Packing a Punch(tuation)

You’ve probably seen clever musings about the need for commas. “Let’s eat, Grandma!” versus “let’s eat Grandma” goes from joyful to dreadful, all for want of a lowly comma.

In O’Connor v. Oakhurst Dairy, the lowly comma brought down a giant. Maine’s overtime statute says that the employer doesn’t have to pay overtime for people whose jobs involve “the canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of: (1) agricultural produce; (2) meat and fish products; and (3) perishable foods” (emphasis added). In comes Mr. O’Connor, whose job involves driving a truck, i.e. distribution. When he didn’t get paid overtime, he sued. His legal argument, in so many words, was “I don’t do packing for shipment, nor do I do packing for distribution. I just do the distribution without doing any packing at all.” And the Court agreed.

How can your company avoid being brought low by punctuation? By having a good lawyer who can help make sure your company policies actually say what you think you mean them to say. And by making sure your company is reading the law as it should be read.


Remember those updates to the overtime pay threshold that we were all wringing our hands about? (It’s back here if you’d like to remember what you were supposed to remember). A few things have happened since then. One, a Texas judge issued a national injunction barring blocking the US Dept of Labor’s overtime rules from going in to effect. And two, Donald Trump will be president starting next week.  Even if the injunction ends up being lifted at some point? The pundits are betting dollars to donuts that a Trump US-DOL will rescind those rules.

Post “Independents” Day housekeeping

Last week was the Independence Day holiday.  We’re talking independents here.

As a small business, there is a temptation to want to call all of your workers “independent contractors” to avoid the hassle of the various payroll taxes and reporting that comes with having “employees” versus 1099 independent contractors.

However, both the state and (especially) the federal governments are cracking down on what has come to be known as “independent contractor misclassification.” The government cares because they’re losing out on taxes paid. Plus, if the worker gets sick or hurt, chances are pretty good that the worker will rely on Medicaid or the Social Security Disability program, rather than being covered by private medical insurance or worker’s compensation insurance. Besides the government that is there to help, plaintiff class action lawyers are trolling, too, and wage and hours issues are easy chum for them.

The IRS has a three-pronged program for ‘coming clean’ if you think you’ve been misclassifying workers as independents when, in all honesty, they’re probably really employees.

What is the “test” for whether a worker is an employee versus an independent contractor? You could read and interpret this, or you could call me, or you could interpret it yourself and find out you interpreted wrong, and still call me.


And the magic number is $47,476 per year

Go figure… I post on Monday that the US-DOL hadn’t yet issued the overtime rule updates, and bam! out pops the rule on Tuesday.

The magic threshold is $47,476 per year, and that amount automatically indexes once every three years.

The Dept of Labor blithely posits that

If you need more than a simplistic meme to guide you, you might want to jump on one of the DOL’s free webinars on 5/26, 6/2 or 6/9 (or on 6/7 for non-profits), click here to register.

From Salaried, back to Hourly? New US-DOL Overtime rules

The US Dept of Labor’s long-anticipated changes to the overtime pay threshold still haven’t come out (could be anywhere from $47-50k, up from the current $23k). But, either way, you probably have a sizeable handful of currently salaried employees who will go back to be handled as hourly paid. Which can seem like a kick in the ego to many.
But, if you’re being honest with yourself and your workers, especially those currently paid closer to $23k than $47k, perhaps this seismic change will give you both a chance to assess some work/life balance issues. If that random thought that pops in to your head at 11pm really demands a reply at 11:10pm, then be prepared to pay your worker for that response. Otherwise, go ahead and still send that email (so you don’t forget), but then go to bed and rest assured that it will be addressed in the morning when the work day begins.
The Society for Human Resource Management has a great article highlighting some ways to put a positive spin on this admittedly difficult topic.