An FLSA Primer

Posted on April 27, 2010 by Rob Radcliff

Mark Shank and Bridget Blinn are lawyers at my firm who focus on advising employers on the Fair Labor Standards Act.  Their recent article, What is Work? FLSA Pitfalls at the Beginning and End of the Work Day tackles this statute:

The basic requirements of the federal Fair Labor Standards Act (“FLSA”) are easy to understand. Employees must be paid a minimum wage of $7.25 per hour (per the latest increase that went into effect in July 2009). Employers must also generally pay nonexempt employees overtime at a rate of at least one and one half times the regular rate of pay for all hours work in excess of 40 hours in a work week.

Unfortunately violations of the FLSA can be costly for the unsuspecting employer:

These two seemingly simple requirements are surprisingly difficulty to implement. Getting it wrong can be costly: Employers found liable for violations of the FLSA may be assessed damages for the unpaid overtime or minimum wages, liquidated damages equal to the amount of unpaid overtime or minimum wages, and reasonable attorneys fees and costs. Willful violations may carry criminal penalties upon conviction with fines of not more than $10,000 or imprisonment for not more than six months, or both, and there are also civil money penalties (payable to the Secretary of Labor) for repeated and willful violations of minimum wage and overtime requirements.

Their article provides an up to date perspective on the FLSA and is worth a look.

 

 

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Privacy Fights: Who owns your text message?

Posted on April 22, 2010 by Rob Radcliff

                                          

 

You've probably seen friends, coworkers, family members, and strangers glued to their "smart phone" of choice as if it is somehow an appendage.  The use/addiction to these items is increasing as we become more and more mobile.  A couple of interesting stats courtesy of CNN:

A Pew study found in January that 80 percent of American adults have cell phones and 30 percent of them access the internet on their phones. In 2000, 50 percent of American adults used cell phones, according to a Gallup Poll, and phones rarely supported access to the web.

More than 28 percent of employers fired a worker for e-mail misuse in 2007, compared to 14 percent in 2001, according to the American Management Association.

We can text, email (from both work and hotmail accounts), tweet, and post on Facebook from these devices.  Some of the devices may actually be provided by our employer or the employer may pay for data/wireless service.  So does an employer have the right to see those texts, posts, or emails? 

The United States Supreme Court is considering a California case where the Ontario, California Police Department reviewed sexually explicit text messages that a police officer sent from a police owned electronic device.  The Ninth Circuit previously held the police department's actions violated the officer's privacy rights because its actions constituted an illegal search and seizure.  The case was argued before the Supreme Court on Monday. As usual, SCOTUSBLOG has an excellent analysis of the case and play-by-play from the oral argument.   

Many think the Court will limit its opinion and any ruling will have limited implications.  Nevertheless, employers and employees should be cautious.  Employers have the right to look at company email in most circumstances, that seems to be accepted.  As previously discussed here, whether employers can review gmail or hotmail emails that emanate from a company computer or mobile device is unclear.  The same is probably true for texting or social media posting.  Now, the line becomes blurrier if the mobile device is owned by the employee but the service is paid for by the employer. 

Employers must proceed with caution and on a case by case basis before accessing these types of communications.  Of course, they could be very important in situations where an employee may be taking trade secrets or preparing to violate a non-compete agreement.  As is a recurring theme on this this blog, employees should assume that any electronic communication may ultimately be published to the world.  Though emails and texts are more convenient, phone calls and face to face meetings are still an option.

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How to enforce a non-compete without a non-compete.

Posted on April 12, 2010 by Rob Radcliff

                                              

Last year there was discussion about the DOJ's investigation of alleged improper hiring practices by companies like Google, Intel, IBM, and Apple.  Apparently, the DOJ has stepped up the investigation according to a Wall Street Journal article.  According to the article, the inquiry focuses on a pact amongst technology giants not to hire each other's employees:

The inquiry is focused on whether companies, particularly in the technology sector, have agreed not to recruit each others' employees in ways that violate antitrust law. Specifically, the probe is looking into whether the companies' hiring practices are costing skilled computer engineers and other workers opportunities to change jobs for higher pay or better benefits.

Apparently, the DOJ is struggling with how to challenge the practice because it has antitrust ramifications and results in keeping wages down. 

What a great deal for the employer:  Prevent your employees from leaving and keep their salary down at the same time without having to worry about the enforceability of a non-compete agreement.  Most employers constantly have to worry about the departure of talented employees to their competitors for more money.  If the allegations are true, that concern has been eliminated in portions of tech world.

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DFW Texas Recruiters Network

Posted on April 7, 2010 by Rob Radcliff

                                          

Today I have the privilege of speaking to the DFW Texas Recruiters Network.  Below are some resources and previous writings placement professionals might find of use:

 

 

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