Santa Claus, The Employee

My annual re-post of a very clever article analyzing the FLSA and Jolly Ol' Saint Nick, by Natalie F. Hrubos, an attorney in the Philadelphia office of Duane Morris. The original article can be found here: http://www.duanemorris.com/articles/santa_and_the_FLSA_4698.html

Delivering presents to the well-behaved children all over the world in a single night is hard work. Sure, Santa Claus makes it look easy with his jolly disposition, magical sleigh and team of eight flying reindeer. But does that mean he is any less entitled to compensation? Of course not! Let's just assume that Santa's employer—the North Pole, obviously—is covered by the Fair Labor Standards Act (FLSA). To comply with the law, the North Pole, like any other employer, has to ask itself certain questions.

First, is Santa's position exempt or nonexempt? There's no doubt that Santa works more than 40 hours per week during the holiday season. Think of all the letters pouring in from kids across the globe. Think of how much time it takes to figure out who's been naughty and who's been nice. The guy sees you when you're sleeping. If Santa's nonexempt, the North Pole owes him some serious overtime.

Santa may qualify for one of the FLSA's white-collar exemptions. For instance, Santa likely meets the duties test of the executive exemption if his primary duty is managing the North Pole enterprise: He customarily and regularly directs the work of at least two or more full-time elves, and he has the authority to make employment decisions, such as when to promote someone to lead reindeer. But if it's really Mrs. Claus and the head elf who perform these duties, then Santa likely does not qualify for the executive exemption.

Santa may, however, qualify for the administrative exemption. He probably meets the duties test for this exemption if his primary duty is the performance of office or non-manual work that is directly related to the management of the North Pole or its general business operations and if his work involves the exercise of discretion and independent judgment with respect to matters of significance.

Who goes on what list (naughty or nice) is certainly a matter of significance for the North Pole. But how clean must a child's bedroom be to earn her a spot on the nice list? How often must she share her toys with her siblings? And what if she tells the truth most, but not all, of the time? Santa necessarily uses his discretion and independent judgment when making these determinations.

That said, to qualify for the exemption, Santa's primary duty must be the performance of office or non-manual work. Traveling from house to house, sliding down chimneys and placing presents under Christmas trees would surely be considered nonexempt, manual work. But Santa does that only one night per year. Responding to letters from children could qualify as office work, but is that Santa's primary duty and is it directly related to the running or servicing of the North Pole's business? If either answer is "No," Santa may not qualify for the administrative exemption.

The reality is that even though the North Pole may pay Santa on a salary rather than an hourly basis, that doesn't mean Santa qualifies as exempt from the FLSA. If he doesn't meet the duties test for one of the FLSA exemptions, Santa is nonexempt and must be paid overtime compensation for every hour he works over 40 hours per week.

If Santa's position is nonexempt, then his Christmas Eve responsibilities present a number of additional compensation issues, such as whether the North Pole has to provide and/or pay Santa for his milk-and-cookie breaks; whether Santa is "on the clock" when he's using his iPhone to check in with the head elf; and whether his travel time to and from the North Pole and from house to house is compensable.

In some cases, the law of the North Pole may be more restrictive than the FLSA, and Santa's employer will be required to comply with whichever law is more beneficial to employees. The same is true with state law. For example, if a certain state requires employers to provide meal breaks, an employer is required to comply with the state law even though federal law does not impose such a requirement.

It doesn't take three wise men to figure out that an underpaid Santa Claus could put a real damper on the holiday season. Even if you're not the North Pole, you don't want to be on the wage-and-hour naughty list. Much like Santa, costly wage-and-hour lawsuits keep coming to town, so you may want to consider checking with counsel on how best to review and, if necessary, correct your pay practices. Happy holidays!

Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.

Public Employees Entitled to Two Additional Unpaid Holidays for Faith or Conscience

In an interesting effort to accommodate non-Judeo-Christian public employees, a new Washington law, which took effect on June 12, 2014, gives public employees an additional two unpaid holidays per calendar year "for reasons of faith or conscience." The measure amends RCW 1.16.050, which had granted public employees one paid floating holiday per calendar year in addition setting out the legal holidays recognized by the State of Washington. The new law adds two unpaid holidays allows for accommodation of employees with holy days which do not coincide with state legal holidays. The bullet points of the new law are:
1.  Affected Employers. The statute covers employees of the state and its political subdivisions, including all colleges, universities, counties, cities and towns. It also likely extends to municipal corporations such as fire districts and public transit agencies.
2.  Covered Absences. The new law covers absences for “a reason of faith or conscience or an organized activity conducted under the auspices of a religious denomination, church, or religious organization.” This definition encompasses religious holidays, services and other activities organized by a religious organization, even if not inherently religious. The statute also applies to employees who desire time off for reasons of “conscience,” thus covering employees who do not belong to organized religions.
3.  Denying Requests for Leave. Employers may deny requests for leave under the new law if the absence would impose “an undue hardship,” or if the employee’s presence is necessary to maintain “public safety.”
4.  Implementation. Although employers have a previous obligation under the Washington Law Against Discrimination to accommodate employee religious beliefs, this new statute creates a clear entitlement for two unpaid holidays each year. The new law requires that “local government employers” adopt guidelines implementing the new leave entitlement by ordinance or resolution of their legislative authority. Other public employers should implement the statute by adopting guidelines in personnel policies and procedures. These guidelines should explain the process for requesting leave, specifying where the request should be directed, the amount of required advance notice, and the person responsible for evaluating the request.


Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.

Washington Court Holds Employers Can Retaliate Against Indepedent Contractors

An independent contractor truck driver named Larry Currier heard another driver “yell ... at a Latino driver ... ‘[h]ey, f**ing Mexican, you know why you have to go to Portland and I don’t? Because f**ing Mexicans are good at crossing borders.’” Currier also reports previously having heard other racially motivated slurs and comments directed at a number of minorities who work for the same trucking company. The truck driver who overheard the racial slurs reported them to NSI’s quality assurance manager.

Two days later NSI terminated his contract.

He subsequently filed suit against NSI for retaliation under the Washington Stare Law Against Discrimination ("WLAD"), asserting his contract was terminated because he had reported discriminatory conduct.

In its defense, Northland Services Inc. ("NSI") argued that, "as an independent contractor, [Currier] ... was not an “employee” within the meaning of the WLAD and that it had "terminated ... [the contractor’s] contract because of poor performance and disruptive behavior ... [and therefore did not fire the contractor for discriminatory behavior].”

The Washington Court of Appeals, Division One, however, found that the WLAD applies to this case despite the fact that Currier was not an employee of NSI. In so doing, the Court upheld a trial court decision that NSI was liable for the retaliatory discharge of the independent contractor under the WLAD. The decision noted that the WLAD was enacted by the state legislature to “eliminate and prevent discrimination.” “The WLAD ... extends broad protections to ‘any person’ engaging in statutorily protected activity from retaliation by an employer or ‘other person.’”

The court noted that the Washington Supreme Court had previously held in Marquis v. City of Spokane that “under the broad protection [of the WLAD] ... an independent contractor may bring an action for discrimination in the making or performance of a contract for personal services where the alleged discrimination is based on sex, race, creed, color, national origin or disability.” The court also stated that “Washington cases have ... held that a plaintiff need not prove the conduct opposed of was in fact discriminatory but need show only that he or she reasonably believe it was discriminatory.”

The court stated that it did “not find credible the claim that ... [the contractor’s complaint to NSI] had no effect on the decision to terminate ... [the contractor’s] contract.” “Substantial evidence supports the court’s conclusion that ... [the contractor’s] complaint ‘tipped the scales toward termination.’”

Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.

Perseverance & Follow Through...

"Genius begins great works; labor alone finishes them." ~ Joseph Joubert

It Is All Relative.

Life is lumpy. And a lump in the oatmeal, a lump in the throat, and a lump in the breast are not the same lump. One should learn the difference. ~Robert Fulghum, Uh-Oh

New Washington Social Media Law Protects Employees’ Accounts

In response to growing issues related to privacy and an employee's online presence, Governor Jay Inslee recently signed s new law making it unlawful for employers to require an employee or applicant to disclose social networking website usernames or passwords, or to force an employee or applicant to add any person to the employee’s list of social networking contacts. This law will become effective July 28.

Washington joins a host of other states that have taken legislative action to protect employee social media accounts. Utah, New Mexico, California, and Michigan have passed similar laws, and more than 20 other states have similar bills pending.

Pertinent aspects of the new Washington law include:

* The law applies to “any person, firm, corporation, or the state of Washington, its political subdivisions, or municipal corporations.” Employers of any size are therefore covered by the law.

* The law specifically states that it does not prohibit an employer from using public domain to obtain information about an employee or applicant Thus, employers may continue to access publicly
available social networking profiles or comments. (Be sure to read up on the articles related specifically to Facebook and LinkedIn or give me a call to discuss some of the other risks and implications related to using even public information.)

* Employer-maintained social networking accounts remain fully accessible and are not impacted by this law. Employers are also still free to enforce existing social media policies that do not conflict with the new law or the National Labor Relations Act.

* Certain workplace investigations are specifically exempt from the new law. When employers are conducting workplace investigations surrounding an employee’s activity on his or her personal social networking account, they are permitted to request content from an employee’s account but are still prohibited from requesting an employee’s login information. Under this narrow exception,
the purpose of the investigation must be to: “(i) ensure compliance with applicable laws, regulatory
requirements, or prohibitions against work-related employee misconduct; or (ii) to investigate an
allegation of unauthorized transfer of an employer’s proprietary information, confidential information, or financial data to the employee’s personal social networking account.”

With this new law in mind, employers whose policies currently require employees or applicants to disclose personal username and passwords should begin implementing a change to those policies. Employers should also train anyone involved in making employment decisions on the new law’s provisions.

If an employer determines that it may need social media content to investigate legal compliance, work-related misconduct, or the improper disclosure of the employer’s proprietary or confidential information, then the law allows employers to request content from personal social media sites. Employers should consider seeking advice of counsel when considering whether such a need exists in a particular situation.
Employers should periodically review their existing social media policies and practices to make sure that they are in compliance with all current laws.

Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.

Welcome Spring!

There are exactly as many special occasions in life as we choose to celebrate. ~ Robert Brault