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District Attorneys Are Bosses Too!

Employment Law and Liability

Brooke Duncan IIIOne Shell Square ▪ 700 Poydras Street, Suite 4500

New Orleans, LA 70139(504) 585-0220 ▪ brooke.duncan@arlaw.com

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Guess what--

You thought when you became a DAyou’d leave behind the headaches ofrunning a law practice, like managing anoffice, employing people, worrying aboutworkplace claims...

Well, not so fast.

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Fair Labor Standards Act

The FLSA establishes minimum wage,overtime pay, record-keeping, and childlabor standards for full-time and part-timeworkers in the private sector and infederal, state and local government.

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Two Types of Employees

There are two types of employees underthe FLSA:

1. Exempt

2. Non-Exempt

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Exempt Employees

Exempt employees are excluded from theminimum wage provision and/or overtime payprovisions.

Most common exemptions:

1. Executive

2. Administrative

3. Professionals

4. Outside sales

5. Computer professionals

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Exempt Employees - Executive

To qualify as an Executive:

a. Compensation on a salary basis at a rate of$455 per week

b. Primary duty is management

c. Customarily & regularly directs the work of2 or more other employees

d. Has the duty to (i) hire or fire otheremployees or (ii) whose suggestions as tohiring and firing are given particular weight

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Exempt Employees - Administrative

To qualify as an Administrator:

a. Compensation on a salary or fee basis at arate of $455 per week or more

b. Primary duty to perform office or non-manual work related to management

c. Who “exercises discretion and independentjudgment” in significant matters

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Exempt Employees – Professionals

To qualify as a Professional:

a. Compensation on a salary or fee basis at arate of $455 per week or more

b. Work requiring advanced knowledge in afield of science or learning, and whichincludes consistent exercise of discretionand judgment

c. The advanced knowledge must becustomarily acquired by a prolonged courseof specialized intellectual instruction

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And one more--

“Highly compensated” employeesperforming office or non-manual workand paid total annual compensation of$100,000 if they customarily andregularly perform at least one of theduties of an exempt executive,administrative or professional employeeidentified in the standard tests forexemption.

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Pay Arrangements – Salary Basis

• Payment on a regular basis of apredetermined amount of compensationeach pay period on a weekly, or lessfrequent, basis.

• The predetermined amount cannot bereduced because of variations in thequality or quantity of the employeeswork.

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Non-Exempt Employees

Non-exempt employees are paid hourly andare subject to minimum wage provisionsand/or overtime pay provisions.

Comp time:

Investigators—480 hours

Everybody else—240 hours

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Pay Arrangements – Hourly Basis

• Regular rate of pay for the employee ispaid by the hour.

• If more than 40 hours are worked, at least1 ½ times the regular rate for each hourover 40 should be paid. That’s what wemean by “time and a half.”

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Personal staff exemption--FLSA

FLSA § 3(e)(2)(C)(i)(II) excludesindividual … who is not subject to theagency’s civil service laws and who isselected by a public elective officeholder of such an office to be a memberof his or her personal staff. Congressintended to limit the exception toemployees with an intimate relationshipto elected officeholders.

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Personal staff exemption—FLSA, con’t.

Persons who are:

--under the direct supervision of theselecting elected official, and

--have regular contact with such official.

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Typically does not include individualswho are directly supervised by someoneother than the elected official eventhough they may have been selected bythe official. For example, the termmight include the elected official'spersonal secretary, but would notinclude the secretary to an assistant.

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Wage and Hour Field OperationsHandbook similarly explains:

“Personal staff” does not includeindividuals who are directly supervisedby someone other than the electedofficial even though they may beselected by and serve at the pleasure ofsuch official. Generally…includes onlypersons…under the direct supervision ofthe elected official and who have almostdaily contact... It would typically notinclude all [staff], since all [staff] couldnot have a personal working relationshipwith the elected official.

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The US 5th Circuit’s interpretation

Teneyuca v. Bexar County, 767 F.2d 148(5th Cir. 1985)

--whether the elected official has thepower to hire or fire

--whether the employee is personallyaccountable to only the elected official

--whether employee represents the electedofficial in the eyes of the public

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5th Circuit con’t.

--whether the elected official has aconsiderable amount of control over theemployee

--the location of the employee’s positionin the chain of command

--the closeness or intimacy of the workbetween the elected official and theemployee

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EEO laws: the biggies:

Title VII: 15 employees: sex, race, religion,national origin

ADA: 15 employees: disability

Age Discrimination in Employment Act: 20employees: age (over 40)

Harassment: considered a form of discrimination

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EEO laws: personal staff exemption:

The term “employee” [does] not includeany person elected to public office…, orany person chosen by such officer to beon such officer’s personal staff….Theexemption [does] not include employeessubject to the civil service laws of aState government, governmentalagency, or political subdivision.(Teneyuca v. Bexar County applies.)

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Family and Medical Leave Act

--50 employees in 75 mile radius

--12 weeks unpaid leave a year; canrequire use of paid leave

--Employee eligibility: one year ofemployment; 1250 hours

--Qualifying family or medical reasons

--Intermittent leave

--Personal staff exemption applies

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And there’s always Section 1983

If there’s no statutory employment hookavailable, a DA may be able to be suedfor work-related claims under Section1983.

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Immunity

Maybe and maybe not—--qualified immunity: if performing an

administrative function in connectionwith duties as a DA, and conduct doesnot violate clearly established law

--no immunity: bad stuff like harassment,which clearly falls outside the courseand scope of lawful powers and duties

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The Latest and Greatest

from the Courts

and the

Alphabet Soup Agencies

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Discrimination Cases

Employer liability often hinges onwhether the alleged harasser is asupervisor and not merely a co-worker. Ifthe harasser isn’t a supervisor, then theemployer is liable if it was negligent; butif the harasser is a supervisor, then theemployer may be strictly liable.

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So, the definition of “supervisor” makes ahuge difference. Some courts had definedsupervisors in the same way as the EEOC,as someone who directed the work of thealleged victim.

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The U.S. Supreme Court, instead, held in2013 by 5-4 that a supervisor must be ableto “take tangible employment action”against subordinates—e.g., hiring, firing,failure to promote—even if such actionsmust be approved by upper management.

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Retaliation

In another 5-4 decision in 2013, alsodisagreeing with the EEOC, the Courtrejected the notion that unlawfulretaliation could be proven if retaliationwas a motivating factor in an adverseemployment action, and instead held thatretaliation requires a but-fordetermination.

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Think you’ve had bad cases?

An African-American guy works on atugboat. His white co-workers repeatedlycall him the “N” word. One of thosedelightful co-workers tells him he ought toget his MF’ing “N” a** off the boat. Hegets transferred to a different boat, theharassment continues. The employeecomplains to HR—HR tells him to “lightenup.” But wait, there’s more.

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His new co-workers beat him up, stopping onlywhen a passing boat seems to notice thealtercation. He calls 911 and fearing for his life,he jumps in the Mississippi River and swims toshore. The company fires him for abandoning hispost. The court says, nah, that’s pretext. The courtsays, looks like there’s some racial animus.Wisely, though after public pleadings that won’tearn a Best Places to Work award, the employersettled.

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“Younger people are the future of thecompany”

What a wonderful sentiment—except when you’refiring a 65 year old employee! But that’sexactly what Mr. Potato Head said, telling Mr.65 Year Old to hit the bricks. Besides which,the company owed him unpaid overtime.

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In another age case, the brilliant companyfired an older employee for lackingcomputer skills—there were just acouple of problems. First, he had beendenied computer training. Andsecond…wait for it…they had a habit ofcalling him “old timer.”

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It’s not what you say the employeesdo, it’s what they actually do…

So, do your job descriptions reflect reality?Are those so-called essential functionsreally essential? Do employees really do thestuff that’s in their job descriptions? Afederal court reached the not-so-surprisingconclusion that actual job functionsdetermine what’s essential, and not merelywhat a job description may say.

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Sex, age, you pick it

A bank fired a 68 year old manager becauseshe was overheard by a customer telling herex-boyfriend the next time she saw him, she“would wear [her] nightgown, and it won’tbe my flannel one.” The court said that waspretext because it was a first-time offenseand, in the court’s view, not so egregious asto justify immediate termination.

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Jared will be happy to hear this

You know Jared, the Subway spokesperson,the guy who claimed he lost weight byeating Subway sandwiches? He might beglad to know that the American MedicalAssociation has now officially declaredobesity to be a disease—not just the sideeffects of obesity but obesity itself. Andwhat does this mean for employers? You’vealready figured it out. ADA, FMLA….

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EEOC fails in suit on backgroundchecks

In a major blow to the EEOC, a suitagainst a convention labor company ispitched because the EEOC couldn’t showthat the employer’s policy of conductingcriminal and credit background checksnegatively impacted blacks and men.

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In fact, the court concluded that theEEOC’s expert “in an egregious exampleof scientific dishonesty, cherry-picked”data to try to support the EEOC’s legalarguments, in addition to which the expertcommitted a “mind-boggling number oferrors.” It’s a 32-page opinion that justblisters the EEOC and its recent guidanceon the use of background checks.

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Don’t forget the FCRA

Yes, the EEOC has gotten into the businessof background checks but for many yearsemployers have been subject to the FairCredit Reporting Act when they use athird party to conduct background checks.It’s not enough to have a paragraph inyour job application form saying we cancheck your background.

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You have to provide an opportunity forrebuttal of negative information and advisean unsuccessful applicant of his rightsunder the law. Kmart and Sears havelearned this lesson the hard way—they’repaying $3 million to settle a class actionaffecting 64,000 claimants.

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No, we’re not immune

We law firms have our problems with theEEOC too. Discrimination claimsagainst law firms and other legalemployers were up 140% last fiscalyear. Feel better?

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Charter Schools

In a significant decision with realimplications for Louisiana, the NLRBrecently decided that charter schoolemployees are not public employees andthat they therefore have the right to formunions.

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One of the acknowledged advantages of thecharter school movement has been toprovide public education free of therestrictions of teacher unions in howschools are managed and operated.

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Because charter employees can nowunionize just like any other groups ofemployees in business and industry, andsince many of those employees have comefrom a unionized background, it was only amatter of time before organized laborrealized the implications of this decision andcommenced organizing efforts. One charterschool in NOLA has already becomeunionized.

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What are hours worked?

“Hours worked” includes time spent incompany meetings, and that time countstowards computing 40 hours to determineif overtime is owed. The Supreme Court isnow considering whether time spent byemployees “donning and doffing” workclothing is compensable time.

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Independent contractors

Roughnecks and crane operators areindependent contractors? No, says DOL inrecovering $687,000 in unpaid overtime forworkers at a company in Houston. Eventhough the workers sometimes worked asmuch as 80 hours in a week, they receivedonly straight-time for all the hours worked.

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As DOL noted, it’s the actual relationshipthat counts, not some label applied by theemployer, or giving workers 1099s insteadof W-2s. DOL also said employeemisclassification “is a problem wecommonly come across in the oil and gasindustry.”

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There’re some things you just can’t do

And one of them is waive your rights underthe FLSA. This is not new law but a recentcase reminds us that employees cannotagree to forgo overtime if they are entitledto OT.

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It cost a Subway franchisee $25,000 inbackpay to 53 employees to find out thehard way. That’s a lot more than it wouldhave cost to, say, get legal advice on howto correctly pay your people. I’m justsaying.

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Stock brokers, deep sea divers, sanitationworkers, rental car employees and floorinstallers – what do they all have in common?

They’ve all been granted conditionalcertification of class action status to sue theiremployers for minimum wage and overtimeviolations. The stock brokers were paidcommissions only, with no guarantee ofminimum wage. The divers weren’t paid forattending mandatory safety training and shiftbriefings.

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The sanitation workers were hourly sowho knows what their employer wasthinking. The rental car workers werecalled junior managers but theypunched a clock—and then their bosseswould cut their hours. The floorinstallers? Nothing complicated—thecompany just didn’t pay overtime.

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Unpaid interns

Like the buggy whip…

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Family and Medical Leave Act

How many times has this happened to you?

You ask an employee to justify a request forFMLA leave with a letter from theemployee’s doctor, and you get back ascribbled note that just says the employee isbeing treated for some ailment but with nofurther information about the need forleave, duration, etc.

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Well, finally, a federal court (our own FifthCircuit) has said that such a merely“conclusory” letter from a doctor doesn’tsatisfy the employee’s obligation to providespecific information an employerlegitimately needs for certification of theleave request.

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FMLA is never easy

According to DOL a child under 18 is a “sonor daughter” under the FMLA regardless ofwhether the child has a disability. Anemployee can get FMLA leave for a childunder 18 just by demonstrating a serioushealth condition.

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But for FMLA leave to care for an adultchild—over 18—the employee has to alsoshow that the child is incapable of caringfor himself or herself because of aphysical or mental disability as defined bythe ADA and a serious health condition asdefined by the FMLA which requirescare—all four criteria must be met.

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More FMLA

Apparently there really is a fairygodmother—at least a foundation by thatname. Because when the foundation grantedan employee’s mother’s dying wish that shevisit Las Vegas, the employee decided shejust had to accompany dear old mom whileshe gambled, shopped, gawked—butreceived no medical treatment. But theemployee also administered mom’s meds.

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Clever employee, she put in for FMLA leavewhich was denied but she took offanyway, and got fired. The court said,nope, it doesn’t matter where the caretakes place. As long as mom neededsomeone to care for her, it was legitimateFMLA leave.

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DOMA

So what does the Court’s overturning ofpart of the Defense of Marriage Act have todo with employment? In killing some ofDOMA, the Court held that federal benefitsmust be available to same-sex couplesmarried in states recognizing same-sexmarriage.

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But left unanswered, and part of whattroubled the dissent: Suppose two womenmarry in New York and move to Alabamawhich doesn’t recognize same-sex marriage.“When the couple files their next federal taxreturn, may it be a joint one? Which State’slaw controls…Does it matter if they werejust visiting in Albany?”

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Left undisturbed by the Supreme Court waslanguage in DOMA that says states that donot themselves recognize same-sex marriageare not required to recognize other states’same-sex marriages. FMLA regs define“spouse” as a husband and wife as definedby state law where the couple resides. Samefor Social Security and veterans benefits.Surely more to come.

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District Attorneys Are Bosses Too!

Employment Law and Liability

Brooke Duncan IIIOne Shell Square ▪ 700 Poydras Street, Suite 4500

New Orleans, LA 70139(504) 585-0220 ▪ brooke.duncan@arlaw.com