Posts Tagged ‘ Employment ’

8 Things an Exempt Job Status Deprives you of…

October 15th, 2013. By AbiK

A lot of questions we receive here at LawyersandSettlements.com have to do with employment…things like what counts as on-the-job harassment, whether or not someone is owed overtime pay, and questions about wrongful termination. One of the trickiest areas of employment though has to do with misclassification—i.e., whether someone’s position is considered exempt or non-exempt. We discuss misclassification in greater detail on our Unpaid Overtime-Employment info hub on our website. But beyond what most people consider to be the difference between exempt and non-exempt—that exempt jobs don’t qualify for overtime pay while non-exempt ones do—there are other things you should be aware of if you’ve recently been switched over or promoted into an exempt position.

Exempt positions tend to be ones that pay a salary rather than an hourly rate. For many, the chance for what could be a higher rate of pay and no longer “working on the clock” makes pursuing exempt positions worth the trip. Here though are eight protections that an exempt job status deprives employees of—provided by the State of California Department of Industrial Relations (you can find this info at your own state’s department of labor).

8 Things an Exempt Job Status Deprives you of Protection for…

overtime premium;
minimum wage;
reporting time pay;
requirement of records under the IWC Orders (but not records required by the Labor Code);
requirement that employer furnish uniforms and equipment (except, of course, that any expenditure by an employee is recoverable under CA Labor Code Section 2802).
requirement that meals and lodging amounts be limited;
meal period requirement;
rest period requirement;

Tags: Employment, Labor Law, Unpaid Overtime, Wage and Hour
Posted in Emerging Issues, Employment | No Comments »

Ms. ‘Lean In’ Sheryl Sandberg Called ‘Exploitive’ over Unpaid Intern Job

August 14th, 2013. By AbiK

Say it isn’t so! You have to love social media—where everything you (or your hired minions) say can, and will, be held against you. Enter Sheryl Sandberg, author of the much-talked-about “Lean In” book and COO of Facebook. Ms. Sandberg, herself, did not apparently say anything on Twitter, but one of her minions, Jessica Bennett—who ‘heads up editorial’ for Ms. Sandberg’s Lean In team (whatever that really means) did tweet something about an available gig as an unpaid intern on the Lean In team.

That was on Tuesday. Today, according to a post over at Gawker, there had also been a post by Bennett on Facebook that offered up the gig.

Ordinarily, it might sound like a great opportunity. But, given how much Ms. Sandberg is probably reaping financially from both Facebook and her book sales, why is the job “unpaid”? And isn’t it a bit at odds with the whole Lean In female empowerment thing? Take risks! Sit at the table! Seek challenges! But, by the way, if you’re goal is to sit at MY table, don’t expect to receive a dime from me.

Not to mention, last we looked, an intern is supposed to be learning something on the job—this job description sounds like the Lean In team is looking for more of a seasoned pro. Here are the requirements for the unpaid intern:

“Part-time, unpaid, must be HIGHLY organized with editorial and social chops and able to commit to a regular schedule through end of year. Design and web skills a plus!”

You have to love the chutzpah there. Note to Ms. Bennett: Merriam-Webster defines “chops” as “expertise in a particular field or activity”. Hmm. That would seem to be at odds with the requirements of an unpaid intern who would typically come to a company in order to be trained on-the-job.

Oh, but it’s all for the prestige of getting dumped on to promote Leaning In!

For kicks, here’s the image of Bennett’s Twitter post that appeared over at Gawker (note the comments):

Here’s some advice for Ms. Sandberg and her Lean In team: practice what you preach…walk the talk (ugh, hate that saying but the shoe fits) and pay your damn interns. Otherwise, maybe you should refund everyone who bought your book; after all, it’s starting to sound a bit like consumer fraud…

Tags: Employment, Lean In, Sheryl Sandberg, unpaid interns, Wage and Hour
Posted in Consumer Fraud, Emerging Issues | 1 Comment »

Judge To Hearst Interns: Sorry, Sue for Yourself; No Class Action Lawsuit Here

May 14th, 2013. By AbiK

Was this any surprise? The one-time Hearst intern, Xuedan Wang, aka Diana Wang—who sued Hearst (Xuedan Wang v. The Hearst Corporation, U.S. District Court for the Southern District of New York, No. 12cv793) claiming that she and other interns at the various Hearst magazines were unfairly misclassified—has not been granted the class action lawsuit status she was after.

Wang’s initial lawsuit claimed that her unpaid internship at Harper’s Bazaar violated the federal Fair Labor Standards Act (FLSA) and New York state labor laws. (For the record, the U.S. Labor Department states that unpaid internships must be educational and “for the benefit of the intern.”)

Now, forget about the fact that many of us have done internships and we completely “got” what we willingly signed up for: on-the-job training for zero (or very low) pay and a nice addition to a resume. What Wang’s complaint stated was that, “Unpaid interns are becoming the modern-day equivalent of entry-level employees, except that employers are not paying them for the many hours they work.” Earth to Wang et al, internships at top magazines in NYC—as well as at many other places—have always been about entry-level tasks being performed by unpaid wannabes. It’s a tit-for-tat arrangement—the company gets some help, the intern scores experience and a credential. No one promised glamour and prestige—or any pay.

So somewhere along the path from Baby Boomer, to Gen X, to Gen Y/Millennials, it would appear the definition of “intern” has changed. Here are some (non-legal) definitions from Merriam-Webster and TheFreeDictionary.com, respectively, as the word relates to labor:

an advanced student or graduate usually in a professional field (as medicine or teaching) gaining supervised practical experience (as in a hospital or classroom)
someone, as a student or recent graduate, working as an apprentice or trainee to gain practical experience in an occupation

Seems an intern gets “practical experience”. No mention of a paycheck. And, might I add, if a paycheck were what Wang et al were after, here’s a tip: apply for a job. (fyi, here’s Merriam’s definition of “job”: “a piece of work; especially : a small miscellaneous piece of work undertaken on order at a stated rate” —note the words “stated rate”).

But, of course, why pay your dues in a highly competitive industry when you can try to file a class action lawsuit because, unlike the millions of interns who preceded you, YOU are special? Btw, if that sounds jaded or sarcastic—note that according to a Facebook page dedicated to Wang’s intern class action lawsuit attempt, she “worked seven unpaid internships before she got fed up.” SEVEN folks. At that rate, it’s kind of hard to point the finger at anyone else but Wang—and it starts to look like maybe she needed some career coaching.

If you don’t think living a fashion intern’s “Groundhog Day” x7 reveals enough about Wang’s (insert “misguided”?) approach to breaking into the glam world of haute couture and ready-to-wear, check out these Wang quotes from a NY Magazine article, “The Norma Rae of Fashion Interns”, that ran when the class action was initially filed (apologies to the real Norma Rae, Crystal Lee Sutton)—the quotes hint at a sad naivete about not only working in fashion, but also about work in general:

“I’d been dreaming of standing in their offices for fifteen years,” she says. “I was so ready to give everything I had. I couldn’t imagine that the dream of mine was becoming real.”

“This was going to be my only ticket to the industry,” she says. “I didn’t have unlimited resources. I was going to make the time worthwhile. I was going to be remembered by people.”

“I was so uncomfortable and stressed out,” she says. “It was hard to get people to understand how an intern could be stressed out, but the editors constantly stressed that this was a real job and if this went wrong or if that happened, it would be my fault.

Kind of makes you think of that sad sack who’s putting all his hopes and dreams on that one Powerball lottery ticket…sure you gotta be in it to win it, but you also have to have a realistic view of your chances.

Regardless of all that, this is indeed, about a class action lawsuit and as such, it needed to go through the rigorous review for certification. And that means that from a legal perspective, in order for there to be a “class” established for the lawsuit, certain requirements need to be met: numerosity, commonality, typicality and adequacy of representation.

According to Reuters, the judge who presided over the employment misclassification filing, U.S. District Judge Harold Baer, found that the “former interns failed to meet the bar set out in the Supreme Court’s landmark 2011 case Dukes v. Wal-Mart to constitute a class action. Specifically, Baer found that the interns did not meet the standards of commonality and predominance needed to be considered a class.”

How so?

Baer explained in his decision, “Here, while a close question, the commonality requirement is not satisfied because plaintiffs cannot show anything more than a uniform policy of unpaid internship.” That included the fact that the interns in the proposed class worked for different magazines and performed different tasks. Reuters reports that Baer also denied the plaintiffs’ motion for summary judgment on whether they met the definition of an employee.

So what now?

Well, Wang et al can now try to sue Hearst individually—not as a class. Though it’s unlikely that many will choose to do so as the interns were seeking minimum wage—and the cost to litigate such a case for a net return of minimum wage minus attorney fees is probably just not worth going to the mat for…

Tags: Class Action Lawsuit, Diana Wang, Dukes v Wal-Mart, Employment, Harper's Bazaar, Hearst Intern Class Action, U.S. District Judge Harold Baer, Wagte & Hour
Posted in Class Action, Emerging Issues, Employment | No Comments »

Top 10 OSHA List of Most Cited Workplace Violations for 2012

December 19th, 2012. By AbiK

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) recently announced a preliminary list of the top 10 most frequently cited workplace safety violations for 2012 (needless to say, as 2012 isn’t quite over yet, the list isn’t completely final, but it’s surely close).

OSHA’s top 10 most frequently cited workplace safety violations for 2012 are as follows:

1. Fall Protection – 7,250 total violations – this includes failure to protect open sides and edges, failure to prevent falls from a roof, failure to cover holes or excavation areas such as a well, pit, shaft, or similar excavation of 6 feet or more in depth. Proper guardrail systems, fences, barricades, or covers should be in place.

2. Hazard Communication – 4,696 total violations – this relates to the failure to provide adequate education and training programs, signage, labels on containers of hazardous materials, and safety data information.

3. Scaffolding – 3,814 total violations – Scaffolding topped OSHA’s list in 2011, but still remains high up on the list in 2012. Violations involving scaffolding pertain to scaffold construction, and use of protective guardrails, safety nets or other safety precautions, and violations pertaining to proper access to scaffolding.

4. Respiratory Protection – 2,371 total violations – respiratory protection violations include unsuitable respirators–either due to sizing/fit or inadequate function, and lack of procedures or training for how to use respirators.

5. Ladders – 2,310 total violations – this includes improper use of ladders (e.g., standing on the top step), use of an improper ladder for a particular job and allowing excessive loads on ladders.

6. Machine Guarding – 2,097 total violations – this includes improper placement or inadequate anchoring for fixed machinery, or improper and unsafe exposures at the point-of-operation (e.g., unsafe exposure to machine blades)

7. Powered Industrial Trucks – 1,993 total violations – violations here include lack of proper repair and upkeep of vehicles to ensure safety; lack of proper training for operators–or refresher training as needed/required.

8. Electrical Wiring – 1,744 total violations – this includes everything from improper use of extension cords to use of temporary wiring instead of permanent wiring.

9. Lockout/Tagout – 1,572 total violations – this one was number five on OSHA’s list for 2011; it includes violations that occur due to lack of training and inspections for the servicing and maintenance of machines and equipment in which the unexpected start up of the machines or equipment, or release of stored energy, could harm employees.

10. Electrical (General) – 1,332 total violations – general electrical violations include instances of electrical shock or electrocution.

Tags: Employment, OSHA, Safety Violations, Workers Compensation, Workplace Safety
Posted in Employment | No Comments »

Bullying at Work Latest Top Legal Issue

September 4th, 2012. By AbiK

LawyersandSettlements.com recently published our top 10 lawyer interviews for the month of May, 2012—based on your clicks. What was interesting was that the interview Jane Mundy had done with California employee attorney Donna M. Ballman, P.A. on workplace bullying and harassment on the job was the number one interview for the month.

Just as bullying in the schoolyard—and all forms of bullying such as that which we learned about in the national media after Rutgers University student Tyler Clementi took his own life—have become the focal point for new legislation and tougher penalties, bullying at work has become a hot legal issue.

Just last month, HRMorning published an article highlighting the top legal issues HR pros need to be mindful of for the remainder of 2012. Number 2 on the list? Workplace harassment.

The Workplace Bullying Institute (WBI)—you know an issue has hit a groundswell when there’s an organization dedicated to it—states that 35% of US workers have reported that they’ve been bullied at work. Of note, WBI informs that that’s about the equivalent of the combined populations of Washington, Oregon, California, Nevada, Arizona and Utah.

The organization also defines bullying on the job as the following:

“Workplace Bullying is repeated, health-harming mistreatment of one or more persons (the targets) by one or more perpetrators that takes one or more of the following forms: verbal abuse; offensive conduct/behaviors (including nonverbal) which are threatening, humiliating, or intimidating; and work interference—sabotage—which prevents work from getting done.”

While a definition of workplace bullying provides a guide of bullying tactics, for employees and managers, being aware of signs that might indicate an escalating situation—including workplace violence—is just as important. The U.S. Office of Personnel Management (opm.gov) shares the following as signs of workplace violence to be on the lookout for—the signs were identified by the Federal Bureau of Investigation’s National Center for the Analysis of Violent Crime, Profiling and Behavioral Assessment Unit:

Direct or veiled threats of harm;
Intimidating, belligerent, harassing, bullying, or other inappropriate and aggressive behavior;
Numerous conflicts with supervisors and other employees;
Bringing a weapon to the workplace, brandishing a weapon in the workplace, making inappropriate references to guns, or fascination with weapons;
Statements showing fascination with incidents of workplace violence, statements indicating approval of the use of violence to resolve a problem, or statements indicating identification with perpetrators of workplace homicides;
Statements indicating desperation (over family, financial, and other personal problems) to the point of contemplating suicide;
Drug/alcohol abuse; and
Extreme changes in behaviors;

Tags: Attorney Donna Ballman, Discrimination, Employment, Jane Mundy, Job Harassment, Workplace Bullying, Workplace Bullying Institute, Workplace Harassment
Posted in Emerging Issues, Employment | 1 Comment »