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09/14/2015

The NFL should pay cheerleaders a fair wage, a group of lawmakers across the US is demanding as this year’s football season opens.

Five of the 26 NFL cheerleading squads have brought legal action against their teams for being paid below the federal minimum wage of $7.25 an hour, because they are classified as independent contractors instead of employees.

“I believe that [the cheerleaders] should have all of the protections that they need to succeed both on and off the field,” said New York assemblywoman Nily Rozic, who earlier this summer, introduced the Cheerleaders’ Fair Pay Act for her state, an act that would require New York’s professional sports teams to classify cheerleaders as employees.

Wage Hour friends of Bob Chauvin, A celebration of his life will be held Saturday, October 3rd in Manchester, New Hamps...
09/08/2015

Wage Hour friends of Bob Chauvin, A celebration of his life will be held Saturday, October 3rd in Manchester, New Hampshire. The celebration is preceded by a brief committal ceremony at Mount Calvary Cemetery, 474 Goffstown Rd, Manchester, N.H. at 12:00 P.M.

The family would be honored to have former co-workers attend and share their pictures and stories. Please message Chari Chauvin on fb or email her at [email protected]. The celebration is also an outdoor, casual environment.

My letter to the editor appeared in the August 21, 2015 Dallas Morning News.
08/21/2015

My letter to the editor appeared in the August 21, 2015 Dallas Morning News.

07/18/2015

After reviewing the Firth Circuit remarks I went back and did some additional research including a review of the initial District Court filing on this case.

There are several aspect that I have issues with and naturally I would, since this case originated in my old region. At first I could not understand why such a case would have ever have reached the district court filing with policies that existed in the Dallas Region. Then I recalled that many policies that had been establishment by me and my predecessors where abruptly ended when a replacement Regional Administrator was appointed.

The litigation policy place was establishment many years prior to my departure. First there was a JRC procedure in place as provided for by the FOH. Our region went a step further though when we found the Regional SOL was unable or unwilling to process all legal cases sent to him. When our research revealed cases that had been lingering for up to seven years we decided that more appropriate procedures needed to be establishment.

It was evident that the Regional SOL did not have the capacity to process more than 150 legal cases a year and actually filing suit on the more egregious cases there would have to be a much lessor number. In order to make certain that cases being referred to the Regional Sol were capable of withstanding the highest lever of scrutiny, all cases JRC were sent directly to the regional administrator’s office. A review took place of that case by the RA, Deputed RA or Executive Assistant. All had significant experience in investigations and litigation. The Regional RSOL was not happy with that event and went to Washington to try to force the RA in Dallas to discontinue his reviews.

The process continued and cases that did not appear to be complete, had manipulated back wages, insufficient interviews, wrong determinations , lacking facts, etc. went back to the District office for reinvestigation. Many of this case were settled at the District Office level and were never returned to the Regional Office.

A newly appointed RA did away with that process. He had neither the experience nor qualifications to review such cases thus such cases once again were sent to the Regional SOL.

In the case involving Gate Guard Services there are so many “flags” raised by the District Court filing that it appears almost impossible that such a case would have reached the district court level.

Some statements made by the court are most troubling. How could an investigator get a case so wrong and how did the case get past review at the District Office level and where was the regional office in all of this? Those questions are certainly not answered in detail in either the district court’s or appeal court’s ruling.

Some statements apparently replied upon by the courts would hold “little water” and seem to be the wording or thoughts of a legal clerk in one of those offices. For example there was heavily reliance on the statement that the investigator “conducted an investigation for which he was not trained? This is in direct reference to being able to make a determination as to whether a person is an employee or independent contractor. Apparently the court writer is under the impression that such training would have to be extensive and of long term. Those that have been investigator know this is not true.

The conduct of the representative from the regional solicitor’s office is reprehensible, degrading and most unprofessional. It reflects a clear lack of training, professionalism and an utter disregard for the legal system. I can easily understand how this would weigh heavily in the minds of those in the courts when decision time rolled around.

The investigator’s rationale for showing up for an opening conference a week early and demand records from a low level company employee is very unprofessional and reflects poorly not just on the investigator but the agency as well. Getting complaints from a drinking “buddy”. Sure----that is how a federal agency goes about it’s investigative business. Give me a break!

The destruction of background notes seems to be prevalent in this administration and that is apparently what the investigator did.

It was nice to note that the investigator’s supervisor found several violations of internal policy. The first one noted was the computation of back wages even before completing the investigation. We all know what this was about. Back wages play an important part of the investigator’s performance evaluation at years end. Oh the agency will deny this the same as police departments deny there is no ticket quotas.

What is most troubling is the significant inflation the investigator put on the computations causing the agency to significantly reduce the estimate from over six million dollars to around two million dollars. While this is poor, it is not uncommon within the agency, as all levels seem to gravitate toward higher unrealistic back wage figures in hopes of getting a smaller voluntary settlement. Once when a national office official pressed a regional employee about how much back wages were due, the regional official took a marker from the board and wrote an astronomical figure that came to his head. The figure had no correlation to actual back wage due.

I am most disturbed by a DOL attorney that objects to questioning 102 times in a 45-minute deposition. I have given dozens of deposition and while at time hoped counsel would object, I nevertheless managed to answer and move on to the next question.

How could the government deny the plaintiff’s attorneys copies’ of internal memo as being “privileged” when DOL was filing those same documents with the courts?

Now the sad part. Lost in all of this is a real determination as to whether these guards were independent contractors or employees.

Frankly I would have taken the position they were employees but that I cannot really tell from the court documents or actions of the agency. Even though the courts have relied upon other court cases and a ruling by another federal agency, there are still questions in my mind as to the proper classification of those workers.

The good part----if I was still a consultant this would easily be a six figure consulting job where I suspect there will be more investigations and legal cases in the future before this matter is actually settled.

The real question, which has not actually been answered by the Department of Labor, the Solicitor’s office or the courts. Are these people independent contractors or employees? The ultimate inquiry under the FLSA is whether the worker is economically independent on the employer nor whether the worker is truly in business for himself and stands with other businesses in losing money, making a profit, etc.

07/11/2015

This is a copy of an article by Kevin Fritz. I have been concerned for years about the failure of a few in Wage Hour who attempt to "MAKE LAW", by claiming back wage amounts that were unsupportable. Cases like this one at the Fifth Circuit, will not help Wage Hour in it's enforcement and will no doubt start a crumbling of the very foundation so many of us built in years past for a strong and fair law enforcement agency.Lowing of back ages during the process from $6.2 million to $2 is most disturbing.I am likewise puzzled by how this case ever got to the courts as there just has to be multiple review levels still in place or has the Department done away with those? This first paragraph is strictly my thoughts and opinion. Those of Mr. Fritz follow.

“Erroneous”
“Vindictive”
“Indefensible”
“Disruptive”
“Debacle”
“Belligerent”
“Botched”
“Dubious”
. . and these words are only from the first seven pages of the opinion.

The Fifth Circuit Court of Appeals recently slammed the United States Department of Labor with a finding of abusive conduct and ordered an award of significant monetary sanctions for bad faith, harassment, and abusive litigation. In what is notably a colorful opinion, a unanimous three-judge panel of the Fifth Circuit Court of Appeals found that the Department of Labor acted in bad faith during its 2010 probe and subsequent litigation with Gate Guard Services: a Texas security company that provides guards at oil drilling sites.

Backdrop

In 2010, the Department began a formal investigation after a government investigator received a tip from a drinking companion and former employee of Gate Guard. The “tip” led to a $6.2 million penalty, claiming the Company misclassified its employees as independent contractors and owed back pay for minimum wage and overtime violations to its 400 gate attendants. The Department later lowered the back wages to $2 million, but that did not prevent the Company from suing the government in the U.S. District Court for the Southern District of Texas to overturn the penalty.

Claiming that the labor department investigator failed to ask basic questions, improperly interviewed workers, and shredded/burned handwritten notes, in 2013, the district court sided with the Company and ruled that the gate attendants were independent contractors – not employees entitled to minimum wage and overtime. Soon after, the department was ordered to pay Gate Guard nearly $600,000 to cover legal fees.

Enter the Fifth Circuit and its Colorful Prose

$600,000 was the wrong amount according to the Court of Appeals. Writing for the unanimous panel, Judge Edith Jones descriptively noted that at nearly every turn, the investigation and prosecution violated the Department’s internal procedures and ethical litigation practices.

From the deliberate destruction of evidence and ambushing low level employees for interviews without counsel to demanding inflated penalties and unnecessarily opposing routine motions, the Fifth Circuit fired – and hit – the bull’s-eye of the government’s abuses, and pulled out all the stops in describing the government’s misconduct.

“The government’s extraordinarily uncivil and costly litigation tactics strongly suggest that it hoped to prevail by oppressively pursuing a very weak case,” Judge Jones wrote. The government pressed on even after it discovered its lead investigator based his conclusions on just three interviews, destroyed evidence, and demanded a “grossly inflated” multimillion-dollar penalty, according to the ruling. Once in litigation, the government opposed routine motions, refused to produce evidence, and “stonewalled” the deposition of its lead investigator, the appeals court found.

Gate Guard will now return to the lower court to determine how much more money it will receive.

Repercussions

Coming on the heels of the Second Circuit’s recent rulings in intern wage cases against the Hearst Corp. and Fox Entertainment Group Inc., last week was not a good week for the Department of Labor.

Assuming the Department’s investigators and attorneys follow its own procedures, hopefully a colorful ruling like this won’t again be necessary. But in the Fifth Circuit at least, the ruling will likely lower the bar to bring bad faith claims against the government when its investigators or attorneys do not comport with the standards expected of them.

06/12/2015

Authored by Alex Passantino

While much of Washington, DC, begins its preparations for the inevitable summer slowdown, the Department of Labor’s Wage and Hour Division appears to be ramping up for a summer sure to keep wage and hour lawyers across the country hopping (and likely ruining some planned vacations).

Since WHD’s proposed rule made its way over to OMB’s Office of Information and Regulatory Affairs (OIRA) just over a month ago, there has been rampant speculation about the timing of the proposal’s public reveal. In the meantime, numerous organizations have met with OIRA to provide their thoughts on the expected rule. Those meetings go into next week. As a result, we expect that the proposed rule will be formally announced no sooner than the end of next week, and almost certainly before the month’s end. We will, of course, keep you updated as we learn additional information.

Once the proposal has been released, WHD does not plan to simply sit back and wait for the comments to roll in. WHD Administrator, Dr. David Weil, recently announced that he plans to issue an Administrator Interpretation clarifying who qualifies as an independent contractor under the FLSA. This is not all that surprising, given Dr. Weil’s interest in the employment relationship, notably his focus on fissured industries. The concepts articulated in any guidance are likely to be far-reaching, and will also need to be carefully considered in a wide variety of other putative employment contexts, such as franchising and subcontracting. Notwithstanding the significance of this issue, the Administrator Interpretation simply gets released, and there will be no opportunity for public notice-and-comment. No formal timetable has been given by WHD, but expect it to be released this summer.

Then, as the white-collar proposal’s comment period begins to draw to a close (or gets extended), WHD intends to publish a Request for Information (RFI) on the use of smartphones and their impact in hours worked under the FLSA. Although no formal rulemaking has been proposed, remember that the Department’s RFI on Family and Medical Leave Act use and abuse in 2006 led to a report in 2007, and a proposed rule and final rule in 2008.

So, this summer, look for your fellow wage and hour geeks. We’ll be the ones reading Federal Register pages out by the pool.

06/08/2015

As part of a settlement agreement reached with Staples Inc. and Staples Contract and Commercial Inc., Staples defendants have agreed to pay Jeffrey Angstadt $137,500 in lost wages and benefits, as well as an equal amount in liquidated damages, the U.S. Department of Labor reported.

This came after Angstadt was eligible for federal workplace protections for those coping with the illness of a family member and no one from Staples Contract and Commercial notified him as the law requires. Angstadt used his personal, sick, and vacation days to take care of his ill wife.

As a part of the settlement, the company will also promote an enterprise-wide policy for compliance with the FMLA by providing training for human resources and other managerial personnel with respect to FMLA notice and eligibility requirements; post FMLA enforcement posters in workplaces; and investigate and respond to complaints of potential FMLA violations concerning an employee's notice of FMLA rights, including correcting violations when discovered.

05/26/2015

This is an update concerning the passing of Bob Chauvin as provided by his daughter Chari Chauvin. Bob was living with Deb in Hillsboro, OR since the passing of Sandy his wife in 2009. Bob had a form of Parkinson's Disease that included dementia however he continued to maintain some of his sharp wit and intellect. He died peacefully Wednesday May 20th at the age of 83. There will be a memorial service for Bob in his hometown of Manchester, NH on Saturday October 3rd. The family would like to see any Wage Hour retiree or current employee attend. The details will be forthcoming and as soon as I receive them I will share with each of you.If you would like to send a note or card to Bob's daughter, Chari, please address it to Chari Chauvin, 3296 SE Willow St., Hillsboro, OR 97123

The United States has recorded more than 20 wars during it short years of existence, starting with the Revolutionary War...
05/24/2015

The United States has recorded more than 20 wars during it short years of existence, starting with the Revolutionary War (1775-1783) to the current conflicts we are engaged in. It was during the Civil War that our nation recorded over 498,000 military deaths. Those numbers in the other wars, while not nearly as staggering, have been tremendous.

On this day we honor the men and women who have sacrificed their lives for the freedoms we have today. We honor those that survived these wars but are suffering from the effects of war. We say thanks to the families who have likewise suffered throughout the many wars and years as they have lost family members and loved ones.

While many will celebrate with bar b q, sports , games and beer, the day is all about these men and women. May God bless then all yesterday, today and tomorrow!!

If I could make just one wish today it would be directed to our churches throughout the country. I would ask that they recognize all of these men and women this morning at their main service. I know down deep inside this is not going to happen, even in my own church. Sad isn’t it????

I located Don Essig in this photo with myself. Does anyone have information about Irv Levine and Reggie Brown?
04/21/2015

I located Don Essig in this photo with myself. Does anyone have information about Irv Levine and Reggie Brown?

03/17/2015

Many of you may recall that we were told we could not sue our employer, the U.S.Government. Even before I retired I carried liability insurance just in the vent I was sued and even after retirement and while doing consulting work, I was concerned about lawsuits. When I was in Washington I inherited a package of papers from my predecessor who had maintained a voluntary liability policy for managers. Then a young Dep Under Secretary came in as head of the agency and ordered me not to continue with that liability insurance. Employees could not be sued. Not exactly true as I was sued by a rag company out of El Paso a short time mater.

Today I was given an article that Federal Workers have been successful in suing the Federal Government for not paying them on time during the partial shutdown of 2013. The lawsuit, which appears to be the first such case brought by federal workers against their employer, seeks compensation of $7.25 an hour for each hour worked without on-time pay between 10-1-2013 and 10-5-2013. The cost could total anywhere from millions to as much as a billion dollars.

03/17/2015

Federal employees making more than $100,000 a year would see their salaries slashed by thousands of dollars, under legislation introduced recently.

The Promoting Accountability in Decisions (PAID) for Progress Act, introduced by Rep. Tom Rice, R-S.C., would, upon passage, cut all salaries for employees making more than $100,000 by 8.7 percent. The reduction would also apply to members of Congress and the president.

Afterwards, federal employee pay would be tied to increases in the real median household income, while members of Congress would be given raises dependent on changes in the same index since being sworn into office

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