Mistake Of The Month - Not So Much A Mistake As A Very Unpleasant Surprise To This Employer, Although The Final Chapter Has Yet To Be Written
Do sick leave buyback payments made to employees have to be included in the employees’ “regular rate” of pay for overtime purposes under the Fair Labor Standards Act (“FLSA”)? According to the U.S. District Court for the Western District of Missouri, the answer is “yes,” but that is not necessarily etched in stone.

The Harshbarger Report

Develop High Integrity Leadership Practices
What people say certainly helps determine the norms of an organization, but what they do has an even more profound effect.

Court Holds Sarbanes-Oxley Act Does Not Apply To Foreign Nationals
The Court found that nothing in the Sarbanes-Oxley Act “remotely suggests that Congress intended it to apply outside of the United States.”

Sarbanes-Oxley Whistle-Blower Claim Survives Summary Judgment
A fourteen day time frame between Plaintiff’s complaints and her termination was sufficient to get to trial.

ON THE SUPREME COURT DOCKET

As of this writing, there are three employment or employment-related cases pending at the United State Supreme Court.

OTHER EMPLOYMENT LAW HEADLINES

“Business Necessity” Defense To An ADA Claim May Include Safety Concerns
Much confusion between two Americans with Disabilities Act defenses, the “business necessity” defense, and the “direct threat” defense.

Employee “Regarded As” Disabled Entitled To Reasonable Accommodation
Employees who are "regarded as" disabled are entitled to reasonable accommodation in the same way as are those who are actually disabled, according to the 3rd Circuit. Circuits are split.

“Off The Record” Conversation Leads To Summary Judgment Denial
Be careful of those “between you and me” conversations with employees.

Too Much Time Destroys Causal Connection In Retaliation Case
Three to nine years was way too long.

A Negative Reference Was An “Adverse Employment Action”
10th Circuit holds that an employer’s negative reference could establish an adverse employment action even if the employee could not prove that he or she would have received the prospective job. Circuits are split.

Legislative/Regulatory Actions Of Note

New Overtime Regulation Website
A new interactive website designed to assist employers and employees with understanding the newly-effective revisions to the so-called White Collar overtime regulations, at www.dol.gov/elaws/overtime.htm.

No More H-1B Visas For FY 2005
Limit reached before Fiscal Year even begins.

EEOC Reaches Out To Teenage Employees
New initiative and website designed to educate and inform teenage employees about their rights and responsibilities in the workplace, at http://youth.eeoc.gov.

FLSA/FMLA Cases

DOL “Clarifies” FMLA Recertifications
We haven’t heard the last of this issue yet.

On The Employee Benefits Front

ERISA Section 510 Completely Preempts State Law Claims
Court ruled that Section 510 (barring adverse employment action to deprive a participant of a right under an ERISA plan) completely preempts state law case based on claims that the defendants acted to get him fired before he could file a disability claim.

Get An Independent Evaluation For A Denial Of Benefits “Close Call”
In a so-called “conflict of interest” case, where the insurer and the plan administrator are the same entity, the standard of review is stiff, so getting an independent evaluation for a benefits denial may be the better part of valor.


State Law Claims Not Preempted By ERISA
A state law claim of misrepresentation based on a promise to provide medical insurance was not preempted by ERISA.

On The Public Sector Front

Public Sector “Volunteers” Could Be Entitled To Overtime
While this is not new law, it does come up frequently in schools and is worth revisiting.

Tort Claims Act Bars Claim Against City For Teacher’s Alleged Negligence
Teacher did not “originally cause” one student to punch another, so the City had immunity under the Massachusetts Tort Claims Act.

On The Labor Front

Hospital Had To Provide Incident Reports To Union
Though at least patient names could be redacted.

No-Solicitation/No-Distribution Rule Upheld By Board
Rule was not disparately applied, and 1-2 day notice requirement was not unlawful.

Successor Employer Not On Hook For Accrued Sick Leave, But...
Somebody apparently got some good advice on how to draft an asset sale agreement, and then some bad advice on what to do next.

Court Vacates Subcontracting Arbitration Award
Plain language of contract trumps arbitrator’s reliance on commentary of other arbitrators.

Did You Know . . . ?

The Molecule of the Month is Butane (C4H10), a colorless, flammable hydrocarbon that is present in natural gas and can be obtained when petroleum is refined. Butane is a gaseous alkane. It is extremely stable, has no corrosive action to metal, slightly soluble in water and readily soluble in alcohol, ether and chloroform.

That October’s flower is the Calendula (which stands for grief or jealousy), and its birthstone is the opal?

That October is, among other things, Computer Safety Month, Health Literacy Month, Breast Cancer Awareness Month, National Pet Wellness Month, Family History Month, Virginia Wine Month, Fire Prevention Month, Earth Day & Energy Awareness Month, Window Covering Safety Month, Michigan Car-Deer Crash Safety Awareness Month, National Energy Awareness Month, Texas Music Month, Parent Involvement Month, National Arts & Humanities Month, Marathon Month, Crime Prevention Month, and National Statistics Month - as well as being the end of a long wait for Red Sox fans?