Before this law passed, many domestic workers were unprotected because the employment discrimination and overtime pay laws only applied to larger employers. Small family operations were not covered, this left domestic workers unprotected. The New York City Administrative Code, for example, does not apply to any operation that has less than four employees.

In the past, at our law firm, we would hear stories of sexual harassment and other employer abuses involving domestic workers, but there was nothing we could do other than suggest that they call the police. In one case I remember, a domestic worker had photographs of her boss, a wealthy designer, walking around the house in the nude and engaged in highly illegal workplace behavior. Where is that case now? Wow, too bad this new law did not exist then. Now there is a solid law that protects against this kind of abuse.

Also, I think that domestic workers are more vulnerable to sexual harassment and abuse because they often work in close quarters with their employer. If problems develop, there is no one to turn to for help. There is no human resources department and before this law, there was no protection other than the criminal laws. This is a much needed new law.

The statistics show that more women than men are entering the workforce, except on Wall Street. Wall Street is still stuck in a male dominated culture such as that portrayed in Mad Men. I suspect that we could still find real life Don Draper's on Wall Street complete with the trophy wife at home in the suburbs and the secretary that sends out his dry cleaning.

It is probably easier for a woman to join the Army than to work on Wall Street. The military has changed it's culture, so why is Wall Street so behind the times? If you want to share your thoughts, please send me an email at robert@ottingerlaw and I will post some comments.

New York defines wages as "the earnings of an employee for labor or services rendered, regardless of whether the amount is determined on a time, piece, commission or other basis." This definition sounds wide open and surely seems to cover most bonus plans as bonuses are certainly "earnings for labor or services rendered." See section 191(1). But this language has been read to exclude certain "incentive compensation" that is paid as profit sharing or as earnings that are contingent on the financial performance of the business.

The courts in New York have held that a bonus will be deemed wages only if the bonus compensation is directly linked to the executive's own performance. However, if the bonus compensation is based on other factors such as the financial success of the business enterprise or based on other discretionary factors, then the bonus is "discretionary compensation" and therefore does not constitute wages under the Labor Code. See Truelove v. Northeast Capital & Advisory, Inc. 95 N.Y.2d 220 (2000). But this does not mean that the bonus claim is lost. This only means that the executive's bonus is not protected by the New York Labor Code. The executive may still have a solid legal claim to the unpaid bonus under a breach of contract theory.

Two UC Berkley professors just published their book, "Chips and Change" and they document Bureau of Labor and Census data for the semiconductor industry and found that salaries rose sharply for engineers in their 30s but that the increases slowed in their 40s and began dropping in their 50s and beyond. See the article in Techcrunch, "Silicon Vally's Dark Secret: It's All About Age."

The tech industry denies overtly shopping for young engineers. A Microsoft employee, for example, "acknowledged that the vast majority of new Microsoft employees are young, but said that this is so because older workers tend to go into more senior jobs and there are fewer of those positions to begin with. It was all about hiring the best and brightest, he said; age and nationality are not important."

Over the years, I have represented a number of older high tech workers in age discrimination cases. The cases are typically long and drawn out but in the end they mostly settled for decent numbers. Age discrimination is tough to prove and companies tend to defend them vigorously. Frankly, I do not understand why companies fight these cases so hard. I suppose it is because they have a lot to lose. We all know that age discrimination is an epidemic in the tech industry. Maybe in our next case we will call the two Berkley professors as experts witnesses. Their statistics could be useful.

I suspect that part of the problem is the computer employee exemption in the Fair Labor Standards Act. There is wide spread misunderstanding of this exemption. People seem to think that all computer related work is exempt from the overtime pay rules. The reality is that most all computer related work is not exempt - most all computer related work is subject to overtime pay and all of those help desk workers are entitled to overtime pay.

The computer employee exemption is narrow in scope. It only applies to higher level computer employees who design, create, program and engineer software or computer systems. The computer employee exemption, for example, would cover a network engineer who actually designs computer systems but it would not cover an employee who maintains computer systems. The computer employee exemption would cover an employee whose primary duty is to design and create computer programs. The normally day-to-day maintenance, installation and repair of computer systems and software is not covered by the computer employee exemption and that covers most computer works.

The Department of Labor issued a regulation which limits the reach of the computer employee exemption:

The exemption for employees in computer occupations does not
include employees engaged in the manufacture or repair of computer
hardware and related equipment. Employees whose work is highly
dependent upon, or facilitated by, the use of computers and computer
software programs (e.g., engineers, drafters and others skilled in
computer-aided design software), but who are not primarily engaged in
computer systems analysis and programming or other similarly skilled
computer-related occupations identified in Sec. 541.400(b), are also
not exempt computer professionals.

We have a number of cases pending against companies that do not pay their computer and technology employees overtime pay. Some of the companies just do not pay it. Others try to avoid the overtime issue by hiring so called "independent contractors" to do the computer work. True independent contractors are not entitled to overtime pay. But often the independent contract label is inaccurate and the workers are entitled to overtime pay.

The story did not mention sexual harassment claims but such a claim may follow. The conduct is so offensive that it is a crime, but does the conduct also amount to sexual harassment? This would not be a clear case, but it might arise to a sexually hostile work environment. To make such a claim, the conduct must be based on sex and it must be severe and pervasive.

The first question is whether this conduct is sexual or not. This begs the question, what is sex when it comes to sexual harassment? Putting semen into someones drinking water is disgusting, but is it sexual? It has a sexual connotation because it involves semen, but putting it in someones drink is not necessarily sexual. The answer is not clear. The conduct was not overtly sexual because the victim did not know she was drinking semen until the lab tests revealed its presence in the water. However, the man's actions violated the victim because he caused her to swallow his seamen against her will and that resembles rape which is sexual. In my view, this is sexual conduct because it involves a man putting his sexual fluid into a woman.

Second, the conduct at issue must be severe and pervasive. Here, the victim ingested semen twice. Is that enough to constitute severe and pervasive conduct? Normally, the offensive conduct has to be repeated frequently over time, but if the conduct is offensive enough, then the frequency requirement is reduced. Here, we have extremely offensive conduct but low frequency. Since the conduct is so outrageous and offensive, a finding that it was severe and pervasive is more likely.

Other legal hurdles exist in such a case. In many states and under federal law, the company might not be liable because it was not made aware of the conduct and once it learned of the conduct, it promptly terminated the offender.

The same German law also prohibits employers from secretly videotaping employees at work.

Germany is protecting its workforce from unreasonable privacy intrusions. America should do the same.

Why should we care what Germany does? One reason to care is that Germany is doing a better job managing its economy. It has put the recession behind it. See the article: Germany A Rare Model of Recovery in Global Recession.

Does anyone think there is a connection between treating people well and strong economic performance?

In America, by contrast, there are no limits on how an employer can use Facebook information. Countless people in America have been fired and not hired on account of their Facebook profiles. The American workforce, no doubt, also feels vulnerable and less protected. Is this good for our country?

Germany wants its workforce to feel comfortable but we don't care about that, we, as a country, are focused on chasing people through the caves of Afghanistan, tea parties and whether a mosque ought be near Ground Zero in New York City. We just don't get it.

Often, registered nurses are hired for these positions since their nursing experience is useful for interpretting medical data, but they do not provide "traditional" direct medical services to patients, render an opinion or make any medical diagnosis (which is prohibited by state law). Traditionally, registered nurses qualified for the “learned professional” exemption to FLSA overtime requirements under 29 C.F.R. § 541.301(a). According to the regulations, to qualify for the exemption, an employee’s primary duties must require consistent discretion and judgment. See id. § 541.301 (b). The regulations further state “[r]egistered nurses who are registered by the appropriate State examining board generally meet the duties requirements for the learned professional exemption.” See § 541.301(e)(2). The central inquiry in Ruggles is whether or not nurse case managers who are, for all intents and purposes, not using traditional nurse skills and training still qualify for the exemption. Certain Wage and Hour opinion letters suggest that registered nurses who are not expected to utilize "traditional" nursing skills and instead rely on company manuals to perform administrative services, or who do not need a nursing degree or license to qualify for employment, do not exercise independent judgment and do not qualify for the exemption. Our firm intends to file a complaint next week against one of the largest health care companies in the US seeking to certify a class of disability and medical case management nurses for overtime violations. According to our client, a social work degree and other non-nursing degrees are suitable qualifications for employment as disability or medical case manager. Also, our client was urged by her managers to perform case management services in states other than those she was licensed in as a nurse. If you are in a similar situation, call for a free screening. This appears to be the next big thing in overtime litigation - the big defense firms are already issuing scary "client alerts" to notify (i.e. frighten) potential management clients of the litigation timebomb that awaits them if they don't rapidly retain counsel and reform their policies. This is a telltale sign that a massive wave of litigation is on the horizon.

Idaho is like Vermont on crack. Everything here is richer, bigger, more beautiful and some is still the way it looked when Lewis and Clark ventured through. The people here are different also. Many do not own computers or watch TV. Instead of twittering or surfing the internet, they are out in the wilderness fishing, hunting, skiing, snow shoeing, snowmobiling or engaging in a dozen other outdoor activities. Pete does not tweet, but he knows how to hunt elk.

Pete explained how he hunts elk the other day and I thought that his approach was brilliant. I know absolutely nothing about elk or hunting, but I loved what I heard and thought that his approach to elk hunting demonstrates the keys to succeeding in just about anything in life, especially litigating.

First, Pete understands that elk rely on their sense of smell, not sight, to detect danger. Since smell is everything and odors are transported by wind, Pete always moves upwind and never downwind. Most elk hunters, apparently, do not realize how important this is and many blunder along letting their human orders give them away. Many hunters will never see an elk for this reason alone.

Second, Pete knows that there are only two times in a day to hunt elk, the evening and morning. This is because elk feed at night and in the morning and they are distracted then and easier to approach undetected. During the day, the elk herds bed down in the woods and they are impossible to sneak up on during this time.

Third, elk need three things: water, food and cover. Therefore elk like places that are near rivers or lakes, have lots of grass and shrub available and thick brush or forest to bed down in and hide during the day.

Finally, since elk are very wary creatures, the best time to hunt them is when they are mating and letting their sex drive overrun their better sense. According to Pete, elk have only one thing on their mind during mating season and they are much easier to locate and approach for a good shot. Apparently elk are also as stupid as humans when it comes to sex.

Pete understands the fundamentals and he scrupulously uses this information to guide his actions. Fist, he scouts out areas that are elk friendly such as valleys with a river or stream, a food source and thick brush and he looks for elk tracks. Once he finds a few elk friendly locations, he will go out during mating season, in the early morning or evening, and approach the locations upwind so the elk do not know he is present. By operating on these basic fundamentals, he is one of the most successful elk hunters in his region. Most elk hunters ignore at least one fundamental and that will prevent a successful hunt.

I have never hunted elk but, I have tried a lot of cases and have won most of them by the following the basics that I learned from an old master, William Hobbs of Los Angeles. Hobb was like Pete, he said you need to understand the fundamentals and let that guide you. In a trial, you need a story that is compelling, simple, and believable. You need credible witnesses and you cannot act like a jerk during the trial. Also, you must admit the bad facts right away and turn the warts into beauty marks if possible. Those are some of the fundamentals and if followed, your odds of winning are much higher.

Many lawyers make complicated arguments that seem far fetched and they try to conceal their bad facts and wind up getting caught and looking sleazy. Many lawyers also object a lot like the actors do on TV but they irritate the jury. In fact, I think I have won many trials only because my opponents broke the rules and I followed them. Some my clients did not deserve to win, but they won only because the other side had a lawyer who did not follow the basics. In my opinion, the ability to understand and follow the basic rules can set you apart from the competition.

As if on cue, my wife, who is also a lawyer and works for a low-tech government office which only allowed for external email four years ago, was issued a blackberry last week by her supervisor. Now she is one of many lawyers carrying two smart phones. My poor manners aside, there are virtually no social limitations on smart phone usage, including usage of smart phones for professional purposes.

Should you be paid for the time spent on your blackberry? Of course. Check out this NPR article on blackberry usage and overtime. Under the FLSA, time spent communicating with your employer or otherwise working on your crackberry is compensable. If you are a non-exempt employee who spends a tremedous amount of time on your blackberry and feels...well...instinctively undercompensated, you're probably right. Don't rest on your hunch, call for a free screening.

I have screened hundreds of overtime cases. In my practice, the following three categories of nonexempt employees under the FLSA are the most blackberry dependent, misclassified and undercompesated (i.e. abused):

1. IT employees, including help desk employees and systems engineers;
2. Pharmaceutical sales representatives;
3. Staffing recruiters (incredibly long hours and hard work - hats off to these employees - case law says you should be getting OT if you aren't involved in project management and post-recruitment supervision).

Smart phones are embedded in the culture. My 3 year old is adept with my iphone; she knows how to find the games she likes and will undoubtedly be asking for one before she is 10. Frightening. There's no turning back. However, you should not let your employer abuse the popularity of these phones by discounting the time you spend on them. Use your blackberry to call for a free screening.

Michael wrote a nice post recently about firing employees. He had been reading "The Aneid" by Virgil - one of those ancient Greek books that almost no one reads anymore. The lesson from Virgil that Michael shares in his blog post is that one should not be wimpy when firing employees.

In "The Aneid," the main character is wimpy about breaking up with a powerful woman he hooked up with in Carthage. Instead of dealing directly with the break up, he delays, misleads, and seeks counsel from others. The woman eventually figures out that he is planning on leaving her and things get ugly and this ultimately leads to a war and endless misery. Had the suitor been direct about his plans, then the war and misery all could have been avoided.

This type of wimpy conduct exists today in the workplace and the lesson from Virgil still apply. Be open and direct about your intentions and this will reduce problems. As an employment lawyer, I hear different versions of this story on a regular basis. Employees, like the jilted lover in Aenid, often are forced to endure uncertainty and humiliation because management does not have the guts to be open and direct. This wimpy conduct is pervasive and it breeds anger and ill will at work. So many people come to our law firm because their pride has been damaged and they want revenge for how they were treated.

In the suit, Kirleis accused Dickie McCamey of paying female lawyers less than males and alleged she was told by a male partner that a woman with children should relinquish her partnership and work only part-time.

Kirleis, who has worked at the firm since 1988, also claimed she was told by another male partner that the role of women lawyers was to prepare lawsuits for trials that would be handled by male lawyers. The suit also included allegations that Kirleis has suffered retaliation since her suit was filed, and that Dickie McCamey’s annual Christmas party is effectively closed to women “because of the sexually explicit nature of the entertainment including skits, songs, pornographic materials and props.”

The Court apparently was unmoved by fairly clear evidence of unequal treatment. It is known that female law partners earn about $66K less per year then male partners and Ms. Kireis was clearly facing different standards than men. Nonetheless the Court held that a law partner cannot sue her own law partnership because she is an owner and has some control over management and policies herself. This ruling looks like a cop out to me because it seems pretty clear that Ms. Kirleis did not have the ability to impact the firm's treatment of women - if she did she probably would have raised her pay and punished her bigot partners. She clearly did not have enough votes so she looked to the courts for help and got nothing. I hope she appeals this one to the USSC that now has more female members.

According to the Fact Sheet, a nursing mother has the following rights at work:

- she is entitled to reasonable break time to express milk for her nursing child for 1 year after the child's birth each time she has a need to express the milk.

- She is entitled to have a private location (bathrooms do not qualify) to express her milk.

- If employees are normally compensated for break time, then the mother would also be entitled to compensation for the time spent expressing her milk. Otherwise she is not entitled to compensation for this time.

There are limits on these rules. First, these rules only apply to non-exempt employees under the Fair Labor Standards Act. This would exclude managers, professionals such as doctors and lawyers, most people who earn over 100K per year, and any other exempt employee.

These rules do not apply to employers with less than 50 employees if compliance would impose an undue hardship.

Thanks to the Connecticut Employment Law Blog for its post on this subject today.

Today in the What About Clients blog (aka What About Paris?), the post is "Depositions: Quit wasting time and money." The point of this post obviously is that depositions are often a waste of resources. I could not agree more. Since we represent the economically distressed employee, we often limit our depositions and try to take short depositions or no deposition at all. The company lawyers, on the other hand, often take longer depositions.

In the What About Clients post, they ask "Why use deposition time to learn things you and yours can learn quickly and inexpensively and lash together from: Phone calls, live humans, your client, client employees, ex-girlfriends, ex-husbands, ex-bosses, bartenders, town drunks, libraries, American Legion halls, store clerks, hopeless gossips, old dudes in cafes who drool on their shirts, neighborhood urchins, newspaper reporters--and even the most rudimentary Google search?"

In law school, they don't teach you to go out and talk to old dudes in cafes or town drunks, instead they focus on the books. Upon graduation, lawyers (myself included) find ourselves in suits and fancy office buildings surrounded by people just like them. So instead of going out and digging around to learn the facts, they just take depositions in the antiseptic environment of a law firm conference room. Sadly, the real story rarely comes out. It is not a natural environment that lends to open communication.

The point is that we (as lawyers) could probably do a better job of finding the truth if we stepped out of our comfort zones and looked under the rocks for information. Depositions are rarely efficient and don't always elicit the whole truth.

How many of us have worked for one of these nut cases? I think we all have at some point and the experience is miserable.

At our law firm, we get calls almost every day from someone suffering a "Martha Stewart" like boss. These perfectionist bosses usually lack patience and often fire at will. Stunned and feeling abused, the fired employees look for answers from the law. So when the fired workers call us, they want to know about their employee rights. Bottom line is they want justice.

Sadly, it is not illegal to be a jerk at work. It is perfectly legal to be fired for an unfair reason or even no reason. But even though we cannot sue these rotten souls, they will not get away with it. Karma will get them (we hope).