The Fair Labor Standards Act – How Does Anyone Know What It Means?

Posted on December 17, 2009 by Robert Ottinger

The Fair Labor Standards Act was enacted in 1939 and it is 49 pages long.   Here is the whole text of the act.  Go ahead, click on it and read it.  I dare you.  Reading the entire FSLA is up there with reading War and Peace with many characters with long Russian names like Prince Andrei Nikolayevich Bolkonsky and Countess Natasha Ilinichna Rostova ( I looked them up on Wikipedia).

I just read the FSLA a few times trying to get to the source of a legal issue.   I read a bunch of cases on it and articles and a treatise   Frankly, what were they all smoking?  I cannot find support in the text for much of what they say.  The FSLA is cryptic.  You need to read it like you are staring at the Mona Lisa and try to understand the hidden meaning of subtle signs.   Like the Mona Lisa, it can mean something different to everyone who looks at it. Who knows what the authors really meant.  It is not clear.  Maybe all the judges and writers who have interpreted the FSLA know someone who was there when it was enacted so long ago.   If you take the time to read the FSLA, there is only one thing to take away from it.   It needs to be re-written.  Until then, lawyers will have a blast because its vagueness is an invitation to argue.

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Retaliation – One Degree of Separation

Posted on December 17, 2009 by Robert Ottinger

Suppose you and your spouse work for the same company and your spouse is one of those rebel rousing whistle blower types.   First, consider finding a new job or a new spouse.  But if you can’t do either, then you should carefully the track the outcome of Thompson v. North American Stainless.  

That case is pending before the U.S. Supreme Court and it involves a man who was fired shortly after his fiancee filed an EEOC charge against their common employer.   The Court will decide if the anti-retaliation provisions of Title VII extend to third-parties.     Thanks to Ross Runkel at the Law Memo for reporting this development. 

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California Clarifies the Salary Basis Test

Posted on December 16, 2009 by Robert Ottinger

Betsy Johnson at the Wage & Hour Defense Blog posted a detailed review yesterday of a new opinion letter from the California Labor Commissioner regarding the salary basis test.  The opinion letter itself is a whopping 13 pages long.  If you don’t have 2 hours and 3 cups of coffee to get you through it, here is what it says in a nutshell.

A company is free to make hour-for-hour deductions from accrued leave for partial day absences by exempt employees without violating the salary basis test.   But they cannot make partial day deductions from salary.

For anyone who is not familiar with the nuances of California overtime law, the salary basis test requires employers to pay salaried employees a set rate for each day worked.  If an employer makes salary deductions for sick time, the employer risks losing the overtime exemption not only for that employee, but all other salaried employees as well.   This new opinion by the Labor Commissioner gives companies more leeway to make deductions from accrued leave for sick time, but partial-day salary reductions are still prohibited. 

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Does Overtime Pay Really Exist in California?

Posted on December 12, 2009 by Robert Ottinger

 

Before going to law school, I spent summers working on a construction crew and I worked a lot of overtime.  But I was never paid a nickel in overtime.  Legally, I was entitled to overtime pay.  Legally, most people are also entitled to overtime pay.   Realistically, most people don’t get paid overtime even though they should. 

How can this be stopped?  

Since I run an employment law firm that handles overtime cases, I think that you should call my law firm.  But, you do have several options.   Basically, there are two ways to enforce your overtime rights – call the government or call a law firm.   Either one can help you.  

The California Department of Industrial Relations, Wage and Hour section, enforces the overtime laws.   Employees can file a wage claim by clicking here.  You can read the Department’s frequently asked questions also.   Or click here to find your local office to get more information in person. 

Another option is to contact a law firm that focuses on overtime cases.  A good resource for finding quality law firms that practice employment law is the National Employment Lawyers Association.   Many of these law firms handle overtime cases.  You can find a list of member law firms in your area by clicking here. 

Overtime pay does exist in California.  But, often, employers have to be “encouraged” to pay it by filing a claim with the government or through a law firm. 

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