New Laws Protect Pregnant and Nursing Workers

Two new federal laws that President Biden signed on December 29, 2022 will provide more protection for pregnant and nursing workers. While pregnancy discrimination is already illegal, these laws provide additional protection. 

Pregnant Workers Fairness Act: This law goes into effect on June 27, 2023 and applies to discrimination claims after that date. This law makes clear that employers with at least 15 employees must provide reasonable accommodations to pregnant workers unless providing the accommodation would cause an undue hardship on the employer. This makes pregnancy accommodations similar to disability accommodations, but pregnant workers only have to prove pregnancy, not a disability. The requirement of accommodation is triggered by a "known limitation" of pregnancy. 

This law clarifies the Pregnancy Discrimination Act, which didn't mention accommodations. The Supreme Court held in 2015 that employers must grant accommodations to pregnant employees if they provide such accommodations to other similarly-situated non-pregnant employees. The cases have been all over the place on this, so this new law makes the requirement very clear.

Cases under this law are handled the same way Title VII claims are handled.

Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP for Nursing Mothers Act): This law amends the Fair Labor Standards Act to require employers to provide reasonable break times to all nursing employees, and a private place to express breast milk. This law came into effect on December 29, 2022. Employers with less than 50 employees will be exempt if compliance creates an undue hardship. Employees who work remotely have the same entitlement to breaks as other employees and must be able to do so without being observed by employers. 

The Fair Labor Standards Act already provided for break time and private space for most employees, but this law expands that protection to employees who were considered exempt from overtime and remote workers. 

Breaks are only paid if they are less than 20 minutes or if the worker is not completely relieved from duty during the break. 

Employers who break this law or who retaliate can be liable for lost wages, liquidated damages, compensatory damages, other economic losses, and even punitive damages.

See what happens when you vote well? Keep voting well, and keep fighting for employee rights.

Department Of Labor Gives Examples of Illegal Retaliation

The U.S. Department of Labor has provided a guidance that gives specific examples of what constitutes illegal retaliation. The complete guidance is here. Some specific examples they provided are:

Example 1: Employee calls WHD about overtime. 

Nelson works as a cook at a restaurant and contacts WHD confidentially to inquire about overtime pay. Nelson tells another cook what he learned from WHD and his co-worker tells someone on the wait staff. Later that day their manager overhears two wait staff talking about the call and terminates Nelson’s employment. In this scenario, terminating Nelson’s employment because he contacted WHD (or was suspected of contacting WHD) would be prohibited. WHD may investigate or Nelson may file a private cause of action seeking appropriate remedies, including, but not limited to, reinstatement, lost wages, and liquidated damages. 

Example 2: Employee asks for additional break time to express breast milk. 

Aisha is a new mother who works for a call center. She uses her lunch break to express breast milk and needs additional time to finish pumping before she is able to return calls at her work station. Her boss complains when she is late returning from lunch and tells her she cannot use any time beyond her meal break for “personal stuff.” When Aisha asks if she has a right to take another break for pumping later in the day, her boss sends her home for the rest of her shift without pay. In this scenario, Aisha was sent home for attempting to exercise her rights under the FLSA. After investigating, WHD, in addition to requiring the employer to provide the requisite time and space for nursing mothers in compliance with the law, determines Aisha may also be entitled to back pay and liquidated damages for wages she lost when her boss sent her home in retaliation for requesting a break. 

Example: Worker penalized for using FMLA leave to care for child. 

Jaime takes approved FMLA leave to care for his seven-year-old daughter when she is in the hospital overnight and recovering from surgery. Jaime returns to work as scheduled but receives three negative attendance points for the days he used FMLA leave. Under his employer’s no fault attendance plan, employees are allocated points for every absence from work, regardless of the reason for the absence. Employees are disciplined when they accrue a set number of points, and employees who accrue more than ten points in a calendar year may be terminated. 2 A state employee’s private right of action may be limited by the sovereign immunity provision of the Eleventh Amendment. Id. 6 In this scenario, assigning attendance points to Jaime’s FMLA-protected leave days would be prohibited. Under the FMLA’s anti-retaliation provisions, an employer may not use the taking of FMLA leave as a negative factor in employment actions and may not count FMLA leave days under no fault attendance policies. In an investigation, WHD would require that the employer remove the attendance points from Jaime’s employment record for the days he used FMLA leave to care for his daughter. 

Example: Employee returns to work and her hours are cut in half. 

Deborah used FMLA leave from her job as a front desk clerk at a hotel when she suffered from migraine headaches that made it impossible for her to work. She was approved for FMLA leave and used it for three days in January and one day in February. In April, she had another episode, and used FMLA leave for two days. When she returned to work her new manager reduced her schedule from 40 hours to 20 hours a week saying they need workers who will show up every day. WHD completes an investigation and requires the hotel to return Deborah to her previous schedule and pay her for an additional 20 hours a week in wages for the duration of the period she worked the reduced schedule. WHD also requires the employer to pay Deborah an amount equivalent to her lost wages in liquidated damages. 

Example: WHD investigates and employer fires crew of agricultural workers. 

An employer houses 15 migrant agricultural workers in housing that is determined to be substandard. Workers sleep on the floor, have no electricity, use water from a garden hose, and have one hotplate for cooking that is shared among all of the workers. After a WHD investigator arrives at the location unannounced to inspect the housing conditions and interview workers, the employer fires all 15 workers because, “We don’t want any whiners on the team.” The employer does not pay the workers for their final week of work. In this scenario, WHD may pursue back pay, and reinstatement of employment for every worker, and civil money penalty assessments against the employer.

Example: Worker threatened with deportation. 

An employer participating in the H-1B visa program hired seven workers with H-1B visas to provide occupational, physical, and speech therapy services to patients in their homes. The employer deducted a monthly sponsorship fee from the pay of each worker with an H-1B visa. The employer required the workers to sign a form declaring that the deductions were for recouping personal loans it purportedly gave to the workers. When one worker refused to sign the document, the employer threatened him with deportation, criminal perjury, and threats of physical violence against his family in his home country. In this scenario, WHD may pursue back wages for the illegal deduction, civil money penalties against the employer for the retaliation, debarment from the H-1B program for two years, and other appropriate legal or equitable remedies. WHD also may, potentially, make a referral to the U.S. Department of Justice, Civil Rights Division, Immigrant and Employee Rights Section.2F 3

Example: Supervisor lies about employee’s performance history because of WHD interview. 

Charlotte is an employee at a vehicle assembly plant where WHD conducts an LVC compliance verification under the USMCA. She was instructed by her immediate supervisor to tell WHD representatives that she earns $16 an hour despite the fact that she actually earns $13.50 an hour. After the WHD representatives leave the worksite, Charlotte’s supervisor asks her what she said to WHD representatives. When Charlotte states that she told the truth, the supervisor fabricates a story of insubordination that results in the termination of Charlotte’s employment. Charlotte had no prior occurrences of corrective action and was otherwise in good standing with her employer. In this scenario, after investigating and verifying that Charlotte was retaliated against for cooperating with a WHD investigation, WHD may pursue lost wages, reinstatement, and the assessment of a civil money penalty.

Example: Federal contract worker’s promotion denied after they inquire about sick leave. 

Bernard works on a federal contract covered by EO 13706. He is a supervisor of maintenance services at a national park and is about to be promoted. When Bernard emails his employer, the contractor, asking about the availability of paid sick leave to attend his spouse’s upcoming medical appointments, his planned promotion is cancelled and he is rescheduled from working weekdays only to weekdays and weekend shifts. When Bernard asks about the changes, his manager states the changes were made so that he would have fewer responsibilities at work and more time available to help with his wife’s health care. A representative for the national park (the contracting agency) who communicates with Bernard about work orders during the week, contacts WHD on Bernard’s behalf. In this scenario, WHD may investigate to determine whether the maintenance contractor has violated the anti-retaliation provisions of the EO and its regulations. The employer may be required to grant Bernard the promotion and return him to his previous work schedule and duties. He may also receive back wages to compensate for any difference in wages received compared to the wages he would have received if the retaliatory actions had not occurred. 

Example: Contract worker asks about deductions from pay and is denied bonus.

Geri is a crewmember working on the construction of a new post office building for a federal contractor covered by EO 14026. Geri asks her company payroll department about deductions from her paycheck that may bring her earnings below $15.00 per hour. The payroll department refers her question to a corporate officer of the company who directs the payroll department to cancel Geri’s quarterly performance bonus. In this scenario, a retaliatory denial of the bonus would be prohibited by EO 14026. WHD may investigate, determine the employer violated the EO, and require payment of the bonus and other wages that may be due if the deductions were improperly made.

These are just a few examples they provide for retaliation. The agency also describes retaliation in general:

Retaliation occurs when an employer, including through a manager, supervisor, administrator or other agent, takes an adverse action against an employee because they engaged in a protected activity.

 Examples of protected activity include making a complaint to a manager, employer, or WHD; cooperating with a WHD investigation; requesting payment of wages; refusing to return back wages to the employer; complaints by a third party on behalf of an employee; consulting with WHD staff; exercising rights or attempting to exercise rights, such as requesting certain types of leave; and testifying at trial. 

Under many of the statutes enforced by WHD, an employee can be protected from retaliation even if the employee’s complaint to the employer or WHD is based on a mistaken belief that the employee’s rights have been violated. For example, if a worker believes, and so tells an employer, that he is owed overtime pay for the hours he worked, the worker has engaged in a protected activity, even if the worker’s belief that he is due overtime turns out to be mistaken because he has been correctly paid. 

An adverse action is any action that could dissuade an employee from raising a concern about a possible violation or engaging in other protected activity, such as filing a complaint or cooperating in a WHD investigation. An adverse action taken by an employer can take many forms, including termination; confiscating a worker’s passport or other immigration documents; disciplinary actions; threats to employees, their families or co-workers; reduction of work hours or rate of pay; shift changes or elimination of premium pay; blacklisting; and demotion. Adverse actions can be subtle, such as excluding an employee from a regularly scheduled meeting, or overt, such as intimidating employees to return back wages found due (“kickbacks”), threatening an employee with deportation, or terminating an employee. 

Bottom line: If you think you've been retaliated against for objecting to something illegal your employer did, for contacting a government agency, or for taking protected medical leave, you should talk to an employment lawyer in your state about your rights. 

 

If My Office Is Closed Due To Winter Storms, Do I Get Paid?

With big storms hitting all over, even places like Texas that aren't used to snow closings, I thought I'd better re-run this ever-popular and necessary piece.

Whether you’re entitled to be paid when the office is closed depends on whether you are “exempt” salaried or not. Just being salaried doesn’t necessarily mean you aren’t entitled to overtime. It’s possible to be salaried and still non-exempt from the requirements of the Fair Labor Standards Act. Many employers misclassify employees as exempt to avoid paying overtime. If you work more than forty hours per week, it’s better to be non-exempt. But in the case of weather and emergency closings, it’s probably better to be exempt.

Exempt employees: If you’re exempt and you worked any portion of the work week, you have to be paid your entire salary, whether or not the office is closed for a natural disaster such as hurricane, snow, tornado, or flood. Further, Department of Labor regulations state, “If the employee is ready, willing and able to work, deductions may not be made for time when work is not available.” This would include natural disasters, so if you are able to work after a storm then you must be paid even if you didn’t work any portion of the week. If you can’t get there on time or have to leave early due to the flooding but the office is open, they can’t deduct for any partial days you worked.

Vacation time and PTO: Your employer can deduct from your vacation time or PTO for the time taken. However, if you have no accrued vacation or PTO time available, they still can’t deduct from your pay if you’re exempt.

Non-exempt employees: If you are non-exempt, then your employer doesn’t have to pay for the time the office is closed. However, if your company takes deductions and you’re a non-exempt salaried employee it may affect the way overtime is calculated.

Who Is Exempt?: You’re not exempt unless you fall into very specific categories, such as executives, administrative employees, or learned professionals. Plus, your job duties must fall within those categories, not just your title. In addition, your employer must treat you as exempt by not docking your pay when you miss work. This is one of those rare times when it's better to be exempt, so it's the one time you can be glad that President Obama's overtime expansion was gutted.

Pay For Reporting To Work: If you report to work after a natural disaster, only to find out that the workplace is closed (assuming they didn’t notify you), many states have laws that require your employer to pay you a set minimum amount of time if you show up as scheduled. Florida has no such requirement and neither does Texas, (so maybe it’s a good time to start complaining to your legislators).

Disaster Unemployment Benefits: If you live in in an area declared a disaster area, you may qualify for disaster unemployment assistance. Here's where to start for Texas disaster unemployment assistance. I don't think any other areas have been declared yet, but here's where to start searching to see if you can get disaster unemployment assistance.

If you’re hit or have already been hit with a big storm, get in touch with your supervisor or manager as soon as possible to find out whether or not you’re expected to be at work. If you can’t get in touch with anyone, then only go in if it’s safe for you to do so.

What Every Teen Needs To Know About Getting Paid At Work

I wrote about general workplace rights teens and young adults need to know. And before that I wrote about workplace sexual harassment. But there's even more you probably didn't learn about work when you were in school. I bet your high school and college didn't tell you about what you're entitled to be paid under the law, what hours you're allowed to work, how to figure out if your internship should be paid, and allowable work breaks, did they?

If you're a teen or young adult starting or looking for a summer job or internship, getting paid (or getting a meaningful learning experience) is one of the most important things. Otherwise, you could be at the beach or ziplining. If you're a parent, friend, guardian or relative of someone entering the workforce for the first time, make sure they know their rights on getting paid. Otherwise, they'll be hitting you up for funds, right? No worries. 

Read my article What Every Teen Needs To Know About Getting Paid At Work to find out what you need to know about teen and young adult wages, hours, unpaid internships and breaks.

Reason For Outrage On Sunday: Unpaid Super Bowl "Volunteers" Are Illegal

The NFL will have an estimated 13,500 "volunteers" working at the Super Bowl. The NFL just announced that 1500 of these "volunteers" will now be paid. The rest will have to sign waivers agreeing not to sue, not to participate in a class action suit, and to arbitrate if they do sue.

Since when is the NFL a not-for-profit agency? Am I missing something? There's no such thing as an unpaid volunteer working for a for-profit company. Period. Ask Major League Baseball, which is now defending against a class action suit for all the "volunteers" it had working  without pay at for profit events. The NFL, which makes about $10 billion a year, can afford to pay minimum wage to its workers.

Imagine Goldman Sachs or Burger King soliciting volunteers to come work for them. We'd be outraged. So why is there little outcry when one of the most profitable for-profit enterprises solicits thousands of people to work for free?

Here's what the Department of Labor has to say about when volunteers may work without pay:

The Fair Labor Standards Act (FLSA) defines employment very broadly, i.e., "to suffer or permit to work." However, the Supreme Court has made it clear that the FLSA was not intended "to stamp all persons as employees who without any express or implied compensation agreement might work for their own advantage on the premises of another." In administering the FLSA, the Department of Labor follows this judicial guidance in the case of individuals serving as unpaid volunteers in various community services. Individuals who volunteer or donate their services, usually on a part-time basis, for public service, religious or humanitarian objectives, not as employees and without contemplation of pay, are not considered employees of the religious, charitable or similar non-profit organizations that receive their service.

For example, members of civic organizations may help out in a sheltered workshop; men's or women's organizations may send members or students into hospitals or nursing homes to provide certain personal services for the sick or elderly; parents may assist in a school library or cafeteria as a public duty to maintain effective services for their children or they may volunteer to drive a school bus to carry a football team or school band on a trip. Similarly, an individual may volunteer to perform such tasks as driving vehicles or folding bandages for the Red Cross, working with disabled children or disadvantaged youth, helping in youth programs as camp counselors, scoutmasters, den mothers, providing child care assistance for needy working mothers, soliciting contributions or participating in benefit programs for such organizations and volunteering other services needed to carry out their charitable, educational, or religious programs.

Under the FLSA, employees may not volunteer services to for-profit private sector employers. On the other hand, in the vast majority of circumstances, individuals can volunteer services to public sector employers. When Congress amended the FLSA in 1985, it made clear that people are allowed to volunteer their services to public agencies and their community with but one exception - public sector employers may not allow their employees to volunteer, without compensation, additional time to do the same work for which they are employed. There is no prohibition on anyone employed in the private sector from volunteering in any capacity or line of work in the public sector.

The Department of Labor also discusses the issue of a shortage of workers (which I can't believe there would be anywhere in this economy:

If your business has a shortage of workers and is looking to “volunteers” to help out, be aware that the Fair Labor Standards Act (FLSA) has stringent requirements with respect to the use of volunteers.  In general, covered, nonexempt workers working for private, for-profit employers have to be paid at least the minimum wage and cannot volunteer their services.  Check with DOL for the rules governing the circumstances where volunteering in the public and private, non-profit sectors may be allowed.

For-profit companies can't ask staff to volunteer to work at for-profit activities. The Department of Labor advises:

Just like other individuals, staff of facilities that provide employment and services to workers with disabilities may volunteer to perform certain tasks for their employers without creating an employment relationship under the FLSA. However, under the FLSA, employees may not normally volunteer services to for-profit employers. 

Employees of a work center or hospital cannot volunteer to perform the same services they are normally employed and paid to perform. For example, a secretary cannot volunteer to respond to correspondence generated by a special fund-raising drive.

Individuals, including staff members, who “volunteer” to help a work center or hospital meet production deadlines required by contract or subcontract work orders are not considered volunteers under the FLSA and an employment relationship exists when they are engaged in such activities.

 If a for-profit employer mandates employees to work on charitable activities, then the employees must be paid. DOL explains it this way:

[W]hen an employer directs an employee to volunteer, that time is compensable.  The regulations state:

Time spent in work for public or charitable purposes at the employer's request, or under his direction or control, or while the employee is required to be on the premises, is working time.  However, time spent voluntarily in such activities outside of the employee's normal working hours is not hours worked.
29 C.F.R. § 785.44 .... 

Therefore, we caution that volunteer activities “must be truly voluntary and any coercion or pressure, whether direct or indirect by the [employer] to participate in this program outside of [] duty hours would negate the voluntary nature of the program.”  WH Opinion Letter January 29, 1999....  [E]mployers may encourage their employees to volunteer their services for public or charitable purposes outside of normal working hours without incurring an obligation to treat that time as hours worked so long as participation is optional and non-participation will not adversely affect working conditions or employment prospects.

Several courts have upheld agreements where employees agreed to waive their right to bring class actions and to arbitrate Fair Labor Standards Act claims. However, an employee can't agree to waive their right to be paid. It will remain to be seen whether a court will uphold any part of these releases the "volunteers" are signing for the Super Bowl.

In an economy where a huge part of the population is unemployed, it's a darned shame that a for-profit organization like the NFL is taking advantage of members of the community and simultaneously avoiding a golden opportunity to provide much-needed work to thousands of people.

They're breaking the law. Be outraged.

Court Says Lactation Is Related to Pregnancy, Refrains From Saying, "Duh"

I wrote about a really stupid case out of Texas where a federal court said that "lactation is not pregnancy, childbirth, or a related medical condition," and thus decided that "firing someone because of lactation or breast-pumping is not sex discrimination."  I was irked, to say the least. Lactation not related to pregnancy and childbirth? Really?

Well, the 5th Circuit Court of Appeals which, to its credit, refrained from saying, "Well, duh," has unanimously ruled that lactation is, indeed, related to pregnancy and is therefore covered by Title VII. EEOC reports this about the decision: "The Fifth Circuit noted the biological fact that lactation is a physiological condition distinct to women who have undergone a pregnancy.  Accordingly, under Title VII and the Pregnancy Discrimination Act, firing a woman because she is lactating or expressing milk is unlawful sex discrimination, since men as a matter of biology could not be fired for such a reason. The case was remanded back to the lower court for a trial on the merits."

Personally,  I think the 5th Circuit should be applauded, not only for its common sense, but for the fact that it did not openly mock the lower court's ruling. I wouldn't have had that much self-control.

I should also point out that almost all employers are required to provide nursing mothers with break time to pump breast milk, along with a private space that isn't the restroom to do so. The Fair Labor Standards Act requires this, so employers who fire moms for lactating may also run afoul of this law, even if they aren't large enough to be covered by Title VII.

I rarely get to say this, so: Hooray for common sense in the courts!

Top 6 Signs Your Unpaid Internship Should Be Paid

In honor of my daughter landing her first internship, I thought I'd go through once again an issue that comes up every summer. Many internships that are unpaid are exploiting young people for free labor instead of providing a meaningful learning experience.

If your internship is more about scut work and less about learning, you are probably an employee who needs to be paid, not an intern. Here are some top signs that your unpaid internship is really a job that should be paid: 

1. You aren't learning: An internship is supposed to provide training similar to that you would receive in a vocational school. In other words, you should be learning something helpful to your future career. If you're sorting mail, licking envelopes, filing, digging ditches or picking up the boss's dry cleaning, that work has to be paid. Internship assignments are supposed to build on each other to help you develop more skills, similar to the way each chapter of a textbook builds on the other.  
2. You have someone else's job: If you find out you're the temp covering for someone on maternity leave or you replaced a salaried guy they thought was making too much money, you have a job, not an internship.
3. You're on your own: Let's say they toss you in a room and say, "Here's the manual. Do this project on you own. Tell me when it's done." You are an employee.
4. The company benefits, not you: This is where most intern programs go seriously wrong. The company is supposed to be giving training that benefits you way more than it benefits them. If they can make money off what you're doing, or if you're saving them from having to pay another employee, you probably have to be paid. 
5. They promise a job at the end: The whole point of the internship is probably that you want them to hire you somewhere down the line. However, if you are guaranteed a job if you complete a specific training period, you're likely a trainee and must be paid. 
6. Where's my check?: If you go into a job thinking you're going to be paid and they announce only after you start that you're an unpaid intern, you're probably an employee. If you didn't understand before you accepted that there would be no pay while you're training, then you're probably entitled to be paid.

 The Department of Labor has been cracking down on illegal unpaid interships for several years. If your employer screws up, they may owe you wages, overtime, liquidated damages that equal the wages they failed to pay, and your attorney's fees. Here in South Florida, we also have some counties with wage theft ordinances that can even triple the amount you're owed. If your internship isn't what you thought it would be, have until the end of the statute of limitations (generally 2 years under the Fair Labor Standards Act) to wait to see if you get the job you thought you were earning. If you sue, you can sue on your own behalf and on behalf of all the other interns who didn't get paid.

Even if you sign a waiver saying you agree not to be paid, it won't hold up if the internship is really a job, so talk to an employment lawyer in your state about it.

Internships can get you college credits, contacts, community service hours for high school, and maybe even a paid job down the line. That's what the good ones are supposed to do for you. Just beware the ones that turn you into slave labor. Before you accept an internship, get a clear understanding of your job duties, whether you'll be paid, and what the employer expects of you.

If you aren't going to be doing something that puts you on your career path, turn it down. If you find out that it wasn't what you expected, get out of there.

Time is money. That's what they say in business. Make sure you get your money's worth out of your internship. If not, wouldn't you rather spend your summer taking classes, getting a paid job, or texting your friends?

If you have a terrific internship, great. I wish you the best. If not, talk to an employment lawyer about your rights.

Are Journalists Exempt From Overtime?

A $660,000 settlement for reporters recently caused both celebration and ire in the journalism community. The celebration was for a victory on behalf of hard-working reporters everywhere. Many reporters work deadly hours for little pay. This decision provides them with some relief, requiring newspapers to pay them overtime for any week they work over 40 hours.

The consternation was caused by the reason for the settlement. The basis for the suit was that journalists are not "creative professionals." This left some reporters shaking their heads. Not creative? But I'm a writer! Of course I'm creative!

Really? Remember what happens to reporters who get too creative. They get unemployed. Forced to resign in disgrace. Publicly outed. Canned. And even sued. Of course, sometimes they get paid big bucks to talk about journalistic ethics.

The Fair Labor Standards Act requires most employers to pay overtime to most employees who work over 40 hours per week. Some employees are exempt, but most are not. One of the exemptions is for "creative professionals." The exemption is quite specific. Being an exempt creative professional involves  invention, imagination, originality or talent, as opposed to intelligence, diligence and accuracy. It also requires that the employer not exercise substantial control over the creative professional's work product.

Most print journalists are probably not exempt, because their work is subject to a significant amount of control by their employers. Journalists who perform on radio or TV, who do investigative interviews, who do opinion pieces, editorials or other commentary are probably exempt. On the other hand, a journalist who simply reads press releases over the air is probably not a creative professional. 

This is not the first case where journalists were found not to be exempt from overtime. A case in 2010 in California resulted in a $5.2 million verdict in favor of reporters of the Chinese Daily News. Unless the journalist does analysis of a news story, and their work is not subject to editing and other control by the paper, then they are probably exempt.   

Here’s what the Department of Labor says about this issue:

Relying upon federal case law, the final regulations clarify that employees of newspapers, magazines, television and other media are not exempt creative professionals if they only collect, organize and record information that is routine or already public, or if they do not contribute a unique interpretation or analysis to a news product. For example, reporters who rewrite press releases or who write standard recounts of public information by gathering facts on routine community events are not exempt creative professionals. Reporters whose work products are subject to substantial control by their employer also do not qualify as exempt creative professionals. However, employees may be exempt creative professionals if their primary duty is to perform on the air in radio, television or other electronic media; to conduct investigative interviews; to analyze or interpret public events; to write editorial, opinion columns or other commentary; or to act as a narrator or commentator. Thus, journalists’ duties vary along a spectrum from the nonexempt to the exempt. The less creativity and originality involved in their efforts, and the more control exercised by the employer, the less likely journalists are to be considered exempt. There is no “across the board” exemption for journalists; nor has there ever been. Rather, each determination must be made on a case-by-case basis, as is the case with all job classifications. The majority of journalists, who simply collect and organize public information, or do not contribute a unique or creative interpretation or analysis, are not likely to be exempt.

If newspapers want to have exempt employees, maybe they should cut back on that editorial pen and let reporters choose the stories they want to cover. Since that will probably never happen, newspapers should be ready to pay overtime to their hard-working reporters.

Are You Entitled to Overtime Pay? Probably

You may have read about the recent Supreme Court case saying pharmaceutical representatives aren’t entitled to overtime because they are outside salespeople. That’s because they fit within one of the narrow exemptions to the Fair Labor Standards Act, which is the law requiring employers to pay overtime to most employees who work over 40 hours per week.

            The truth is, most employees are not exempt. That means you are probably entitled to be paid overtime if you work over 40 hours/week. Just because you’re paid a salary doesn’t mean you aren’t entitled to overtime. Your company can’t offer compensatory time (or “comp time”) instead of paying you. And they can’t average your hours over two or more weeks either.

            If you aren’t exempt from overtime, you are entitled to be paid at time and a half for any week you work over 40 hours.

Here are some of the types of employees who are exempt from overtime if they are white collar workers (blue collar workers and first responders are not exempt):

Executives: If you’re paid a flat salary of at least $455/week, and your primary job duty is managing either the company or a department/subdivision, you may be an exempt executive. You must supervise at least two full-time employees, and have the authority to hire and fire them, or at least make recommendations on hiring and firing that are seriously considered. If you’re the Vice President of Operations supervising 100 employees, you’re probably exempt, but they can call you the Grand Poobah of the Shipping Department and it won’t make you exempt if you don’t actually supervise anyone.

Administrators: If you’re paid a flat salary of at least $455/week, and your primary job duty is office or non-manual work directly related to management or business operations of your company or your company’s customers, you may be an exempt administrator. Your job must involve using discretion and independent judgment regarding matters of significance. For example, a store manager may be exempt, but the cashier is almost certainly not.

Learned Professional: If you’re paid a flat salary of at least $455/week, and your primary job duty is performing work requiring advanced knowledge, predominantly intellectual, and the consistent exercise of discretion and judgment, you might be an exempt learned professional. Your advanced knowledge must be in a field of science or learning and be obtained through a prolonged course of instruction. As an example, lawyers are exempt, but paralegals are not; RNs are exempt but LPNs are not.

Creative Professional: If you’re paid a flat salary of at least $455/week, and your primary job duty is the performance of work requiring invention, imagination, originality or talent in a recognized art or creative field, then you might be an exempt creative professional. As an example, investigative reporters are exempt but reporters who rewrite press releases or who write standard recounts of public information by gathering facts on routine community events are not.

Computer Employee: If you’re paid a flat salary of at least $455/week, if you are paid on an hourly basis, you’re paid at least $27.63 an hour and you’re a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field, you might be an exempt computer employee. Your primary job duty must be applying systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications; or design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications; or design, documentation, testing, creation or modification of computer programs related to machine operating systems; or a combination of these.

Outside Sales: If your primary job duty is making sales, obtaining orders or contracts for services or use of facilities and you regularly work away from the company’s place of business, you might be an exempt outside salesperson.

Highly-compensated Employee: If you make $100,000 or more, at least $455/week of which is on a salary basis, and you regularly perform at least one of the duties of an exempt executive, administrative or professional employee, you may be an exempt highly-compensated employee.

Motor Carrier: If you are a driver, driver’s helper, mechanic, or are involved in vehicle safety or a motor vehicle used as transportation for compensation on public highways in interstate or foreign commerce then you may be exempt as a motor carrier and are instead governed under the Motor Carrier Act of 1935 instead.

Seasonal Amusement or Recreational Workers: If you work in an amusement or recreational establishment that doesn’t operate for more than seven months in any calendar year, or if its average receipts for any six months of the year weren’t more than 33 1/3% of its average receipts for the other 6 months of the year, you may be an exempt seasonal amusement or recreational worker.

These are some of the main exemptions. There are lots more, such as live-in domestic workers, car and boat salespeople, and movie theater employees.

Confused? So are most employers, which is why many get it wrong. Fortunately, the Department of Labor has online resources to help. You can start with the handy-dandy Overtime Security Advisor that can guide you through the exemptions and requirements. The Occupational Index is an alphabetic listing of many occupations and whether they are exempt or not.

You can’t legally waive any part of the Fair Labor Standards Act, so if your company policies or your employment contract say otherwise, you still may have the right to overtime. And you almost always have to be paid minimum wage, so if you’re working 100 hours a week and making $455/week, your employer is probably breaking the law.

The consequences of violating the overtime requirements are that your employer might have to pay double the amount owed you, plus attorney’s fees and costs. When in doubt, contact an employee-side employment attorney in your state to find out your rights.

Potential Employees Beware: Some Employment Laws Hate Job Seekers

An ugly new trend is spreading in the workplace, and the courts say it's okay. If you're trying to get a job, employers can now discriminate against you in ways that current employers can't.

A Potential Employer Can Retaliate Against You For Suing Your Employer

The latest attack on potential employees comes out of the 4th Circuit, covering Maryland, Virginia, West Virginia and North Carolina. In the case of Dellinger v. Science Applications, the court ruled that a job applicant is not protected from retaliation under the Fair Labor Standards Act. The implications are frightening. Say you work for Scumbag Employer, Inc., which suddenly stops paying employees. You sue. You have the right to do so. You win. Scumbag Employer has to pay up. You're a hero, because your coworkers get paid too. If Scumbag Employer fires you for suing them, that's illegal. But once you decide to leave, beware.

In Dellinger, the court found that. . . . read more in the Huffington Post.



Thanks to Gina Misiroglu of Red Room for putting me in touch with the Huffington Post!