New York Employment Lawyer Blog

I have two offices- one in New York City and the other in San Francisco. While it would have been far easier to open another office closer to NYC, like Connecticut or Massachusetts, I choose a place 3,000 miles away from my family and friends - San Francisco. To be clear, I am admitted to the California bar, went to law school in California and worked in LA for several years in the '90s.

The San Francisco office is small (right now) - it consists of me, my computer, my wife and our two dogs. But all new ventures must have an opening, a beginning, a start if you will. That is how the NYC office began. The NYC office is thriving and successful. I travel back and forth between the two cities to manage new business development, current cases and office management. While I can do most of this from SF, I chose to go back to NYC because sometimes I need a bite of the big apple.

I have an apartment in San Francisco with a great view of San Francisco Bay. Here is the view.

Here is a pic of our two dogs at the beach who also enjoy the West Coast life style.

Running two offices and living the bicoastal life requires a key tools. First, you need strong and responsible employees to keep your operation flowing smoothly while you are developing new business. One major tool that helps me manage this new business development is technology.

Basecamp is online project management and collaboration software that is used by famous companies such as Patagonia, Adidas, Kellogg's, Warner Brother's, USA Today and millions of others. Basecamp has provided my business the freedom of not being tied down to a physical location - where I am has become irrelevant. With Basecamp one of my best employees works remotely from home as she is a stay-at-home mom. She does amazing work for our firm and is able to take care of her children at the same time - all because of technology.

The other key tool with bicoastal living is video conferencing through ichat or Skype. Just yesterday I interviewed several job applicants in NYC from my SF apartment with Skype video conferencing. While I could have flown back to NYC for the 1st round of interviews, I chose to Skype with the office and applicants. It not only saved money and time for the firm, it also helped me realize that we needed to get more applicants in before I flew back for 2nd round interviews.

I know I sound all happy and bright because I live in California, truth be told there are some downsides to the bicoastal lifestyle.
(a) I am not quite sure if I would want to do this forever.
(b) It is hard to find solid and hardworking talented lawyers who actually are responsible for their work and themselves. Graduating from a top law school is not a guarantee of good performance. I have hired attorneys from the best law schools and who turned out to be the worst employees and the not-topnotch law schools and who turned into the best lawyers. You should not have to watch your lawyers like you are potty training your 2 year old child.

To sum up - there are pros and cons to bicoastal living. It is challenging, great, frustrating and exhillarting! Long term - I'm pretty sure I made the right choice. If I can get the SF office up to the size and volume of the NYC office then I will have a fantastic business in two of the best cities in the country. It can and will be done - eventually.

If anyone has any experience doing this kind of thing I would love to hear from you and if anyone is looking for an employment lawyer in San Francisco or NYC please give me a call. My NYC firm has been around now for over 10 years and all we do is help employees. Our focus is on overtime pay and other wage & hour matters.

Sarbanes Oxley whistle blower claims do not get a lot of attention. A lot of them never see the light of day because the Department of Labor has a very high rate of rejection. But for the patient and persevering, these can be very interesting and powerful cases.

The whistle blowing provision, section 1514A, is broader than many realize, myself included. I used to think that these cases had to involve conduct that directly involved shareholder fraud. But it covers far more than that.

The elements of a SOX whistle blower claim under section 1514 mirror the basic elements of a retaliation claim: (1) protected activity by the plaintiff, (2) knowledge by the employer of the protected activity, (3) adverse employment action against the plaintiff, and (4) a causal connection between the protected activity and the adverse action.

The protected activity is not limited to reporting conduct that amounts to shareholder fraud. Section 1514 provides that a publicly traded company may not retaliate against an employee who provides information that concerns (1) mail fraud, (2) wire fraud, (3) bank fraud, (4) securities fraud, (5) any rule or regulation of the SEC, or (6) any provision of federal law regarding fraud against shareholders.

Under this standard, any employee of a public company who reports any kind of fraud is probably covered. The fraud can be simple wire or mail fraud that does not have any direct connection to shareholders.

For example, in O'Mahony v. Accenture (S.D.N.Y 2008), the plaintiff threatened to report the company for defrauding French tax authorities. The company told the plaintiff that it intended to knowingly conceal its failure to pay French social security taxes. When the plaintiff objected, the company demoted her.

She filed with the DOL and they, of course, bounced her case but she held tough and filed a claim for de novo review in the SDNY. In that case, Accenture argued that the case should be dismissed because it did not involve shareholder fraud. The court rejected this argument because the complaint clearly alleged that the plaintiff reported wire or mail fraud and this was enough. This holding makes it clear that the protected activity does not have to concern shareholder fraud.

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The Second Circuit is favoring the prompt production of contact information for putative class members in FSLA actions.  First, a little background on how these cases are handled in the Second Circuit.   This summary comes from the excellent three page decision by J. Sand in Whitehorn v. Wolfgang Steakhouse, Inc. 2010 WL 2362981 (S.D.N.Y.)

In the Second Circuit, courts follow a two-stage certification process for collective actions filed under the Fair Labor Standards Act seeking overtime pay, minimum wage payments and related relief.   The first stage is conditional certification and it requires only a "modest factual showing" that the putative class members were victims of a common plan or scheme that violated the FSLA.

If the plaintiff can make this initial showing, the court will conditionally certify the collective action and permit notice to be sent to the putative class members.  The employer can later move to decertify the class if the evidence shows that the claimants are not similarly situated.

In pre-certification discovery, plaintiffs typically seek the names and contact information of the putative class members.   Employers oppose these requests for various reasons.   Some employers argue that releasing the contact information of it's employees will violate the employees' right to privacy, others argue that such information should not be produced until the plaintiff can make a showing that the claims have merit or the existence of similarly situated individuals.  Courts in the past have come to different conclusions with some denying the requests and others granting them.

In Whitehorn v. Wolfgang Steakhouse (June 2010), the court stated that the weight of authority in the Second Circuit requires the prompt disclosure of this information because it will be helpful in defining the class and in establishing that the action should be conditionally certified.  The court also cited cases from other jurisdictions (Texas, Illinois and Kansas) that also require the early release of employee contact information.

This policy is rooted in a USSC decision, Hoffman-La Roche, Inc. v. Sperling, stating that "the broad remedial goal of the FSLA should be enforced to the full extent of its terms"  and pre-certification discovery is appropriate to enable plaintiff to define the class and identify similarly situated employees.   The Whitehorn court noted that early disclosure of employee contact information is needed so that putative class members can opt in early and stop the FSLA's statute of limitations from running - it continues to run until the opt in form is filed by the employee.

Whitehorn is a good case for plaintiffs who want to move quickly and pre-certify the class.   It also makes it clear that last known telephone numbers must be provided.

Yesterday, the Court of Appeals for the D.C. Circuit relied upon the U.S. Supreme Court's Ledbetter decision to reverse a district court's finding that an FSLA overtime claim was time barred.  The court ruled that each faulty pay check amounted to a new violation of the FSLA.

In that case, Figueroa v. District of Columbia Metropolitan Police Department, a group of police officers sued the Metropolitan Police Department (MPD) for unpaid overtime under the FSLA.  The officers argued that they should have been classified as detective sergeants under the District of Columbia Code and paid additional amounts of overtime under the FSLA.

The MPD argued on summary judgment that the overtime suit was time barred because the subject classification decision was made more than three years before the officers filed suit.  The district court agreed and dismissed the officer's case.

The Court of Appeals reversed the trial court citing Ledbetter v. Good Year Tire & Rubber.   Ledbetter held that "it is well established that the statute of limitations for violations of the ... overtime provisions of the FSLA runs anew with each paycheck."  550 U.S. at 641.   The Court of Appeals held that a new separate cause of action accrues ... on the payday for each workweek in which the employee has worked and has not been paid ... overtime compensation.

The Ledbetter decision created controversy when it held that a new Title VII cause of action did not accrue each a time a new discriminatory pay check was issued.   So why did the Ledbetter Court treat FSLA claims differently than Title VII discrimination claims?  The Court explained the distinction between Title VII claims and FSLA claims is that the FSLA does not require proof of specific intent to discriminate while Title VII  does.  A Title VII plaintiff had to prove that each paycheck was issued with specific discriminatory intent and an FSLA overtime plaintiff does not bear this burden.   The Lilly Ledbetter Fair Pay Act subsequently removed this burden for Title VII plaintiffs.

Bottom Line: This opinion simply restates what should already be well known.  The SOL for FSLA overtime claims does not start ticking when the classification decision is made.   Instead a new cause of action accrues with each paycheck.

If part of your compensation comes in the form of company stock, you should know about "put rights." Company founders, key executives and others who work for new ventures and established firms are often paid in company stock. What happens if they get pushed out of the company and are left with a pile of stock that cannot be sold? Is there any way to turn that stock into cash?

Yes, the company can be forced to buy back the stock at fair market value but only if a put right was included in the shareholders agreement. Watch the video below for more on put rights and how they can make a big difference.

Before suing a company in an employment case, we like to know who we are up against.   We are less likely to sue a company that treats its employees and customers well.   The best companies to sue are those that treat people poorly because there will be less loyalty - employees, partners, vendors  and even customers might come forward to help.   One indicator of a problem company is a high number of lawsuits that have been filed against them.   Here is a list of the companies with the most federal law suits.

Source: Public Access to Court Electronic Records (PACER)

Read more: http://www.foxbusiness.com/markets/2011/01/18/sued-companies-america/#ixzz1DWwuRbgk

The new defense strategy is sifting through a plaintiff''s Facebook and other online profiles to find damaging evidence.   At first, courts resisted but now a person's online life is vulnerable.   Read about the changing landscape here.

Plaintiffs in employment disputes could find their Facebook postings and pictures becoming part of the case.   Claims of emotional distress will be countered by Facebook photos and postings.   A person's resume can be cross checked with their Linkedin and Facebook profiles.  Basically, the world is becoming transparent - no secrets.   Litigation will change.

It is a shame that people cannot freely express themselves online.

Plaintiffs lawyers might want to review a person's Facebook profile before accepting their case because that profile might be evidence in the case.

If a sexual harassment victim claims to have suffered severe emotional distress, you better make sure that her Facebook profile does not recount ski trips or parties or anything that makes her look like she is having fun.   If a plaintiff in an employment discrimination case claims that he cannot find alternate employment, there better not be postings of his latest fishing trip or travels overseas on Facebook.

Social networking sites have changed the way we interact with others and they may also impact the way we resolve our employment disputes.

Yesterday the Wall Street Journal's Law Blog posted another piece on the awards paid out to corporate whistleblowers.   They ask if these awards are too high and quote a Skadden partner, Mike Loucks, who thinks it is time to cap these awards.

Skadden is a corporate law firm so naturally its partners espouse a reduction in payouts to employees.   I am on the other side of the fence.  My firm represents individuals and I see what people go through when they challenge a corporation.

You have to be daring and tough to be a whistleblower.   Blowing the whistle can have an adverse impact on a person's career and surviving years of litigation is taxing.

Those people who have the guts to bring a whistleblower claim and who survive the process and win, deserve everything they get.   Reducing the awards paid out to whistleblowers is not a good idea because the tattletales will stop telling.

Also, MIke Louck of Skadden suggests that whistleblower awards should be capped at $2M.   Lets do the math.   If a whistleblower gets a $2M award, the whistleblower will only see a fraction of that amount.   First, the whistleblower will have to pay his lawyer at least half of that amount to cover the contingency fee and expenses.   That leaves $1M left.   But now taxes must be paid to the federal, state and local governments and this will leave the whistleblower with about $500,000 - about 25% of the award.    Whistleblower awards are taxable - see here.

The Facebookfiring case brought by the NLRB settled today.   In that case, American Medical Response of Connecticut fired an employee for disparaging a supervisor on Facebook.   The National Labor Relations Board (NLRB) filed a claim against American Medical for violating federal laws that protect an employees right to discuss work related matters online and elsewhere.

This case generated media attention because it was the first case that attempted to set boundries between a person's work and their private online activities.   Countries such as Germany have passed laws that prohibit employers from disciplining employees for their private online activities.

Since the NLRB case just settled, we will never know how the case would have turned out.  From the reports I have read, the case did force the company to change its policy.   The fired employee did not get her job back but the company agreed to change it policy that barred employees from criticizing the company or its supervisors on websites, blogs or in any other communication.

We recently filed a similar case in New York City against J.P. Morgan Chase.   In that case, J.P. Morgan fired our client because she blogged and wrote novels under an assumed name.   Her blogging and writing did not have any connection to her work at J.P. Morgan.   J.P. Morgan had a policy that prohibited this kind of conduct.

We sued J.P. Morgan under New York Labor Law Section 201which prohibits discrimination against employees for engaging in lawful recreational activities outside of work.   We filed the case in New York Supreme Court, but J.P. Morgan juste removed the case to federal court.   Our first appearance in court is set for March 16, 2011.   As far as we can tell, this is one of the first cases of its kind filed in New York.

In our view, an employer should not be able to regulate an employees private lawful recreational activities including a person's right to blog or engage in social networking.

We get a lot of questions about severance packages.   People want to know what is in one and how much money they should contain.   New York severance packages vary from company to company and there is no set formula to determine their value.  Most severance packages in NY, however, usually contain some or all of the following:

1.  Severance Pay

Severance pay is an amount that the company has decided to pay a departing employee.   I can be paid in a lump sum or paid out over time.  Some companies use rough formulas to determine severance pay and they range from one weeks pay for each year of employment to a months pay for each year of service or more.  Or the amount may not be linked to the length of employment.   Typically higher ranking company officers receive more money than lower ranking employees.   Some top level executives even have their severance pay determined in advance in their employment agreements.   There is no legal formula that must be followed and there is no rule requiring the payment of any severance.

2.  Separation Agreement

This is a contract that sets out the terms of an employee's separation from the company.   It will typically explain the amount of severance pay, the end date of employment and any obligations that the employee owes to the company such as a promise not to compete or steal clients or customers for a set time.   The agreement will usually contain a waiver of any rights including the ability to file a law suit against the company for anything.   Employees, of course, are not required to agree to any of these terms but the employee will usually not receive their severance pay unless they sign the agreement.

3.  Outplacement Services

Many companies provide outplacement services as part of a severance package. I have never seen much value in these services and usually ask companies to pay our clients more money in lieu of these services.   Some employees, however, find that these services are helpful.

4.  Health Insurance

Health benefits usually end on an employee's last day of employment.  Some companies will provide departing employees with a period of paid health insurance coverage as part of severance package.   Most employers are required under COBRA to provide employees with the option of paying for their own health insurance at the company rate for 18 months.   COBRA notices are not usually part of a severance package.

5.  Vacation Pay

Depending on a companies policy, an employee may receive a check for any unused vacation pay and floating holidays.

6.  Stock Options or Company Equity

A severance package will usually explain the value and payment terms of any equity interest owned by the employee.

For more information on severance packages, please see our Severance Guide.

Arbitration is a common method of resolving employment disputes, but there is a sleazy side to the process.   First, most employees are unwittingly duped into arbitration on their first day of employment when they sign a stack of forms and handbooks provided by Human Resources. Buried in these documents is an arbitration clause that most employees do not know about.   But even if the employee was aware of the arbitration clause, they are powerless to remove it because they must agree to arbitration in order to get the job.   So most employees do not truly enter into arbitration on a voluntary basis - instead they are either tricked or coerced into it.

But it gets worse.   Once a dispute arises, employees are required to select an arbitrator.   But employees typically know nothing about the arbitrators and there is no way to independently research an arbitrators history or prior dealings with the company. Employees are in the dark.

Employees also are not likely to select an arbitrator again so the arbitrators may feel more inclined to favor the company who is far more likely to need an arbitrator again.   Not only are employers likely to be repeat customers, they are more comfortable with the process because they decided to use arbitration in the first place and they may even develop relationships with the arbitrators.

A recent case in Texas demonstrates the inherent unfairness of the process.  In that case,  the arbitrator had tried cases before involving the company, it's lawyer and even the same company representative.   But the arbitrator did not disclose the prior relationship to the unsuspecting employee.   After the employee lost his case, he somehow found out that the arbitrator had lied about his past dealings with the company.   The arbitration was later reversed on appeal because of the arbitrator's misconduct, so the employee was lucky to get another chance. Read the post by the San Antonio Employment Blog for more details on the corrupt arbitrator.

However, the Texas case is unusual because most employees will never know about the arbitrators prior relationships.   There is no public data base that records an arbitrators prior cases for employees to review.  The employee in Texas somehow discovered the arbitrators prior relationships, but most employees will never know.  Employees are generally forced to rely on an arbitrators honesty and willingness to disclose his or her past cases and relationships with the parties, and we know from the Texas case that arbitrators cannot always be trusted.

I have handled quite a few arbitrations and some of them have taken place in smaller cities around the country.   In a few of these arbitrations, there was an almost clubby friendship between the arbitrator and the company lawyers - it was unnerving. However, many arbitrators are honest and fair and do excellent work.  The problem is that the system is closed and employees are forced to rely upon an arbitrators integrity to disclose potential conflicts of interest.   This is a flaw in the system.  If employees are required to arbitrate their cases, at a minimum there must be an easy way for employees to independently verify an arbitrator's history.

One of the most common questions we hear at our employment law firm is, "how much is my case worth?"   This question is usually impossible to answer because there are so many variables in employment cases.

One factor is the lost income incurred.  For example, if a person earned $80,000 a year and was out of work for two years, then their lost pay claim is worth approximately $160,000 plus interest and the value of lost benefits and other compensation.  Also, if the new job pays less than $80,000 annually then an additional amount must be added.    In addition to lost compensation, many cases also have the potential to recover amounts for emotional distress if the facts support it and the value will be easier to establish if employee obtained medical treatment for the distress.   It is very difficult to estimate the value of an emotional distress claim though.

Another way to gauge the value of cases is to look at the recoveries obtained in similar cases.   There are several resources that provide histories of jury verdicts and settlements.   Also many websites and blogs contain verdict and settlement information.  For example, I recently found a list of verdicts and settlements obtained by the Equal Employment Opportunity Commission posted at the Laconic Law Blog. I will post those findings in below to give you some insight into the value of certain employment cases:

WI – A settlement was reached between the EEOC and TRC Global Solutions in a retaliation suit brought on behalf of a former employee who alleged she was fired one day after she complained about discrimination.  The consent decree provides that the company will pay compensation, refrain from future retaliation, and provide anti-discrimination and retaliation training to its employees.

FL – A construction company will pay $125,000 to settle a sexual harassment suit brought on behalf of a group of female employees who alleged they were subject to a sexually hostile work environment by management.

NY – A children’s clothing retail operator agreed to pay $22,500 in settlement of a pregnancy discrimination suit brought by the EEOC on behalf of a former employee who alleged she was fired shortly after she announced she was pregnant.

KA – Cactus Grill agreed to pay $150,000 to settle a sexual harassment suit brought on behalf of a teenage female server who alleged she was sexually harassed by her manager and then discharged.

IL – A janitorial services company agreed to pay $3 million to settle a racial discrimination suit alleging that the company failed to hire and recruit African American job applicants.

MI – A Days Inn Hotel franchisee will pay $50,000 to settle a sexual harassment and retaliation suit brought on behalf of female housekeeper who alleged she was sexually assaulted by her supervisor and then retaliated against after she resisted his advances.

TX – A security services firm will pay $52,500 to settle a sex discrimination suit brought on behalf of a group of female security guards who alleged they were discriminated against based on their gender with respect to security guard posts.

NC – Tuscarora Yarns, Inc. agreed to pay $230,000 to settle a sexual harassment and retaliation suit filed by the EEOC on behalf of a female employee who alleged she was harassed by the plant manager and then retaliated against for complaining about the conduct.

OH – A cable company will pay $75,000 to settle a sex discrimination suit alleging that qualified female applicants for cable technician positions were denied hire while similarly or less qualified male applicants were hired.

MO – A restaurant in Alton will pay $75,000 to settle a sexual harassment suit brought on behalf of female employees who alleged they were subject to sexual harassment by an executive of the restaurant.

OK – Burlington Northern & Santa Fe Railway Company will pay $95,000 to settle an age discrimination suit brought by the EEOC on behalf of two male job applicants who alleged they were denied hire because of their age.

PA – A telecommunications company agreed to pay $66,000 to settle a religious harassment suit brought on behalf of Jewish employees who alleged they were subject to harassment because of their religion and that the company failed to take remedial measures after they complained.

GA – A parking company will pay $46,000 to settle a religious discrimination suit brought on behalf of a former Muslim employee who alleged she was fired for refusing to remove her hijab.

FL – Callaro’s Prime Steak & Seafood, LLC will pay $10,000 to settle a disability discrimination suit filed on behalf of a former employee with an HIV-positive family member who alleged she was forced to resign because the company regarded her as disabled.  Upon learning of the family member’s condition, the company requested the employee get tested for HIV; when the employee refused, the company reduced her work hours.

MD – Innershore Enterprises, Inc. agreed to pay $20,000 in settlement of a disability discrimination suit brought by the EEOC on behalf of a concession manager who alleged she was fired after the company learned she was HIV-positive.

LA – A national waste removal firm will pay $95,000 to settle a disability discrimination suit brought on behalf of a former truck driver who alleged he was fired because of his disability, dyslexia.  Shortly before the scheduled trial, the company admitted that the employee was indeed fired because of his disability.

When a group of employees bring a putative class action suit against their employer, a potential conflict of interest immediately arises.   This potential conflict exists because all of the employees in the proposed class may soon be in an adverse position with the company.   But technically those employees in the proposed class are not adverse until the case is certified as a class action.

This dynamic came into focus recently in a tip pooling case against Starbucks.   In that case it was alleged that Starbucks refused to share tips with Assistant Store Mangers in violation of the New York Labor Code.   Starbucks defended on the ground that the Assistant Store Managers are managerial employees who are not entitled to share the tips.

The named plaintiffs moved to certify the case as a class action under rule 23 of the Federal Rules of Civil Procedure.   Starbucks opposed the motion by submitting declarations from 16 Assistant Store Managers who described the scope of their duties in order to establish that the ASMs were managers.

The plaintiffs promptly deposed half of the ASMs about their declarations but during the depositions, Starbucks' counsel would not let the ASM's testify about the execution of their declarations under the attorney-client privilege.  The plaintiffs then filed a motion compelling answers to these questions as well as all emails and other documents that concerned the selection of the ASMs and the execution of their declarations.

The court, United States Magistrate Judge Francis of the Southern District of New York, held that "within a corporation ... the attorney-client privilege protects communications by corporate employees to counsel for the corporation who is acting as a lawyer when the communications are made at the direction of corporate superiors in order to secure legal advice and the employees were aware that they were being questioned in connection with the provision of such advice."  The plaintiffs argued that the privilege did not exist because Starbucks' counsel did not represent the ASMs individually.   The Court rejected this argument and held that the privilege existed and it belonged to Starbucks and not the ASMs as Starbuck's counsel never pretended to represent the ASMs individually.

The court recognized that a complication exists because the employees were members of the putative class.   As the class had not yet been certified, Starbucks was not prohibited from communicating with putative class members.   Courts generally permit pre-certification communication with putative class members absent a court order or evidence indicating that the communication is misleading or improper.  Since the communications did not appear improper, Starbucks counsel properly communicated with the ASMs and since the attorney-client privilege attached to those communications, the ASMs are forever barred from revealing those communications absent a waiver by Starbucks.

This ruling makes it clear that company counsel can communicate with putative class members prior to certification so long as those contacts are not misleading or otherwise improper.   Moreover, these communications are also likely to be protected by the attorney-client privilege in favor of the company and the employees are barred from revealing those communications in the future even if the case is later certified as a class action.

See the entire opinion here and a post on the same case by The Wage & Hour Litigation Blog.

Champ, that sad looking mascot in the picture is hanging his head for good reason.   He has been putting in 80 hour weeks and not being paid for all that hard work.   He stopped cheering for the team and now is suing them in federal court for overtime pay.

The man inside of that mascot outfit was Brian Bonner.   Bonner claims that he was paid a salary of $22,000 to be the mascot but wound up putting in 80 hour weeks doing random work for the team.  He thinks that he should have been paid overtime for those extra hours of work.

Bonner argues in his suit that the team misclassified him as a "manager" in a bogus attempt to avoid paying him overtime.   If Bonner was a genuine manager, meaning that he actually managed employees, he would not be entitled to overtime pay.  But most real managers do not jump around in furry costumes on baseball fields - so I think Mr. Bonner might have a good case.

But Bonner claims that he was not a manager, instead he was just a mascot who was made to do various random team work when he was not cheering the team on the baseball field.

The Scranton Yankees are going to have an uphill battle convincing a court that their mascot was actually a bone fide manager.   The Yankees most likely are guilty of misclassifying Mr. Bonner as a manager when in reality he was just a mascot who did odd jobs when he was not being a mascot on the field.   Misclassifying employees is a common schemed used by companies around the country to cheat employees out of overtime pay.

In order to determine whether Bonner was legally entitled to overtime pay, the court will apply the "duties" test.   The court will examine Bonners actual job duties to see if he really was a manager.   In order to be a manager, Bonner must have regularly directed the work of two or more other full-time employees and have management as his "primary duty".

But in this case, it is pretty clear that Mr. Bonner's primary duty was being a mascot and not a manager.   But we will have to wait and see what evidence the Scranton Yankees can produce to show that their mascot really is a manager.