Archive for January, 2013

WHAT DO OVERTIME, AUTO TUNE AND ASSAULT HAVE IN COMMON?

I like all kinds of music. Not every kind of music, all kinds of music.  But if I had to narrow it down to one genre as a favorite, it would be classic rock.  Over the Hills and Far Away from Led Zeppelin’s Houses of the Holy is playing while I write this.  I like the Beatles and the Rolling Stones and I even have the Turtles on my iPod. On my office wall  I have a framed Woodstock poster that my son bought me for Christmas  And while my ponytail and love bead days are way behind me, I still like the music of the 60s and 70s.

So you are probably not going to be surprised when I tell you that most — not all but most — of the over-processed, auto-tuned garbage that passes for popular music nowadays is just not my cup of tea.  And when I read a headline that says “Suit against Justin Bieber by fired bodyguard claims assault, seeks back pay” I’m jumping at the chance to write about it.  Get it?  Overtime? Auto Tune? Assault?

First, let me get to the part that made me fall out of my chair laughing.  At least one of the claims made in this lawsuit, according to both CBS and TMZ is that Mr. Bieber punched and berated his former Israeli army soldier bodyguard.  According to TMZ Mr. Beiber, who TMZ says is 5’ 7’ and weights about 130 pounds,  allegedly  punched his bodyguard “in the chest multiple times during a disagreement.”  Really?  If I were the bodyguard I would be embarrassed to even make that claim.  Why would you subject yourself to the ridicule of everyone thinking that you were “beat up” by Justin Beiber.  Then again, in words of the Mr. Beiber himself:  “”Baby take a chance or you’ll never ever ever know.  I got money in my hands that I’d really like to blow.”  (Before you make fun of me I had to go to the internet to find that little lyrical gem, I don’t know a single Justin Beiber song.   Really.)  But, that is beside the point.

On to the part of the story that is related to employment law. The bodyguard is also suing Mr. Beiber for unpaid overtime.  In fact, he is asking for just a shade over $420,000.  CBS reports that the bodyguard is claiming he worked “14 to 18 hour days between March 2011 and October 2012.” and that he “says he was mistakenly told that he wasn’t entitled to receive overtime. . . .”   Math isn’t my strong point, but 14 to 18 hour days is more than 40 hours in a week unless you are only working a couple days a week.

I don’t know the details of this particular lawsuit (because for some reason I can’t find the complaint online anywhere), but here is the general rule:  If you are not an exempt employee you are supposed to get paid overtime for all hours you work over 40 in a work week.  That’s the rule.  So when is an employee exempt?  That is the question and I’ll guess how this lawsuit is setting up.

You can bet that the bodyguard was paid a salary, and salaried employees don’t get overtime.  Right?  WRONG!  At least half wrong.  You see, under the Fair Labor Standards Act, you generally (there are some limited exceptions) have to be paid on a “salaried basis” to be exempt from overtime, but being paid on a salaried basis alone does not make you exempt from overtime.

You also have to meet one of the duty tests.  You have to be an executive employee, or an administrative employee or a professional employee. And you have to perform the duties of an executive, or administrative or professional employee.  And these duties tests are very narrowly defined.   Being a bodyguard is not any of these.  Being a bodyguard is not exempt work.  So being a bodyguard does not meet one of the duties tests and paying a bodyguard a salary does not mean you don’t also have to pay a bodyguard overtime when he or she works over 40 hours in a work week.  You see, you can be paid a salary and still be entitled to overtime under the law.

There are some other limited exceptions, like certain industry exemptions.  But these are limited, too.  So don’t think that you can just pay an employee a salary and not have to worry about overtime. That is not enough.