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OA38: FLSA and Exempt Employees, Part 2 (Patreon)

Published:
2017-01-27 18:23:39
Imported:
2022-10

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Content

Today's episode is part two of our two-part series on pending changes to the Fair Labor Standards Act ("FLSA").  As we've previously mentioned, in 2016, the Obama Department of Labor promulgated new rules requiring that employees who are "exempt" from the FLSA's overtime requirements must earn at least $47,476 per year.  A district court judge issued an injunction blocking those rules from going into effect; that decision is currently pending on expedited review before the 5th Circuit Court of Appeals.  In this episode, Andrew continues his explanation as to why he thinks those rules are going to eventually go into effect and what that means for employers and employees.

We begin, however, with a thoughtful question from friend of the show Noah Lugeons regarding how the FLSA's tipping rules interact with Title VII of the Civil Rights Act of 1964.  Is it illegal for employers to rely on tips knowing how inequally tips are handed out to men and minorities?  Listen and find out!

After our main segment on the FLSA, we answer a delightfully mad question from Robert Rautio regarding the supposed "right to travel" in the Constitution.  Answering this doozy takes us back into the weird and wonderful world of "sovereign citizens" -- you won't want to miss it!

Finally, we end with a brand new Thomas Takes the Bar Exam question #8 about whether a company dumping toxic waste has a duty to warn trespassers.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show.  Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)!

Show Notes & Links

  1. The relevant provisions of the FLSA for this episode are 29 USC § 207 (maximum hours) and 29 USC § 213 (exempt employees).
  2. Title VII of the Civil Rights Act of 1964 begins at 42 USC § 2000e and can be found here.
  3. This is the original rule promulgated by Obama's Department of Labor.
  4. Here is the judicial injunction blocking the implementation of the rule.
  5. And here is the judge's decision not to overturn his own injunction after a motion for reconsideration.
  6. Please laugh at -- but DO NOT FILE! -- this suggested "brief" by the weirdos at The Lawful Path who think you can get out of a traffic ticket by filing this nonsense.  (You can't.)
  7. And here's another absolutely bonkers list of random string-cites that purports to show that you have an absolute right to travel guaranteed by the Constitution.  (You don't.)

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

Facebook:  https://www.facebook.com/openargs/

And email us at openarguments@gmail.com

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Comments

Anonymous

Is the doctrine of ex turpi causa a thing in the U.S.? If it is then I would lean towards D. Although the fact that the company knew of the squatters and took no action against them might cure the illegality.

Anonymous
>>3727124

I had to look that up. I'm thing that is not a thin in the US. "Ex turpi causa non oritur actio (Latin "from a dishonorable cause an action does not arise") is a legal doctrine which states that a plaintiff will be unable to pursue legal remedy if it arises in connection with his own illegal act."

Anonymous

I have one other question re: the FLSA regarding Time Sheets, Time Cards, Clocking In, etc... Doing a very quick search it seems that there is no Federal Requirement for time cards to be filled out (or any other such method of recording hours worked)... for salaried employees. Is that right? What if the "salary" part of your income is below minimum wage, but the rest of your income is 'performance based' (sales) and you easily clear minimum wage? Do those employees have to clock in and out? Could it also be that different states have different rules on this? Are salaried people required to "clock in" and "clock out". Are there exceptions to this?

law
>>3731104

This is a complicated question, but the shortest answer I can give you is that discretionary bonuses do NOT count towards the minimum. If they're nondiscretionary (i.e., not tied to sales but tied to time), the employer can rely on 10% of your salary as a nondiscretionary bonus to get you to the threshhold; that would be $4,748, meaning that a salesperson could theoretically be paid $42,728 and still be exempt. I would NOT advise any business to undertake that kind of a risky scheme; instead, I'd say reduce the nondiscretionary bonus and increase the base. If not, then yes, the employer is going to have to keep accurate time records or be sued.