Virginia Employment and Family Law Office

Virginia Employment and Family Law Office Thomas F. Hennessy Columbia University, BA, History, 1983 and Vanderbilt University, JD, 1988 is a


great article in the Washington Post about a case our firm is involved in.

Can We Finally Treat Food Workers Fairly?
Can We Finally Treat Food Workers Fairly?

Can We Finally Treat Food Workers Fairly?

If you run a business that’s dependent on labor at the poverty level, it isn’t a viable business, from either a moral or practical point of view.

Timeline Photos

Timeline Photos

Why is the United States so behind?

Sign our petition to act now and :


DOL sends proposal to narrow overtime exemptions to the White House

Littler Mendelson
Tammy D. McCutchen.

USA May 6 2015

In March 2014, President Obama ordered the U.S. Department of Labor to revise the “white collar” overtime exemption regulations. Declaring "Americans have spent too long working more and getting less in return," the President ordered the revision of the overtime exemption regulations with a goal of making millions more workers eligible for overtime pay. On May 5, 2015, Secretary of Labor Perez announced that the DOL has submitted the proposed changes to the overtime regulations to the White House’s Office of Management and Budget (OMB) for approval.

In his blog post, Secretary Perez stated:

The rules governing who is eligible for overtime have eroded over the years. As a result, millions of salaried workers have been left without the guarantee of time and a half pay for the extra hours they spend on the job and away from their families.

We’ve worked diligently over the last year to develop a proposed rule that answers the president’s directive and captures input from a diverse range of stakeholders. After extensive research, study and careful analysis, we have submitted the proposed rule to the Office of Management and Budget for review. In the near future, the public will have an opportunity to weigh in and help us craft a final rule.

The public will not have access to the proposed changes during OMB’s review, which could take as few as two weeks, or as long as several months. Although the DOL officially sent the proposed regulations to OMB on May 5, most likely and based on my own experience revising these regulations while serving at the DOL in 2003-2004, the DOL and OMB have been talking and exchanging drafts for months on an informal basis. Thus, OMB will not be surprised by anything they see and likely has already approved all major changes to the overtime regulations. Thus, a quick review by OMB is possible.

Although we can only speculate regarding the changes that the DOL will propose, one change is certain: the agency will propose an increase in the minimum salary level required for exemption from the FLSA overtime requirements. Currently, the threshold is $455 per week ($23,660 annually), which was set in 2004. Prior to the 2004 increase, the minimum salary levels, set in 1975, were $155 per week with a “long” duties test and $250 per week for a “short” duties test. Prior to 1975, the DOL had increased the salary threshold every five to ten years.

It has now been over a decade since the last salary level increase and we are due for a change. However, the question is how big the increase will be. The inside-the-beltway rumor is that the DOL was set to propose $42,000, but is getting pressure to go higher. According to the union-funded Economic Policy Institute, a $42,000 salary level would make an estimated 3.5 million additional employees eligible for overtime – or about 35% of salaried employees. EPI has advocated a minimum salary of over $51,000 – which adjusts for inflation from the 1975 short-test salary level of $250 per week – and would cover an additional 6.1 million employees or about 47% of salaried employees. But 30 congressional Democrats sent a letter to Secretary Perez calling for a salary level of $69,000, allegedly to cover the same percentage (65%) of salaried employees entitled to overtime in 1975. At $69,000, an estimated additional 10.4 million employees will be newly entitled to overtime pay.

EPI and other employee advocates suggest an increase based on inflation from the 1975 “short test” level of $250 per week, assuming without justification that in 1975, the DOL set the “short test” salary level perfectly. But the actual minimum salary threshold in 1975 was the $155 per week “long test” level. Correcting $155 for inflation would result in a new salary level of $31,720 annually – a level much more likely to be tolerated by the business community.

While we do not know much about how the DOL will propose to change the duties tests, the primary focus appears to be the executive exemption. In particular, we expect the DOL to narrow the exemption for retail and restaurant managers and assistant managers in two ways. First, we expect the agency to propose a California-style rule that exempt employees must spend more than 50% of their time performing exempt work. Currently, under the FLSA primary duties test, time is an important factor but not dispositive, as primary duty is determined by looking at the job as a whole to identify an employee’s most important duty. Employees who spend less than 50% of their time performing exempt work can still qualify for the exemption if other factors indicate an exempt primary duty. Second, the DOL may eliminate the concept of “concurrent duties” – or when an exempt manager or assistant manager continues to perform exempt management duties even while performing non-exempt work such as running a cash register or stocking shelves.

Timeline Photos

Timeline Photos

Timeline Photos

Timeline Photos

The glory that awaits workers from laws.

Picking Up the Tab for Low Wages
Picking Up the Tab for Low Wages

Picking Up the Tab for Low Wages

A business model based on inadequate pay has essentially turned public aid into corporate welfare.


US Senate Cook Says Federal Contractor Pays So Little He's on Food Stamps


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Shouldn't food workers in the US Senate be paid livable wages? (Photo: Stephen Melkisethian)

To paraphrase thoughts of a venture capitalist in a BBC series I was watching last night, if you're riding in a chariot and a few peasants get crushed under the wheels, it's for the overall good. The UK master of the universe - a Brit version of Mitt Romney – argued (like proponents of neoliberalism in the US) that all ships will rise as he creates a more "robust" economy. Of course, the dead peasants won't enjoy that fantasy economy. In addition, all the economic data in the US and UK indicate that the consolidation of wealth doesn't lift all ships: it raises only a few up to the stratosphere, while the tiny boats of the majority of people sink to the lowest tide.

The television film was Turks & Caicos, the second in a brilliant three-part spy thriller about the political takedown of a morally bankrupt and financially incentivized British prime minister clearly based on Tony Blair and his deference to the indefensible Bush administration post 9/11 policies.

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The resonance of Turks & Caicos on the moral and political corruption of neoliberal economic policy carried over to this morning when I read an article in The Guardian. Written by a cook in the US Senate, Bertrand Olotara, the personal commentary describes the plight of a single father who had to go on food stamps to ensure that his children receive adequate nutrition:

I'm a single father and I only make $12 an hour; I had to take a second job at a grocery store to make ends meet. But even though I work seven days a week – putting in 70 hours between my two jobs – I can't manage to pay the rent, buy school supplies for my kids or even put food on the table. I hate to admit it, but I have to use food stamps so that my kids don't go to bed hungry.

I've done everything that politicians say you need to do to get ahead and stay ahead: I work hard and play by the rules; I even graduated from college and worked as a substitute teacher for 5 years. But I got laid-off and I now I'm stuck trying to make ends meet with dead-end service jobs.

No, Olotara's life raft isn't rising higher as the financial titans and Walmart heirs horde an extraordinary percentage of the nation's cash. (As noted in a BuzzFlash commentary earlier this week, the Walmart offspring of founder Sam Walton alone have as much wealth as 40% of the US population.)

Olotara describes himself as a "Bible-believing Christian," and wonders how politicians who claim the mantle of Christianity show so little compassion to individuals such as him and his children. After all, he's a cook for the very US senators who pass the federal laws regarding minimum wage and requirements for federal contractors that could include a livable wage provision.

One of the ironies is that in the global economy heralded by neoliberal financial advocates, Olotara's employer - remember that he works in the US Senate - is a UK international food service and contracted services company:

My employer, Compass Group, is renewing its contract with the US government today – but none of the senators or government officials to whom we serve food asked me or my co-workers whether this multinational corporation, headquartered in the United Kingdom, is treating American workers right. No-one bothered to check if the company that makes billions in profits is paying workers a living wage and offering decent benefits so we don't have to use public aid programs to meet our basic needs. We the workers sure have an opinion when it comes to federal contract renewals – but no one cared enough to ask us.

Last year Compass Group reported more than 17 billion UK pounds (over 25 billion US dollars) in revenue, according to its website.

Olotara is joining other contracted Senate works and federal employees in a one-day strike today, April 23. Roll Call describes the job protest:

Contract workers in the U.S. Senate will walk off their jobs Wednesday to join contractors from across the District of Columbia in a strike calling for preference to be given to contractors who offer better wages, benefits and collective bargaining rights.

The Senate janitors and food service workers will join workers from the Capitol Visitor Center, the Pentagon, Union Station, the National Zoo and Smithsonian Institution at the rally on the West Front of the Capitol Wednesday morning.

In November, workers from the Capitol Visitor Center joined the protest, marking the first time contract workers in the Capitol walked off their jobs as part of the movement. Wednesday is the first time Senate workers will join the strike.

The workers who are employed by private contractors to perform services in public buildings, including the US Senate, are seeking livable wages, benefits, and the right to collectively bargain.

Those appear to be requests that could be granted in a flush economy for the rich. After all, aren't all ships supposed to rise as the wealthy become wealthier, according to neoliberal shills?

However, Congress won't even toss Bertrand Olotara and his economically exploited colleagues a life jacket.

Not to be reposted without the permission of Truthout


New York’s attorney general scrutinizes 13 big retailers, including Target and Gap, over their staffing practices



New York’s attorney general is scrutinizing 13 big retailers over their staffing practices and whether they require workers to show up or stay home with little notice.

The office of New York Attorney General Eric Schneiderman sent letters warning Target Corp. TGT, -0.03% , Gap Inc. GAP, +3.99% and 11 others that it believes the chains are using on-call scheduling and that such practices may violate a New York law.

On-call scheduling systems have made big retailers more nimble, allowing them to staff stores during busy times and save on payroll during slow days. The software used by many retailers forecasts staffing needs based on real-time sales and traffic information.

Some employers require on-call workers to check in by phone, email or text shortly before their shift, Mr. Schneiderman’s office said.

If the store is expected to be busy, they must come in; if things are slow, they are told not to report for work and aren’t paid. These systems have been criticized by worker advocates, who say on-call scheduling makes workers’ lives and pay unpredictable.

In addition to Target and Gap, the retailers that received the letters are Abercrombie & Fitch Co. ANF, -2.01% ; Ann Inc. ANN, -1.57% ; Burlington Stores Inc. BURL, -0.96% ; Crocs Inc. CROX, -0.48% ; J.C. Penney Co. JCP, -3.40% ; J. Crew Group Inc.; L Brands Inc. LB, -0.47% ; Sears Holdings Corp. SHLD, -1.02% ; TJX Cos. TJX, -0.70% ; Urban Outfitters Inc. URBN, +0.19% ; and Williams-Sonoma Inc. WSM, -0.87%

Target said it posts worker schedules 10 days before the start of a work week, which employees can check remotely. A spokeswoman said its scheduling methods don’t include “on-call” shifts where employees would be required to call in to see if they are working a given day.

Suzanne Kapner contributed to this article.

An expanded version of this report appears on

Happy belated birthday to Frances Perkins (April 10, 1880 - May 14, 1965) first woman member of the cabinet (FDR) Secret...

Happy belated birthday to Frances Perkins (April 10, 1880 - May 14, 1965) first woman member of the cabinet (FDR) Secretary of Labor under FDR fought to establish the minimum wage, Overtime Pay and the 40 hour workweek. A true hero for American Workers.


February 27, 2015 · 9:44 am
11th Cir.: Employer That Knew or Had Reason to Know Employee Underreported Hours Could Not Assert Equitable Defenses Based on Employee’s Conduct in Underreporting Hours

Bailey v. TitleMax of Georgia, Inc.

This case was before the Eleventh Circuit on the plaintiff’s appeal of an order from the trial court granting the defendant-employer summary judgment. Specifically, the court below held that the plaintiff-employee was barred by equitable doctrines from maintaining his claims under the FLSA, because he had underreported his hours, notwithstanding the defendant’s knowledge of the actual hours worked. Reversing the trial court’s order, the Eleventh Circuit held that “[w]here, as here, an employer knew or had reason to know that its employee underreported his hours, it cannot invoke equitable defenses based on that underreporting to bar the employee’s FLSA claim.”

The court described the relevant facts and procedural history below as follows:


McMaster v. Eastern Armored Services Inc.

In the first such case to reach an appellate court, the Third Circuit has held that an armored car driver who split her time between driving “covered” commercial motor vehicles (those over 10,000 lbs) and non-covered (those under 10,000 lbs) is non-exempt pursuant to the Technical Corrections Act (TCA), which modified the Motor Carrier Act exemption applicable to some interstate truck drivers.

Some Federal Workers Claim They Were Shorted On Pay
Some Federal Workers Claim They Were Shorted On Pay

Some Federal Workers Claim They Were Shorted On Pay

WASHINGTON -- A group of D.C. workers employed under federal contracts filed a complaint with the Labor Department on Wednesday alleging that they've been illega...


WARNING: Do not let Mc Donald's minimum pay raise fool you. The minimum per hour pay raise applies only to Mc Donalds' owned restaurants. Franchises are exempt. Since 90% of the Mc Donalds are franchises this action is not likely to raise pay for most Mc Donalds' workers.



HARTFORD — Connecticut gained widespread attention in recent years as a national leader in Democratic circles by increasing the minimum wage and passing a first-in-the-nation statewide mandate for paid sick days for some service employees..

Business lobbyists battled against those measures as job-killers, while liberal lawmakers hailed Connecticut as a progressive leader for workers.

Now, union members are trying to take a third step with another first-in-the-nation bill that would place fines on large employers with more than 500 workers who fail to pay wages of at least $15 per hour. The fine would be $1 per hour per employee and could raise as much as $305 million for the state in the 2017 fiscal year that could then be used for child care and for home care for the elderly.

Mary Kay Henry, the international president of the two million member Service Employees International Union, traveled to Hartford recently as the legislature's human services committee passed the bill on to be considered by the full legislature, on a party line 11-7 vote. She views the committee vote as starting momentum across the country.

"We think it will send a message to the Oregon state legislature and the Colorado state legislature, where this bill is being introduced as well,'' Henry told The Courant in an interview. "We're hoping if these three states can begin to create momentum, then we can begin to do it in other states as well – because we've been unsuccessful at the federal level in getting Congress to address'' the issue.

"I wanted to shine a light on the Connecticut state legislature and the committee that passed the bill,'' Henry said. "We see this as a way to hold low-wage employers accountable.''

Well-known retailers and major fast-food restaurants — including Wal-Mart, McDonald's, Dunkin' Donuts, Wendy's and Burger King — should raise their wages to at least $15 per hour, Henry said. She strongly rejects arguments that the bill would boomerang and hurt business.

"This business myth that raising standards for working people somehow costs jobs is baloney,'' Henry said. "In Connecticut, Seattle, and San Francisco, when they raised the minimum wage, it encouraged business growth.''

CBIA Leads Battle

But some of the state's best-known pro-business groups are working to block the legislation. Representatives of the 10,000-member Connecticut Business and Industry Association, the National Federation of Independent Business and the conservative-leaning Yankee Institute for Public Policy all testified recently against the bill. A similar bill was passed by the legislature's labor committee last year, but it failed to pass the full legislature after business lobbyists fought against it.

Among unions, the measure is known as "the revenue bill.'' Among opponents, it is known as "the Wal-Mart tax.''

A similar bill failed in the past when the Democrats had a larger majority in the House of Representatives. Now that the Republicans have picked up 10 House seats in the 2014 election, Republicans and business lobbyists are hoping to block it again.

c Comments

"This business myth that raising standards for working people somehow costs jobs is baloney,'' Henry said. "In Connecticut, Seattle, and San Francisco, when they raised the minimum wage, it encouraged business growth.'' Please explain the market mechanism that...


at 1:12 PM April 05, 2015

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Even among unions, there is not unanimous support. Thomas A. Wilkinson, president of Local 371 of the United Food and Commercial Workers union in Westport, said that he has some concerns about how the bill would affect major employers like Stop & Shop, ShopRite Supermarkets and A & P. He is not actively lobbying against the bill in the halls of the Capitol, but he said he sent a letter to legislators expressing his views.

"From the private sector, we certainly do have concerns,'' Wilkinson said, adding that other union members are "in it for the right reasons — but not at my members' expense.''

While the union sometimes clashes with the supermarkets on various issues, Wilkinson said his members have a solid package of benefits.

"They still get a defined-benefit pension plan,'' Wilkinson said. "They get health care. Dental. Optical. Disability. Life insurance. On top of that, they have representation. They have a union that cares about them. I understand the intentions of the bill, but my employers would be penalized.''

Wilkinson said in a letter to legislators that the three supermarket chains would suffer from "less profitability, increased prices and an adverse impact on future and present contract negotiations" if the bill is passed.

He added, "I applaud my brothers and sisters in like-minded organizations. We just have a slight disagreement here.''

Fears Of A Backfire

Eric Gjede, an attorney and lobbyist for CBIA, said this year's bill will backfire and hurt the business climate in the state.

"It adds credibility to the nationwide belief, as demonstrated in a variety of recent surveys, that Connecticut is a bad place to do business,'' Gjede told the committee in written testimony. "Businesses across the country look at legislation like this and make the choice to grow their business elsewhere. The result is lost job opportunities for Connecticut citizens and the loss of good corporate citizens that give back to their local communities.''

The National Federation of Independent Business, which represents small businesses, issued a statement that "Connecticut's already tarnished reputation as a place to own, operate and grow a business is certainly not helped by the burdens and the stigmas that will be imposed by this bill.''

Suzanne Bates, the policy director of the Yankee Institute, said, "It is a worthy goal to bring high-paying jobs to Connecticut, but with every mandate, fine, fee and regulation, this state is pushing out jobs for lower-income workers. While on the face, these laws seem pro-worker, in actuality they are pushing companies out of the state or toward automation.''

Despite opposition from businesses, the union members are pushing hard against companies like Wal-Mart, one of the employers that they have criticized the most. They are also blasting the fast-food chains that roll up large profits.

The union members are most concerned that the workers' wages are low enough that they qualify for food stamps, health care, and housing subsidies. As such, the union members say that the state is subsidizing large, highly profitable corporations as much as $6 billion nationally in the fast-food industry.

In Connecticut, a study by the legislature's nonpartisan research office showed that, in 2005, that the state was paying an estimated $43 million annually for health insurance to cover workers at 25 major employers, including Wal-Mart, Dunkin' Donuts, Stop N Shop, and McDonald's. The report showed that more than 1,000 Wal-Mart employees qualified for the state's HUSKY health program for low-income workers.

Subsidizing Wal-Mart?

"A lot of people don't know that this is taking place — that we're subsidizing the profits of Wal-Mart,'' said David Pickus, president of the District 1199 union. "They've lived this way as if this is the way things are. It's an amazing sense of corporate welfare.''

He added, "In fast-food, we're spending $6 billion in this country to subsidize these clowns.''

But Sen. Joseph Markley, a Southington Republican who voted against the bill, said the measure is one of the most anti-business bills he has seen.

"I think you would be hard-pressed to find something more discouraging to businesses looking to locate in Connecticut,'' Markley said. "This is just a search for corporations to punish, and it would be raising a flag that would say: 'if you're a business, please stay away.'"

While union members tout paid sick leave and the minimum wage, Markley said he disagrees with their "real pride to be the first in the nation to do this.'' He said that other states should step forward to test the idea.

"It's a very dangerous bill,'' Markley said. "We've got 50 states. I'm not looking to be the first one to try out every idea that the left comes up with.''

But Henry says the bill would "level the playing field between employers that are ready to pay a living wage, provide health care and paid time off with employers that think the American taxpayers should subside their low wages."

Obama Says Workers Are Being 'Cheated' Out Of Overtime Pay
Obama Says Workers Are Being 'Cheated' Out Of Overtime Pay

Obama Says Workers Are Being 'Cheated' Out Of Overtime Pay

WASHINGTON -- President Barack Obama said his administration would soon release details of a highly anticipated reform to the nation's overtime rules, telling The Huffington Post on Friday that many Americans were being "cheated" out of tim...


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