Who’s the Boss? : Understanding Executive Exemption in the Fair Labor & Standards Act (FLSA)

Under FLSA rules, there are certain classifications of employees who are exempt from overtime pay rules.  However, in some instances these rules or exemptions may be erroneously applied to employees who do not meet such criteria.  Employees with an annual salary above $23,660 and who meet certain other exemption requirements are not entitled to overtime under FLSA guidelines.  One of the most common classifications of “exempt” employees is the Executive or “management” exemption.  The Department of Labor estimates that approximately 85% of white collar “exempt” employees meet the salary requirements for exempt status but fail the duties test.  This has prompted the Department of Labor to propose a raise in the annual salary requirement that will likely take effect in mid-late 2016.  The new proposed salary threshold is expected to be approximately $50,440 per year or about $970 per week.

Under the Executive Exemption test, there are a series of “job duties” that must be applied to determine if an employee meets the criteria.  The purpose of this “job duties” test is to ensure that in addition to salary, exempt employee classification is only applied to individual employees who perform a “high level” of work on a regular basis.  Management is an often broad term applied to anyone with supervisory duties.  However, supervisory duties alone do not sufficiently qualify an employee for exemption under FLSA guidelines.  Management duties must also include at least some of the following:

  • Setting pay rates and hours/schedules
  • Decisions on employee selection (hiring/firing and/or interviewing candidates)
  • Decisions on standard operation procedures and types of equipment used
  • Ensuring legal and regulatory compliance
  • Handling of employee grievances and/or disciplinary actions
  • Producing budget reports and/or sales records

 

Management exemptions are often difficult or ambiguous to determine and must be evaluated individually.  An employee may be still classified as management even if the majority of their job is not engaged in “management duties”.  For instance, a construction foreman may be engaged in regular employee duties throughout the day, but still considered management if he still regularly performs additional management duties.

Management are not the only classified employments considered to be exempt under FLSA guidelines.  Other classifications include “administrative professionals”, “learned professionals”, and “creative professionals”.  Each of these classification requires evaluation by a experienced Employment and Labor Attorney.  The Law Firm of Massey & Duffy, PLLC has experienced attorneys who have represented employees with unpaid overtime wages.  Our attorneys are dedicated to aggressive representation and have successfully tried and won cases in both state and federal court.  If you believe you have been wrongfully classified as exempt and are due overtime wages, please call our office at (352) 505-8900 to schedule a FREE CONSULTATION.

Who do I work for? – An examination of new Department of Labor guidance regarding joint employers.

As businesses grow they often look to outside vendors and contractors to help improve efficiency and reduce costs.  These third party vendors come in many different forms, janitorial services, human resources, accounting, etc.  This creates a huge headache for determining liability in employment and labor disputes.  To help delineate some of the ambiguity of liability in employment lawsuits, the US Department of Labor – Wage and Hour Division (WHD) has issued new guidance.  While the following analysis focuses solely on FLSA violations, the same basic formula may be applied to violations of FMLA, ADA and MSPA cases as well.

Horizontal vs. Vertical Joint Employment

It sounds like a chapter from a Statistics textbook, but the concept is fairly easy to understand.

Horizontal Joint Employment – When two or more employers separately employee an individual.  There are separate organizational structures and the employee works separate hours for each.  Meaning that each employer is afforded 40 hours before any overtime rate is due.  This is often seen in franchise operations where a common brand has a shared management structure and may have employees work at two or more different locations.  Each location would be responsible for paying the employee at each location.

Vertical Joint Employment – Where an employee works for an intermediary company or subcontractor to perform work, either exclusively or non-exclusively for another entity.  An example of vertical joint employment would be a landscaping company who is contracted to perform services for a golf course, however the golf course would not directly supervise the individual employee.  An employee could work at several locations for the same landscaper company, but still be afforded an overtime rate for more than 40 hours total for all locations.

Determining economic dependence and liability for Fair Labor & Standards Act (FLSA) cases. 

As discussed in past blog posts, contracting and subcontracting employment relationships are often analyzed with respect to if an employer has sole economic and supervisory influence over an individual employee.  The same principles of determining independent contractor status for purposes of the FSLA can also be applied to determine the extent of a vertical joint employment.  Many factors, including economic dependence, supervision, and education/skill level needed to perform the work are all factors when considering a FLSA suit against joint employers.

The obscurity and continuously evolving nature of modern business organizations will continue to challenge the strategy and procedures of Employment & Labor Law.  If you are pursuing a legal claim against an employer and believe that you were jointly employed by 2 or more employers, it is essential that you seek legal counsel of an attorney who specializes in Employment & Labor Law.  The Law Firm of Massey and Duffy, PLLC has represented hundreds of clients in labor disputes and has the experience and background to ensure that your case is handled properly and aggressively.  Call our office at (352) 505-8900 today to schedule a FREE CONSULTATION.

The Federal WARN Act: How to determine if your job is protected.

In 1988, the US Congress passed the Worker Adjustment and Retraining Notification Act (WARN Act).  This law, which took effect in 1989, was aimed at protecting workers in the manufacturing industry from sudden and massive layoffs.  Under the law, companies who plan to shut down or reduce labor at a particular location must give a 60-day advance notice and attempt to curtail sudden mass layoffs.  This 60 day advance notice gives workers and their families the ability to adjust to impending job loss and a reasonable amount of time to seek other employment before layoffs go into effect.

Under 29 U.S.C. §§ 2101 to 2109 and 20 C.F.R. §§ 639.1 to 639.10, a business that employees more than 100 full-time workers must comply with the WARN Act and give 60 day notice of layoffs if:

  • More than 50 full time employees are laid off at a single site AND
  • The number of layoffs constitutes more than 33% of the total work force at that site

In 2015, 77 WARN Act notices were filed with the Florida Department of Economic Opportunity (DEO).  Some of these companies filed notice despite the fact that they did not meet the minimum threshold to trigger the act.  Here are some examples of North Florida companies who gave DEO notice of mass layoffs:

CACI­ISS, Inc. – Jacksonville – Scientific & Technology – 51 employees affected

InoMedic Health Applications, Inc – Kennedy Space Center – Health Services – 172 employees affected

Flexsteel Pipeline Technologies, Inc.– Panama City – Manufacturing – 76 employees affected

United Airlines, Inc. – Jacksonville – Transportation & Warehousing – 66 employees affected

Chase Mortgage Banking – Jacksonville – Finance & Customer Service – 163 employees affected

 

Exemptions

The WARN Act does not penalize an employer if the layoffs are caused by natural disasters, unforeseen business circumstances or if the faltering company has made a good faith effort to seek capital or otherwise avoid site closures.  The most common exemption comes from businesses who file for bankruptcy.  In all of these cases, the employer is granted exemption from the full 60 day notice provision of the WARN Act if they have evidence of one or more of the mitigating factors previously listed.

This law does often does not protect employees at most retail locations or restaurant franchises due to the very high threshold of employment needed to trigger the Act.  Many of these types of employers have a large amount of part-time employees that will enable them to avoid liability under the WARN Act.

If you are affected by a mass layoff and believe your employer is in violation of federal law, the attorneys of Massey & Duffy may be able to assist you in your claim.  Our Employment & Labor attorneys have successfully recovered settlements for employees who have had their rights violated under FLSA, FMLA, and WARN.  Call our office today at (352) 505-8900 to receive a FREE CONSULTATION.

Are you Sick of Working?  or Sick from Working? –  Occupational Disease in Florida

Every year thousands of Floridians become ill from exposure to dangerous chemicals and materials, or environmental conditions as a result of their job.

This exposure takes many forms, and has many different symptoms, from lung disease to radiation sickness.

To qualify for a workman’s compensation claim under the Florida Statute 440.151, you must be able to prove the following circumstances regarding your condition:

That the disease or condition you suffer from is directly related by the employer you are filing the workers compensation claim with.

The disease is caused by specific characteristics of a certain occupation or employer.

The disease is not equally prevalent to ordinary persons who do not share the same occupation or employer.

Your claim was filed within five months of being exposed to the harmful materials or environmental conditions, or within 90 days of receiving a diagnosis from a certified medical provider.

Occupational diseases covered by workers compensation laws in Florida, also include existing conditions which are aggravated by exposure to harmful materials or conditions of a particular occupation or employer.  For those aggravated injuries, the same conditions and limitations apply as occupational disease claims.

If you have been denied a workers compensation claim regarding an occupational disease you must seek out an attorney immediately.  Your claim may have critical deadlines that are sooner than you realize and a licensed attorney in workers compensation claims is essential to meeting these deadlines in order for you to receive the care and compensation in which you are entitled.  The attorneys of Massey & Duffy are experienced in the areas of workers compensation and occupational diseases and can help you evaluate your case.  Call our office at (352) 505-8900 to schedule your FREE Consultation today.

Massey & Duffy Concentrate Efforts on Employment Cases

Employment Law

Florida is a “right to work state”, which equivocates to an employer having the right to hire and fire employees without cause.  However, despite Florida’s lack of employee protections, there are still many instances where an employer may be violating federal discrimination or retaliation protections.

Federally Protected Classes

Federal Law prohibits employees from being discriminated upon based on race, national/ethnic origins, sexual orientation, gender, marital status, pregnancy or disability.  Special protection is also afforded for individuals who report sexual harassment or illegal activity by their employer.  Some may feel vulnerable, ashamed and even responsible for some of this mistreatment.  Others may be afraid of being terminated for making a claim.  If you feel that there is evidence of your employer discriminating or even terminating you based on any of these categories, you may have the ability to sue for damages.  These lawsuits may be brought to the Florida Commission on Human Resources (FCHR) or its federal counterpart, the Equal Employment Opportunity Commission (EEOC).

Navigating through governmental agencies is a daunting task and although some claimants are able to do this alone, it is often beneficial and less time consuming to seek legal assistance from an attorney who specializes in Employment and Labor law.  The law offices of Massey & Duffy, PLLC offer free consultations for employees who feel that they have been wrongfully discriminated against based on protected class or protected activity.  Call our offices today at (352) 505-8900.

Florida Federal Contractors

On September 7, 2015, President Barack Obama signed an Executive Order requiring all federal contractors and subcontractors to be provided Paid Sick Leave.  If you are an employee of a company that holds federal contracts and you are supporting those contracts, you may be covered.

The provisions of this Executive Order include:

  • A minimum of 1 hour of sick leave accrued for every 30 hours worked
  • Sick Leave may not be capped lower than 7 days (56 working hours)
  • Qualified employees may use this leave for mental or physical health conditions, preventative care or diagnosis, or for the care of a family member.
  • Accrued leave may carried over to the next calendar year.

You may read the full Executive Order here.

Employment Law Blogs:

http://www.lawfficespace.com/ –  Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania and law professor at Penn State.

http://www.employmentlawmonitor.com/ – published by Cole Schotz, a national law firm that represents individuals and businesses in labor and employment law.  Offices in NY, NJ, DE, MD, and TX.

http://employeeatty.blogspot.com/ – published by Donna Ballman, a Florida Employment lawyer in Fort Lauderdale.

Gainesville Employment Lawyer

Did you know that Gainesville has its own, particular laws prohibiting discrimination? Here is an old copy of the  Gainesville City Code, however the newer version can be found online.  There are many other laws that protect employees, and numerous of them apply to persons in Ocala, Lake City and surrounding areas.   Several examples of Florida statutes that prohibit the termination of an employee for any of the following reasons are provided below:

  • The employee’s race, color, religion, sex, national origin, age, handicap or marital status, and pregnancy.
  • The employee’s opposition to any practice that is an unlawful employment practice under the Florida Civil Rights Act, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the Florida Civil Rights Act.
  • The employee filed or attempted to file a valid worker’s compensation claim.
  • The employee served on a jury.
  • The employee testified in a judicial proceeding in response to a subpoena, either because of the nature of the employee’s testimony or because of the employee’s absences from employment resulting from compliance with the subpoena.
  • The employee disclosed, or threatened to disclose, an activity, policy, or practice of a private employer that is in violation of a law, rule, or regulation, or objected to, or refused to participate in, any activity, policy, or practice of the employer that is in violation of a law, rule, or regulation.
  • The employee complained about and/or exercised his or her rights under Florida Minimum Wage Act and Florida Constitution.
  • The employee filed an unfair labor practice charge or gave testimony regarding an unfair labor practice pursuant to the Public Employee Relations Act.
  • The employee tested positive on a drug test that has not been verified by a confirmation test and by a medical review officer.
  • The employee provided information to, or testified before, any appropriate governmental agency, person, or entity conducting an investigation, hearing, or inquiry into an alleged violation of a law, rule, or regulation by a private employer.
  • The employee of a state, regional, county, local or municipal government entity disclosed any violation or suspected violation of any federal, state, or local law, rule or regulation which creates or presents a substantial and specific danger to the public’s health, safety, or welfare.
  • The employee of a state, regional, county, local or municipal government entity disclosed any act or suspected act of gross mismanagement, malfeasance, misfeasance, gross waste of public funds, suspected or actual Medicaid fraud or abuse, or gross neglect of duty committed by an employee or agent of an agency or independent contractor.
  • The employee reported abuse, neglect, or exploitation of a vulnerable adult by a health care professional.
  • The employee of a facility serving children reported abuse, abandonment, or neglect pursuant to Fla. Stat. 39.201.
  • The employee’s wages are being garnished.
  • The employee refused to authorize direct deposit of wages or salary.
  • The employee refused to participate in an abortion.
  • The employee is a member of the National Guard ordered into state active duty.
  • The employee is an athlete on U.S. teams in world, Pan American, or Olympic competitions.
  • The employee is trading or dealing, or for not trading or dealing as a customer or patron with any particular merchant or business.
  • The employee possesses a certain sickle-cell trait.
  • The employee has taken an AIDS test, either because of the results of the test, or the perceived results of such test.
  • The employee is a member of a union, or is not a member of a union.
  • The employee is voting or not voting in any election, state, county, or municipal, for any candidate or measure submitted to a vote.
  • The employee possesses a legally owned firearm locked inside a motor vehicle in the employer’s parking lot.
  • The employee exercises her rights to take leave to (1) seek an injunction against perpetrator of domestic, dating ,or sexual violence, (2) obtain medical care or mental health counseling for herself or a family member to address physical or psychological injuries resulting from domestic violence, (3) obtain services from a victim services organization, (4) render her home secure from domestic violence perpetrator, (5) seek new housing to escape perpetrator of domestic violence, (6) seek legal assistance to address issues arising from domestic violence; or (7) attend or prepare for court-related proceedings arising from domestic or sexual violence.
  • If two or more persons agree, conspire or combine together to prevent a person from procuring a job with a firm or corporation or to cause a person to be discharged from a firm or corporation, then such persons will be guilty of a misdemeanor of the first degree.[27]
  • If any person verbally or in writing threatens injury to life, property, or business for the purpose of preventing a person from procuring a job with a firm or corporation or to cause a person to be discharged from a firm or corporation, then such person will be guilty of a misdemeanor of the first degree.
  • A firefighter exercised his or her rights granted or protected by the Firefighter Bill of Rights.
  • A law enforcement officer and/or correctional officer exercised his or her rights granted by the Law Enforcement Officers’ and Correctional Officers’ Bill of Rights.
  • An agricultural worker who exercises any right under the Florida Agricultural Worker Safety Act and/or who discloses an illegal action, policy or practice.
  • A district school board employee’s involvement directly or indirectly with an application to establish a charter school.

 

Our Gaiensville and Ocala employment attorneys have knowledge and experience in the and other important legal rights.  If you would like to discuss the employment law issues, whether you live in Gainesville, Ocala, Lake City or any other North Central Florida location, please call us today.