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Dayton, Ohio, August 7, 1865 

To My Old Master, Colonel P. H. Anderson, Big Spring, Tennessee

Sir:

I got your letter and was glad to find you had not forgotten Jourdan, and that you wanted me to come back and live with you again, promising to do better for me than anybody else can. I have often felt uneasy about you. I thought the Yankees would have hung you long before this for harboring Rebs they found at your house. I suppose they never heard about your going to Col. Martin's to kill the Union soldier that was left by his company in their stable. Although you shot at me twice before I left you, I did not want to hear of your being hurt, and am glad you are still living. It would do me good to go back to the dear old home again and see Miss Mary and Miss Martha and Allen, Esther, Green, and Lee. Give my love to them all, and tell them I hope we will meet in the better world, if not in this. I would have gone back to see you all when I was working in the Nashville hospital, but one of the neighbors told me Henry intended to shoot me if he ever got a chance.

 

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February is Black History Month.  I thought it would be appropriate to incorporate a post or two a week on the topic.  A sensible place to start seemed to be with a discussion of how Black History Month came to be. 

So. . . do you know who Carter Woodson is?

Click through to find out.

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Earlier this month, the National Labor Relations Board ("NLRB") issued a ruling that the National Labor Relations Act prohibits mandatory arbitration policies forcing employees to give up their rights to participate in class action lawsuits over workplace conditions.

The decision in D.R. Horton, Inc., 357 N.L.R.B. No. 184 notes as a jumping off point that the Board and the courts have previously held that Section 7 protects the right of employees to join together to pursue workplace grievances, including through litigation. The Board, embracing a narrow interpretation of the U.S. Supreme Court’s decision in Concepcion, then concludes that “employees who join together to bring employment-related claims on a classwide or collective basis in court or before an arbitrator are exercising rights protected by Section 7 of the NLRA.” The Board therefore found that Horton, by making the arbitration agreement a condition of employment, explicitly restricted activities protected by Section 7.

You can read the entire decision here.

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"This is not a black holiday; it is a people's holiday," -- Coretta Scott King, Nov. 2, 1983. 

A Baptist minister, King became a civil rights activist early in his career. He led the 1955 Montgomery Bus Boycott and helped found the Southern Christian Leadership Conference in 1957, serving as its first president. King's efforts led to the 1963 March on Washington, where King delivered his "I Have a Dream" speech. There, he expanded American values to include the vision of a color blind society, and established his reputation as one of the greatest orators in American history.

In 1964, King became the youngest person to receive the Nobel Peace Prize for his work to end racial segregation and racial discrimination through civil disobedience and other nonviolent means. By the time of his assassination in 1968, he had refocused his efforts on ending poverty and stopping the Vietnam War. He was posthumously awarded the Presidential Medal of Freedom in 1977 and Congressional Gold Medal in 2004.

Martin Luther King, Jr. Day was established as a U.S. federal holiday in 1986.

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Employment Lawyer Daniel Scwhartz has a piece out this week in the Connecticut Law Tribune titled "What Does Magic 8-Ball Think About 2012?" 

Daniel discusses many expected 2012 employment law developments both nationally and in his home state, including expected Supreme Court decisions.  He is keeping his eye on:

Christopher v. SmithKline Beecham Corp, in which the court will decide the scope of the “outside sales” exemption under the Fair Labor Standards Act. The case arose over a dispute regarding the overtime pay of SmithKline’s pharmaceutical sales representatives. Pharmaceutical companies have traditionally viewed sales reps as “outside sales” employees, meaning they are exempt from overtime pay. The U.S. Department of Labor has disagreed. A decision is expected in June.

The Court will also be deciding the scope of the “ministerial exception” in Hosanna-Tabor Lutheran Church & School v. EEOC. At issue in whether the First Amendment restricts employment-related suits against religious organizations. The law has been universally applied to pastors, priests and rabbis who allege discrimination. But there is a divide about whether the doctrine extends to other church employees. This case is likely to set forth some of the parameters. A decision in this case is expected by June 2012.

I recommend the article to your reading.  You can find the entire article here.

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Though many of the people they care for wouldn't know it, the roughly two million home care aides who tend to the elderly and disabled don’t enjoy the basic protections of most American workers, such as a guaranteed minimum wage and time-and-a-half for overtime. Such workers are also not paid for the time they spend in the car driving from client to client. But a new federal rule could change that, boosting the pay for such workers.

Congress extended FLSA coverage to "domestic service" workers in 1974, amending the law to apply to employees performing services of a household nature in or about the private home of the person by whom they are employed. Domestic service workers were made subject to the FLSA even though they worked for a private household and not for a covered enterprise. Domestic service workers include, for example, employees employed as cooks, butlers, valets, maids, housekeepers, governesses, janitors, laundresses, caretakers, handymen, gardeners, and family chauffeurs. The 1974 Amendments also created an exemption from both the minimum wage and overtime pay requirements of the Act for casual babysitters and persons "employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves." Congress also created a more limited exemption from the overtime pay requirement for domestic service employees who reside in the household where they work.

The legislative history explains that the 1974 Amendments were intended to include all employees whose vocation was domestic service, but to exempt from coverage babysitters and companions who were not regular bread-winners or responsible for their families' support. It was not intended to exclude trained personnel such as nurses, whether registered or practical, from the protections of the Act.

The home care industry has undergone a dramatic transformation since the Department published the implementing regulations in 1975. There has been a growing demand for long-term in-home care for persons of all ages, in part because of the rising cost of traditional institutional care, and because of the availability of funding assistance for in-home care under Medicare and Medicaid. The growing demand for long-term in- home care for persons is also partly due to the significant increase in our aging population.

In response to the growing demand for long-term in-home care, the home health care services industry has grown. According to the National Association of Home Care (NAHC) publication, Basic Statistics About Home Care (March 2000), data from the Department of Health and Human Services' Health Care Financing Administration (HCFA) showed that the number of Medicare-certified home care agencies increased from 2,242 in 1975 to 7,747 in 1999. In the NAHC 2008 update, this number increased to 9,284 by the end of 2007. The number of for-profit agencies not associated with a hospital, rehabilitation facility, or skilled nursing facility, i.e., freestanding agencies, increased more than any other category of agency from 47 in 1975 to 4,919 in 2006. These for-profit agencies grew from 2 percent of total Medicare-certified agencies in 1975 to 68 percent by 2006, and now represent the greatest percentage of certified agencies. Public health agencies, which constituted over one-half of the certified agencies in 1975, now represent only 15 percent.

There has been a similar increase in the employment of home health aides and personal care aides in the private homes of individuals in need of assistance with basic daily living or health maintenance activities. Bureau of Labor Statistics' (BLS) national occupational employment and wage estimates from the Occupational Employment Statistics (OES) survey show that the number of workers in these jobs tripled during the decade between 1988 and 1998, and by 1998 there were 430,440 workers employed as home health aides and 255,960 workers employed as personal care aides. The combined occupations of personal care and home health aides constitute a rapidly growing occupational group. BLS statistics demonstrate that between 1998 and 2008, this occupational group has more than doubled with home health aides increasing to 955,220 and personal care aides increasing to 630,740.

The growth in demand for in-home care and in the home health care services industry has not resulted in growth in earnings for workers providing in-home care. The earnings of employees in the home health aide and personal care aide categories remain among the lowest in the service industry. Studies have shown that the low income of direct care workers including home care workers continues to impede efforts to improve both jobs and care. The DOL believes that protecting domestic service workers under the Act is an important step in ensuring that the home health care industry attracts and retains qualified workers that the sector will need in the future. Moreover, the workers that are employed by home care staffing agencies are not the workers that Congress envisioned when it enacted the companionship exemption i.e., neighbors performing elder sitting, but are instead professional caregivers entitled to FLSA protection.

The most important change proposed by the DOL would limit the companionship exemption to companions employed only by the family or household using the services. Third party employers, such as in-home care staffing agencies, could not claim the exemption, even if the employee is jointly employed by the third party and the family or household. This rule would effectively overrule overrule the 2007 Supreme Court decsion Long Island Care at Home, Ltd. v. Coke, and would require 3rd party employers such as staffing agencies to pay companions and home health workers overtime under the FLSA when they work in excess of 40 hours per week.

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Patrick Danner of the Express News is covering this story involving a Medal of Honor winner who has brought suit against his former employer, alleging the employer defamed him and interfered with his ability to seek gainful employment.

 

A lawsuit brought by a U.S. Marine awarded the Medal of Honor against his former employer underscores the treacherous ground companies must navigate if they reveal too much about the circumstances surrounding an ex-employee's employment or termination.

 

Lawyers generally advise companies to say very little about ex-employees, otherwise those companies risk getting ensnared in costly and time-consuming litigation.

 

“In a lot of cases, saying something like (why someone was a bad employee) might be legal and you might be able to beat the rap, but you can't beat the ride. You could still get sued,” said Chris McKinney, a San Antonio lawyer who primarily represents individuals in employment disputes.

 

As the article details, proving that an employer is black-balling an employee by giving out false and defamatory information about you can be extremely difficult.  Before you call a lawyer, however, keep in mind that it is perfectly legal for an employer to say not nice things about you to a prospective employer . . . as long as the statements are fact-based and TRUE.  

There are third-party providers who can attempt to check what type of references you are getting (a lawyer cannot do this for you).  These usually run between $100-$200 and can give you some piece of mind if you are concerned what type of reference you might get from your last boss.  

If you have a serious indication that your past employer is making false, defamatory statements about you that are harming your ability to get hired, then you definitely should consult with an employment lawyer.  There may be steps short of litigation that will resolve the issue.    

Read the entire story.

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 If your employer has categorized you as an "outside sales" rep and you are, therefore, not entitled to overtime pay, then this is a case you will want to be following.  The U.S. Supreme Court, ("SCOTUS") has agreed to hear Christopher v. SmithKline Beecham, to decide whether outside pharmaceutical reps are exempt from the overtime requirements of the FLSA.

Specifically, the Court has taken the case to decide the following issues:

1. Whether deference is owed to the Secretary of Labor's interpretation of the Fair Labor Standards Act's outside sales exemption and related regulations; and 
2. Whether the Fair Labor Standards Act's outside sales exemption applies to pharmaceutical sales representatives.

 Issue number 2 is going to get all of the attention from the media and most laypeople.  However, the first issue - what deference is due a federal agency by the Court - is what most lawyers will be following.  Agencies and the regulations they issue affect all of us in our daily lives.  Given the ever-increasing impotence of Congress to get anything done, agencies are likely to be given even more opportunities to issue regulations (which work like laws to you and me) about important areas of our business and personal lives.  Is this good or bad?  Opinions vary.

These regulations must then be interpreted to fit individual factual situations.  Arguing about what regulations mean in a particular context is a big part of what lawyers and judges do.  This case strikes right at the heart of that work.  The Court's decision will either strengthen the authority of an agency to interpret its own regulations or possibly require an agency to go through a more cumbersome rule-making procedure before it can change an interpretation. 

Court Documents:

• Supreme Court Docket
• 9th Circuit Opinion
• Petition for Certiorari 
• Respondent's Brief

Read More:

• SCOTUS will hear FLSA pharma sales rep case – LawMemo Employment Law Blog
• Supreme Court to Hear Case on Scope of Outside Sales Exemption - Ohio Employer's Law Blog
• SCOTUS Grants Cert. in FLSA Case – Lawffice Space
• Supreme Court To Decide Whether Pharmaceutical Sales Representatives Meet The FLSA’s Outside Sales Exemption – Wage and Hour Litigation Blog
• Pharmaceutical Sales Representative Case Goes to Supreme Court – Wage & Hour Insights

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A technology Web site, PhoneDog.com, and one of its former chief editors are duking it out in a legal battle that could impact anyone who tweets from work.

Employee ("Noah Kravitz") is suing PhoneDog over his employment contract.  The employer has counter-sued - and here is the interesting part - claiming that Kravitz personal Twitter handle "PhoneDog-Noah" actually belongs to the company and that Kravitz essentially stole it by not turning it over to the company when he left their employment.

According to this article in SlashGear, the company values the Twitter followers at $2.50 a pop - that's $370,000 per year for the roughly 17,000 followers the account currently has.  According to the article, Kravitz reports that the company did not ask him to create the account; he did it on his own and posted both work-related and personal tweets to it.

Clearly, the employer's claim on the account is murky at best.  But this cautionary tale should give pause to any employee that posts to Twitter regarding issues that are in some way related to his/her work.  Perhaps it would be best not to include a specific reference to your employer in you Twitter handle, at the very least.

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