. This is problematic, because employees and employers don’t always have the same interests in a workers’ compensation claim.

My view is that readily available, accurate and unbiased information is good for injured employees to protect their rights under any state’s workers’ compensation act. I think posters like the Illinois poster meet these qualifications. Of course, detractors might say that employees can readily find information on the internet, so posters are a relic of the 20th century.

In response, I would say that information off the internet isn’t always reliable. Part of the reason has to do with how search engines work. Marketers and lawyers try to game the system so when an injured worker is looking for a lawyer, those firms always show up in searches. Frankly, that’s part of the reason I write blog posts like the one you are reading now. Even though I try my best to explain the law accurately, I have a slant toward representing employees, so I can’t claim to be unbiased.

But a good poster or summary of rights is about as close to unbiased as you can get. Employers also have some fear of displaying unbiased information about workplace rights in the workplace. Some employers fought a poster from the National Labor Relations Board (NLRB) informing employees about their right to form a union.

Knowledge is power, which is why I believe all Nebraska employees should have complete, unbiased and clear information about their rights under the Nebraska Workers’ Compensation Act readily available in their workplace.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Why CNAs and Home Health Aides Should Care about the Fight over a Federal Regulation

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090429-A-0868C-005A U.S. District Court in Washington, D.C., recently struck down a federal regulation that would mandate that home health aides are paid the minimum wage and paid overtime under the federal Fair Labor Standards Act (FLSA). Though the decision will likely be appealed, this decision is still a bad decision for the men and women who do the hardest jobs in health care – home health aides and certified nursing assistants.

Why home health aides aren’t covered by federal wage laws

Home health aides were exempted from the FLSA 40 years ago in order to make caring for the elderly less expensive. However, companion care has become a big and very profitable business. An index of publically traded home-health-care stocks has consistently outperformed the stock market as a whole for the last 13 years. This profitably is due in part to the minimum wage and overtime exemptions for home health aides.

How the home health exception affects other jobs in the medical field

The federal government estimates that nearly 1 million are employed as home health aides, while private sources estimate that number as 2 million. Home health is also a fast-growing field of employment. Home health aides essentially have the same job duties as certified nursing assistants (CNAs). CNAs are generally covered by minimum wage and overtime laws, but workers with the same skills and same duties are exempt from those laws if they are working as home health aides. CNA wages are pushed down by home health aide wages, which are exempt from federal wage laws.

Why pay is about more than wages

A recent study of CNAs showed that nearly 60 percent of CNAs report injuries during a 12-month period. The injury rate is similar for home health aides. The study also showed that higher-paid CNAs were injured less frequently than lower-paid CNAs. The study indicated that organizational factors really drove injury rates among CNAs. In other words, in settings where CNAs are truly valued, paid fairly and trained, the injury rates are lower. But if CNAs are treated as low-wage, high-turnover cogs in a machine, then injury rates are higher. Low pay for CNAs and home health aides isn’t just an issue for employees. Low pay for home health aides and CNAs has been linked to poor patient care.

While the Obama administration has been criticized for being too aggressive in enforcing the FLSA, the U.S. Department of Labor announced that they will delay enforcement of the home health aide regulation until July 2015. This assumes courts will let the Department of Labor actually enforce the regulation. Anyone concerned about this issue should contact their members of Congress to support legislation that ends the home health aide exception. People should also contact their state legislators to support legislation that would ensure that home health aides are covered by state wage and hour laws.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in employment law, Health, healthcare, Workers' Compensation and tagged , , , , .

Back to Downton Abbey – Why You Should Care About a Seemingly Ho-hum Supreme Court Case

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downtown abbeySo what does Downton Abbey have to do with a seemingly ho-hum recent Supreme Court case about pension benefits for union retirees? Lots.

The decision in question is the recent Supreme Court decision of M&G Polymers USA, LLC v. Tackett. In that case, the U.S. Supreme Court unanimously overturned a decision by the 6th U.S. Circuit Court of Appeals that interpreted the Labor Management Relations Act ruling that health care benefits for union retirees continue permanently, even if the collective bargaining agreement expires. In other words, even if a collective bargaining agreement ends, the company is still on the hook for health care benefits for retirees.

The Supreme Court ruled that since that understanding wasn’t explicitly spelled out in the contract, then the union retirees were out of luck. The Supreme Court relied on supposed “common law” principles to arrive at this result. Common law was developed by courts in England and transported across the Atlantic to the United States in the 17th century. It was a system that largely favored the Lord Granthams of the world. For example, there was no such thing as “workers’ compensation” or “employment law.” There was the “law of master and servant.”

If you watch Downton Abbey or know much about the history of the late 19th and early 20th centuries, the “servants” weren’t pleased with this arrangement. So starting in the 1910s, state legislatures started passing workers’ compensation statutes. In the 1930s and 1940s as part of President Franklin Roosevelt’s New Deal, Congress started passing laws like the Labor Management Relations Act and the Fair Labor Standards Act, which gave employees protections in addition to what they had under the common law. This expansion of employee rights continued with the Civil Rights Act of 1964, as well as the Americans with Disabilities Act, passed in 1990 and amended in 2008, and the Family and Medical Leave Act in 1993.

No law passed in the last 100 years that protects the rights of employees really has any basis in the common law, so when the Supreme Court starts using 18th century English law to interpret those laws, then employees should be concerned.

Lay people who follow politics may get confused by a 5-4 split. What happened there was that the four Democratic-appointed justices, Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Stephen Breyer, agreed with the outcome of the case but not the reasoning used by five Republican-appointed justices, Chief Justice John Roberts, Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito. Of note, none of the supposed “liberal bloc” supported the decision made by the 6th Circuit Court of Appeals, which is the highest federal court for the states of Michigan, Ohio, Kentucky and Tennessee. The judges of the 6th Circuit are appointed by the president and subject to approval of the Senate, just like Supreme Court justices. It’s hard to argue that the judges of the 6th Circuit Court of Appeals are somehow out of the mainstream of legal opinion or radical bomb throwers.

Plaintiffs’ lawyers and union leaders who read this blog will sometimes lament how the blue-collar people we represent largely vote Republican, based on social issues and national security issues, even though their economic interests are aligned with the Democratic Party. But after reading M&G Polymers USA, LLC v. Tackett, can blue-collar conservatives be entirely blamed for not thinking the Democratic Party supports their economic interests? Maybe plaintiffs’ lawyers and union leaders are the real chumps for blindly supporting a national Democratic Party that seems to be indifferent to their interests and the interests of those they represent.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Employment, employment law, History, history of workers' compensation, Workers' Compensation and tagged , , , , , , .

What Does Supreme Court’s Warehouse Workers’ Ruling Mean?

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Last Monday, the U.S. Supreme Court ruled 9-0 that contracted warehouse workers for Amazon did not have to be paid for time spent waiting to clear through an anti-theft security screening after their shifts. Justice Clarence Thomas ruled that time spent in an after-work security screening was not integral and indispensable to the primary activity of a warehouse worker, therefore not covered under the federal Fair Labor Standards Act. So what does that mean for you?

First of all, this should mean that any worker who has to go through a security check after work will not have to be paid by their employer for the time that process takes. However other pre- and post- workday activities should still be covered under the Fair Labor Standards Act. Donning and doffing safety equipment is still compensable because such safety equipment helps an employee work safely. Call-center workers still should be paid for time spent booting up and logging into a computer and phone because a call-center employee is unable to do their job if they are not logged into their phones and computers. Employees should also consult with a lawyer about state wage and hour law as state law may be friendlier to employees.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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