Archive for April, 2015

Moving On. Eventually.

First of all, I’m back. Given what a great job Emily did making my life easier and drafting the last 8 or so posts on the FLSA, I’m not sure that me being back is such a good thing for you, but I’m back anyway. And why am I back you ask, why not keep letting some young associate draft these posts? Well let me tell you why. Mostly it’s because after the first of the year all of our new young associates have to start earning their keep. That means billing hours to clients and contributing to the bottom line. And while this little old blog of mine certainly contributes to the bottom line indirectly, it doesn’t do so directly, so all the time spent writing this does not count toward a young associate’s billable contribution to the firm. And while I am sure there are some older lawyers out there that are perfectly happy making a young associate do work that they don’t actually get any credit for, I like to think I am not one of them. So, I’m back. Sorry if you don’t like that. Write Emily, maybe she will start her own blog.

So, is that what the title of this one is all about, moving on from Emily? Sort of, but it means more than that. It means we are moving on from the regular rate and what goes into it and how to compute overtime. There are more regs on that topic, but we have hit the high points, so we are going to leave the detail stuff out and move on to something else. What you say?

Exemptions, that’s what. Yes, after all that time we talked about how you compute overtime, we are going to start talking about who does not have to be paid overtime. And we are going to start with the big ones, the White Collar Exemptions. You all know what they are and we are going to spend some time in them. And before we get into the detail, let’s get one thing out of the way. A lot of you call these people “salaried” employees. That is not right. Just because you pay an employee a salary, does not mean you don’t have to pay them overtime. I am going to explain that over the next couple of weeks. But for now, just take my word for it. But here is one other caution and the reason why we are not just moving on quickly.

The Department of Labor was supposed to have issued new proposed regulations on this very topic by now. And I thought, just by luck mind you, that I had the blog timed pretty well to hit this topic as the proposed regulations came out. Unfortunately, the proposed regulations have been delayed. Here is what we know, nothing. No that’s not true. What the DOL is now telling everyone is that we can expect the proposed regulations sometime this “spring.” Now here in Michigan, that means July. Just kidding, it only feels that way. Hopefully before the end of May. And once we get the proposed rules I will start back up again. In the meantime I’m sure something will pop up to keep us busy.

See you next time.

Losing Sight of the Forest for the Trees . . . or maybe the Trees for the Forest? Either way, it’s bad.

Someone who can’t see the forest for the trees has typically become so focused on details that he or she begins to ignore the overall situation. . . . As early as the 1500s, “you can’t see the forest for the trees” was in wide enough use that it was published in collections of proverbs and slang.

* * *

This proverb is also sometimes reversed, as in “you can’t see the trees for the forest,” referencing the idea that it is also possible to be too broad when looking at a situation. Someone who makes sweeping pronouncements without considering various details could exhibit just as much of a logical flaw as someone who only focuses on the details.

See http://www.wisegeek.org/what-do-people-mean-when-they-say-someone-cant-see-the-forest -for-the-trees.htm.

I haven’t decided which one of these applies, but on March 31, 2015 the NLRB lost sight of something that’s for sure.  Maybe it was common sense? In a case called Pier Sixty, LLC, 02-CA-068612 and 02-CA-070797 (March 31, 2015) the Board found that the employer Pier Sixty violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act when it fired an employee for posting on his Facebook page that his supervisor was a “NASTY M—ER F—ER.” That’s right, the Board ordered reinstatement of the employee who posted that language on a Facebook site that could be viewed by, according to the Board, “his Facebook friends, which included some coworkers and to others who visited his personal Facebook page.” OK, so let that sink in a bit, and I will try to catch my breath before I try to explain what the Board did here.

So here is exactly what this classy guy posted:

Bob is such a N—Y M—ER F—ER don’t know how to talk to people!!!!!! F–k his mother and his entire f—ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!

OK, it’s not exactly what he posted; he filled in the blanks. And when one of your employees posts something like this, you want to fire him, right? Of course you do, and when you call me and ask me if it is legal to do so, I was going to say, yes it is. And, at least according to the Board, in this case, I would be wrong. You see, the Board said:

“We agree with the judge that Perez’ Facebook comments, directed at McSweeney’s asserted mistreatment of employees, and seeking redress through the upcoming union election, constituted protected, concerted activity and union activity. As stated by the judge, “Perez’ Facebook comments were part of a sequence of events involving the employees’ attempts to protest and ameliorate what they saw as rude and demeaning treatment on the part of Respondent’s managers, including McSweeney.” Toward that end, Perez’ Facebook posting protested such mistreatment and exhorted employees to “Vote YES for the UNION.”

“We also agree with the judge that Perez’ comments were not so egregious as to exceed the Act’s protection.”

What? Or, if I was the employee in this case, WHAT???????

That is seeking redress of mistreatment through the upcoming union election? That is “not so egregious”? You have got to be kidding me!

Easy, easy now. So how did the Board get to this decision? Well, they used a 9 factor test from a previous case.

“In evaluating Perez’ posting under the totality of the circumstances, the judge considered the following factors: (1) whether the record contained any evidence of the Respondent’s anti-union hostility; (2) whether the Respondent provoked Perez’ conduct; (3) whether Perez’ conduct was impulsive or deliberate; (4) the location of Perez’ Facebook post; (5) the subject matter of the post; (6) the nature of the post; (7) whether the Respondent considered language similar to that used by Perez to be offensive; (8) whether the employer maintained a specific rule prohibiting the language at issue; and (9) whether the discipline imposed upon Perez was typical of that imposed for similar violations or disproportionate to his offense.”

And then, after an “objective review” of these factors the Board said: “We find that an objective review of the evidence under the foregoing factors establishes that none of them weighs in favor of finding that Perez’ comments were so egregious as to take them outside the protection of the Act.” Now the Board went through each one of these factors and found that they did not support termination of the employee. But here are my two favorite comments:

“The location and subject matter of Perez’ post (factors four and five) also do not weigh in favor of finding that Perez’ comments lost the protection of the Act. He posted his comments while alone, on break, and outside the Respondent’s facility. There is no evidence that his comments interrupted the Respondent’s work environment or its relationship with its customers. Further, his comments echoed employees’ previous complaints about management’s disrespectful treatment of service employees and encouraged employees to vote in favor of union representation.”

He posted his comments “while alone, on break and outside.” Are you kidding me? He posted his comments on Facebook where, as the Board itself admitted, they could be viewed by “his Facebook friends, which included some coworkers and . . . others who visited his personal Facebook page.” But wait, as the Board said, these comments encouraged employees to vote in favor of the union? Again, are you kidding me? Does that mean if I stick “Vote YES for the UNION” on any statement I make, it gets the protection of the Act?

And here is my second favorite “rationalization” in this opinion: “Nor was Perez’ reference to McSweeney’s family beyond the Act’s protection. We agree with the judge that Perez’ comments were not a slur against McSweeney’s family but, rather, “an epithet directed to McSweeney himself.” Of course it was. I wasn’t really talking about your family, I was talking about you. And that makes it so much better.

And just one more little thing, the Board actually said: “Although we do not condone Perez’ use of obscene and vulgar language in his online statements about his manager, we agree with the judge that the particular facts and circumstances presented in this case weigh in favor of finding that Perez’ conduct did not lose the Act’s protection.” Sorry, but it looks to me like the Board does condone his language. After all, they gave him his job back.

What does all this mean? Well, strictly speaking from a legal point of view, it means that these social media cases, which were hard enough to figure out just got harder. It means that no matter what an employee says, no matter how bad it is, if you have a union election campaign going on, you need to look at everything that is going on in the workplace before you fire him.

And it seems to me it means one more thing. The Board has lost sight of the forest for the trees.