San Antonio Employment Law Blog : San Antonio Employment Lawyer & Attorney : Thomas Crane Law Firm : South Texas, Bexar County TX Wage & Discrimination Issues

 Periodically, the Department of Labor issues guidance on interpretation of the regulations and statutes regarding the Fair Labor Standards Act.  The FLSA is the statute hat requires overtime pay and payment of minimum wage.  The DOL has issued an opinion recently stating that it now believes mortgage loan officers are not exempt employees and are, therefore, entitled to overtime pay.  According to one commentator, this new interpretation will apply to employees who work primarily in the employer's place of business and to employees who do not engage in cold-calling, contacting potential customers.  If you think you may have employees who fit these criteria, you should seek guidance regarding changes to be made as soon as possible. 

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 Part of the recently passed Patient Protection and Affordable Care Act contains an amendment to the Fair Labor Standards Act.  The amendment requires all employers to provide reasonable breaks and a location for women to express milk for their children.  The act supports women who breastfeed their children.  The location must be in a place other than the bathroom. 

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 Gene Lee writes a good post about whether workers should be paid for checking email after hours.  More and more employees are being required to check their email after work.  Accoding to a 2008 Pew internet survey,  50% of workers said they check their work email on weekends.  20% of workers said they were required to check work email and respond to it after hours.  Half of Blackberry and PDA users said they were required to check and respond to work related email after hours.  As Gene notes in his post, debate swirls around whether employees should be paid for this time.  

In July, 2009, several T-Mobile employees sued for this uncompensated time.  It is hard to understand how the employer would not be liable for this time.  Anything a worker does at the employer's request is compensable time.  The real issue is likely to be how liable the employer will be.  The employer should not be liable for 24/7 minimum wage coverage.  But, if the employer requires a particular duty or task, then that task must be compensated.  That is what the Fair Labor Standards Act is all about.  

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 Many employers seek to reduce cost by hiring independent contractors to perform some work.  The employer does not have to pay benefits to an independent contractor.  But, what is an independent contractor?  The IRS uses one test to determine whether an employee is a true independent contractor and not just an employee under a different name.  Department of Labor uses a different test.  But, a recent decision by the Fifth Circuit Court of Appeals addresses factors found in both tests.  

Cromwell, Et Al v. Driftwood Contractors, Inc. Et Al was decided on Oct. 12.  Cromwell and another man worked for Driftwood performing a great deal of electrical work in the aftermath of Hurricane Katrina.  Cromwell and his co-worker invested $70,000 in providing their own equipment, says Mike Maslanka.  They provided their own insurance and paid their own taxes.  They were so busy that they could not work for anyone else.  That factor made the difference, says Mr. Maslanka.  Because, the Fifth Circuit concluded they were so economically dependent on Driftwood that they were actually employees, and were not independent, at all.  

This was a Fair Labor Standards Act lawsuit.  Cromwell and his co-worker had filed suit for overtime wages.  By claiming overtime wages, Cromwell and his co-worker were claiming they were employees, not independent contractors.  Summary (ie, "quick") judgment had been granted in favor of the employer, Driftwood, at the lower court.  But, the Fifth Circuit reversed that summary judgment, a rare move for the Fifth Circuit.  So, economic dependence can make a difference, even to the Fifth Circuit.  

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 "You get a rest break every four hours," the seasoned warehouseman told me back in the 1970's.  He knew everything.  I just assumed he was right about this, too.  But, since then, I have never seen anything in law or regulation stating that workers were entitled to a 15 minute break every 4 hours.  But, there is a regulation encouraging employers to provide a rest break every so often.  "Encouraging" is not the same as requiring.  Now, I tend to believe the rest break tradition was simply a vestige of the days when collective bargaining agreements were much more common. 

I also heard there was a requirement for a meal break every so many hours.  That is also not necessarily true.  But, if your employer provides a meal break, they must not interrupt you unless they are paying you for that break.  As the regulation says, if the meal break is bona fide, then it cannot be worktime.  These regulations are all enforced under the Fair Labor Standards Act. 

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 State workers have it rough.  Yea, they have more job security than many private employees.  But, if they are not paid in accordance with the Fair Labor Standards Act, they cannot file suit against their employer.   That was the result of the 1999 decision in Alden v. Maine.  They also cannot sue their employer under the Americans with Disabilities Act or the Age Discrimination in Employment Act.  

The Texas equivalent of the ADA and the ADEA provide comparable protections.  But, the state version of the Fair Labor Standards Act has no teeth.  Most states have a law comparable to the FLSA.  A handful of states, including Texas, do not.  So, at least regarding wage violations, state workers have little or no recourse. 

The 1999 Alden decision was a 5-4 decision by the US Supreme Court.  That decision overturned decades of earlier decisions by lower courts.  So, yes, presidential appointments to the Supreme Court do matter.  

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 Rio Grande attorney, Aaron Ramirez, explains nicely the problems with seeking redress for wage violations from the Department of Labor.  As he says, its better to seek relief through a private attorney.

Aaron points out for example that DOL does not normally seek liquidated damages.  Liquidated damages is a phrase referring to monies used to compensate the victim of a wage issue for emotional issues and to help punish the employer.  

In my own experience, DOL does little more than *maybe* issue a finding that the employer has violated the Fair Labor Standards Act (the minimum wage law).  

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