Monthly Archives: March 2014

Inability to Sit Can Be a Disability Under the ADA

Is the inability to sit for an extended period of time a disability under the Americans with Disabilities Act? One court has said that it could be. In Parada v. Banco Industrial de Venezuela, C.A., Case No. 12-3525 (2nd Cir., Mar. 25, 2014), the United States Court of Appeals for the Second Circuit has asked the trial court to decide whether the plaintiff’s condition meets the definition of disability under the ADA. The questions for the trial court are whether sitting is a “major life activity” and whether plaintiff’s condition substantially limited his ability to sit. The case is noteworthy because the appeals court did not completely reject plaintiff’s claim that the inability to sit for a prolonged period is an ADA disability.

EEOC Must Pay Employer $189,000 in Attorneys’ Fees

The EEOC got hammered for dawdling in its investigation and bringing a claim that prejudiced the employer because of the delay. The employee, a supervisor, said he got fired for complaining that only Hispanics received certain supervisory positions. He claimed discrimination based on his “American” national origin – somewhat of a reverse national origin discrimination claim. He went to the EEOC for help. Six and one-half years later, the EEOC filed suit. The district court granted the employer’s motion for summary judgment and awarded the employer just over $189,000 in attorneys’ fees – ouch!. The court found the EEOC acted unreasonably in pursuing litigation. On appeal the EEOC argued that the trial court abused its discretion by awarding fees. The appeals court disagreed. The EEOC has ninety days to ask the U.S. Supreme Court to accept the case for review. EEOC v. Propak Logistics, Inc., Case No. 13-1687 (2nd Cir., Mar. 25, 2014).

Employer’s Confidentiality Policy For Wage Information Violates Labor Laws

In Flex Frac Logistics, L.L.C., et al. v. NLRB, Case No. 12-60752 (5th Cir., Mar. 24, 2014), Flex Frac, a non-union trucking company, asked the court of appeals to overturn an Administrative Law Judge’s decision, affirmed by the National Labor Relations Board, that the company’s employee confidentiality policy constituted an unfair labor practice. The policy prohibited employees from divulging “personnel information.” The case originated with a fired non-union employee’s unfair labor practice charge. The ALJ found that although there was no reference to wages or other specific terms and conditions of employment in the confidentiality clause, the clause nonetheless violated NLRA Section 8(a)(1) because it restricted employees from exercising their NLRA Section 7 right to discuss wage information. The court concluded that the NLRB’s interpretation of the confidentiality clause was not unreasonable. The court, therefore, enforced the NLRB’s order restricting the company from maintaining a policy prohibiting employee discussion of wage information.

Proposed Overtime Rules Will Help Millions Of Americans

More Overtime Expansion

On Saturday, March 15, 2014, President Obama continued his push to help middle income workers by making more employees eligible for overtime pay under the Fair Labor Standards Act (“FLSA”). The FLSA is the federal law that requires employers to pay time and a-half to wage for work employees. On March 13, 2014, the President issued a memorandum to the Labor Department proposing significant changes to overtime rules. President Obama used his weekly radio address to focus attention on his labor agenda.

Changes to White Collar Overtime Exemption

White collar employees, such as professional, executive and administrative employees, are considered exempt from the overtime laws if they earn at least $455 in gross pay per week. This equates to an hourly wage of $11.37 based on a 40 hour work week. Extra hours, though, reduce the wage rate. At about 60 hours per week, the white collar employee barely earns the federal minimum wage. In states like Ohio with a higher minimum wage, they earn less than the minimum wage.

The $455 per week limit comes out to $23,660, which is below the poverty level for a four-person family. President Obama has not called for a specific increase. Many economists, however, have proposed doubling the weekly pay limit to nearly $1,000 per week, or $52,000 annually. That figure better reflects a white collar pay level.

Many employers designate employees as supervisors to avoid overtime pay requirements. President Obama’s memorandum to the Labor Department also proposes revised Department rules to re-define the term supervisor.

The process of implementing rule changes includes a period for comment from the public. This process means that it could be 12-18 months before new rules go into effect. The last increase to the white collar pay limit occurred under President Bush in 2004.

Home Health Aides to Get Overtime and Minimum Wage Protections

Current Law

People who employ housekeepers and others to perform household services in their home for at least 8 hours per week are required to pay the minimum wage and overtime. Babysitters who work a regular, steady schedule for more than 8 hours per week are covered too.

One would think that home health care workers, such as STNAs and CNAs (but not registered or practical nurses) would be entitled to minimum wages and overtime pay. The current general rule is they are not because of the “companionship” exemption. Companionship services mean fellowship, care, and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs. If, however, more than 20% of such services include household work for the aged or infirm person, such as meal preparation, bed making, washing of clothes and general household work, then they are considered domestic service employees entitled to the minimum wage and overtime pay.

New Law

The law will change on January 1, 2015. As of that date, home care staffing agencies will have to pay their workers the minimum wage for all hours worked, and overtime pay at time and one-half of the regular rate of pay for all hours worked over 40 in a workweek, regardless of duties. As a result, millions of home care workers will become entitled to the minimum wage and overtime pay.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.