July 12, 2012

"Basically, if she wins, then every single junior office worker in law or finance should be able to sue their employers."

"Which makes me think she’s not going to win."

ADDED: But if she wins... maybe women will be able to have it all.

38 comments:

TWM said...

The only reason I can think is one that was noted - law firms would have to start paying overtime to any number of employees. No way any judge who will end up as a partner in a private firm is going to let that happen.

Chip S. said...

Go ahead and laugh, Althouse.

We'll see if you're still laughing when I sue you for making me chronically late for work.

Joe said...

She has a point and her former managers sound like a bunch of jerks (I've worked for more than one company like this), but she also had the option to quit and apparently should have.

The definition of salaried employees is an absurdity and should be done away with in favor of letting an person freely enter into whatever pay arrangement suits them and their employer best.

TWM said...

I meant to say the only reason I can think she wouldn't win in this weird employment world . . .

wyo sis said...

I would be surprised if this doesn't succeed. The endless litigation it will open up will be difficult for the legal community to resist.

David said...

When I started as a young lawyer decades ago the secretaries were salaried. No overtime, and they often worked late. That changed pretty soon thereafter, not because of any legal action, but because we were losing good secretaries to companies (not other law firms) who didn't work them the extra hours.

Most of these women--they were all women then--were fabulously good at what they did. They were smart, diligent and generally pleasant to work with. How lucky we were.

PatHMV said...

Many companies have routinely abused the various "exempt" exceptions to FLSA. Whether it should be the law or not, FLSA is the law of the land currently, and should be obeyed.

Here's a checklist that summarizes the FLSA requirements for the various exemptions:

http://www.shrm.org/TemplatesTools/Samples/HRForms/Articles/Pages/CMS_009647.aspx

From the horror stories I've read of the life of working in "Big Law," perhaps the "junior office workers" in those fields ARE protected by FLSA. Is the kind of accountant this woman is any different, really, from a Walmart clerk, who is protected by FLSA? Does she truly exercise substantially more independent judgment and discretion than the store clerk?

I don't know the answer to these questions, but I don't find the ATL post at all convincing that the case filed by the employee is ridiculous or laughable.

Mike Chuck said...

There is almost no way the Republican party doesn't take the senate back. The only question is how many seats can they take. So if you're not worried about control of the senate maybe you should worry more about the small government credentials of your candidate instead of the party of your candidate.

Mike Chuck said...

oops wrong post. sorry

Mark O said...

Harrison Bergeron, JD

edutcher said...

She'll never have it all.

EDH said...

Anne Marie Slaughter makes a good point.

I'd really like that high-powered government "dream job" too as Director of Policy Planning (offered by Hillary Clinton, natch), except for the boss and the deadlines and all that actual work crap.

leslyn said...

But if she wins... maybe women will be able to have it all.

Cartoon: (I can't like it, so you'll just have to imagine it.)

Women have come a long way in the work world (woman in a business suit carrying a brief case).

More and more women are becoming professionals: lawyers, doctors, judges (woman in a doctors coat and stethoscope).

Women can make their own money (woman coming home in business suit, carrying brief case).

LAST PICTURE: a man in sunglasses and swim trunks, lying on the beach, listening to radio, smile on his face:

Caption: "Men win again."

BarryD said...

"I don't know the answer to these questions, but I don't find the ATL post at all convincing that the case filed by the employee is ridiculous or laughable."

Ditto.

A skilled machinist tends to make a good deal more than $23,600/year, and has to make decisions that require a high level of knowledge and good judgment, much like an internal accountant does.

Would anyone think that a skilled machinist is an exempt employee under FLSA?

Why, exactly, does "working in an office" change that? That appears to be the crux of Elie's argument, and I'm not convinced.

(As PatHMV said, this is separate from an argument about the FLSA itself, though I expect a number of commenters to miss that point completely, and probably call me a statist pig or something.)

BarryD said...

Addendum: also, I don't think that getting overtime compensation according the standards of the FLSA is "having it all", nor wanting to be paid according to the law is wanting to "have it all", whether the plaintiff is male or female.

Comanche Voter said...

Mommeeeee! They actually asked me to work hard? Can you imagine the crust of that?

Well Mommy can't kiss it and make it well. We've got entire generations who have not yet figured out that Life's a Bitch And Then You Die.

If you don't want to do the work, then find another job.

Dust Bunny Queen said...

It is my understanding, having been a salaried employee (commercial lending officer ) and an independent contractor as a financial advisor at another firm, that as long as the job didn't specify specific hours, number of hours that you must work or state an hourly wage you are exempt.

The employer can give you tasks and deadlines for completion of those tasks but how, when and where you do it is up to you.

I had a 'case load' of loans to process. Sometimes I worked from home, sometimes in the office. Often I would work more than 40 hours some weeks or 10 to 12 hours days. Other times I went home early or just took off some time and had my calls sent to my voice mail.

As long as you get the work done, the employer should be happy.

In her case it sounds like either:

1. The work was too hard and she couldn't keep up due to incompetence.

OR.

2. The employer kept adding to the case load to the point that the employee was overloaded and was compelled to work unreasonably longer hours than would be justified in a salaried position. In other words the employer was trying to get more work at a lesser cost --no overtime.

You would probably need to compare to an average hourly employee's typical work load assigned by the employer to the work load expected by the employer of the salaried employee. If there is a HUGE discrepancy, then I think she has a case. If not, then she just couldn't hack it.

kimsch said...

I had mentioned to my almost 18-year-old son earlier this year that he apply at our local amusement park for a summer job (he did, wasn't hired). He said a friend of his had worked there last year and didn't like it. I said perhaps it was because his friend, having been hired, was expected to actually *work* - and for the hours scheduled - to get the money in return. Working at the amusement park isn't walking around riding rides all day like a customer.

BarryD said...

"as long as the job didn't specify specific hours, number of hours that you must work or state an hourly wage you are exempt"

Those are not the legal criteria, and "exempt" is a legally-defined status, so the legal criteria do count for something.

BarryD said...

"He said a friend of his had worked there last year and didn't like it. I said perhaps it was because his friend, having been hired, was expected to actually *work* - and for the hours scheduled - to get the money in return."

WORK and FOR THE HOURS SCHEDULED

Had he been on salary, and fired because he wouldn't work for twice the hours he was ostensibly being paid to work, he would have had a lawsuit. And he would have won that lawsuit. 99.9% chance it wouldn't have even gone to court, and he'd have been paid a great deal to shut up and keep it out of the papers, too, to avoid bad PR for the amusement park.

Big difference. :)

Michelle Dulak Thomson said...

BarryD,

Had he been on salary, and fired because he wouldn't work for twice the hours he was ostensibly being paid to work, he would have had a lawsuit. And he would have won that lawsuit. 99.9% chance it wouldn't have even gone to court, and he'd have been paid a great deal to shut up and keep it out of the papers, too, to avoid bad PR for the amusement park.

Salaried jobs do not have fixed working hours, even "ostensible" ones. That's the whole point.

kimsch said...

Barry,

I'm talking about a teenager who thinks "work" is too hard. Any work.

This woman is a senior accountant.

Supposedly she has some kind of degree.

I was doing that type of work without a degree. I found ways to make my work easier.

Rich said...

I think the glib assertion her grievance is that her "job is too hard" misses the mark. Her complaint also alleges:

"Defendant maintained a hostile work environment that included verbal abuse, assault, and massive amounts of work heaped on Ms. Armstrong...."

And it alleges ADA problems as well:

"Ms. Armstrong specifically
requested accommodations and a relief in the stress and pressure that were placed on her since her cardiologist advised her that such stress and pressure could cause
permanent damage to her heart. However, Defendant failed to make any accommodations to the significant physical symptoms Ms. Armstrong was experiencing as a direct and proximate result of Defendant's work environment and
the demands and pressure it placed on Ms. Armstrong."

Assuming she can prove these things, verbal abuse, assault and failure to accommodate a disability would make for a viable lawsuit.

BarryD said...

"Salaried jobs do not have fixed working hours, even "ostensible" ones. That's the whole point."

No shit. And the HOURLY job cited in the post I responded to is not a salaried job, and cannot legally be made into one.

"I'm talking about a teenager who thinks "work" is too hard. Any work."

That's nice, but irrelevant.

Did anyone actually follow the link and READ about the case in question? Otherwise, why comment on it? Just looking for an excuse to post something, relevant or not?

BarryD said...

And BTW the linked post at ABL has a misleading headline.

Apart from the allegations of abuse, the claim is that the job does not meet the legal requirements for an exempt position.

Whatever the court finds, or a settlement looks like, this is not the same as "suing because the job is too hard."

cubanbob said...

I'm sure Barry D will be happy when the actual outcome is further offshoring to India.

Shorter version: deadlines cause stress, jobs that have deadlines cause stress. Stress can result in illness so therefore its an ADA covered situation. ADA requires employer's to accommodate. Employers accommodate by removing the stress of the deadline requirements by eliminating the position where it would be covered by the ADA until such time the ADA applies to India.

In practical terms. the insurance company will settle on behalf of the employer and if she resigns as part of the settlement she can be assured that no one will ever hire her again. Probably the settlement will be big enough to get her to go away and never come back again.

leslyn said...
This comment has been removed by the author.
BarryD said...

"I'm sure Barry D will be happy when the actual outcome is further offshoring to India."

See above, where I predicted just this kind of asinine response.

If you want to argue against the FLSA, go for it. There's your "outsourcing" argument if you want to make it.

But if you want to argue that FLSA should not apply to someone who happens to work "in an office", as the original article seems to argue, that's ludicrous.

Michelle Dulak Thomson said...

BarryD,

"Salaried jobs do not have fixed working hours, even "ostensible" ones. That's the whole point."

No shit. And the HOURLY job cited in the post I responded to is not a salaried job, and cannot legally be made into one.


Of course not. The point of the comment you responded to would seem to be that some people expect to be paid for not really doing their jobs. If you have a salaried job, pretty much by definition you do the work you're given, and do not get overtime if it takes you more than 40 hours a week to do it.

Yes, Barry, I did follow the link. I did it before commenting, and I did it again to see if there was something pertinent that I missed. I don't think so.

If you're hired as a salaried worker, and sign a contract as a salaried worker, and find you're given more work to do than you'd like, you have the options of (a) quitting; or (b) doing the work you're given as expeditiously as you can.

And honestly, "this workload is worsening my heart condition" is pretty pathetic. If you want less work, at least let it be accompanied with a concomitant decrease in pay. Work whatever hours your heart can stand, but do not expect to be paid as though you're doing the work you were before.

KJE said...

No one in the legal world takes Above the Law Seriously.

BarryD said...

"If you have a salaried job, pretty much by definition you do the work you're given"

Are you familiar with the law in question?

By the legal definition, if you "do the work you're given", it's not a salaried job.

Now should she have quit? Of course. With extreme prejudice.

That's not the point. She's suing to be compensated for work already done, according to the law. She might lose, but this is not the frivolous lawsuit that Above the Law makes it out to be, as repeated by Ms. Althouse.

Michelle Dulak Thomson said...

BarryD,

Are you familiar with the law in question?

Evidently not so familiar as you. Carry on.

By the legal definition, if you "do the work you're given", it's not a salaried job.

By which you mean that salaried jobs are supposed to involve discretion. As there cannot be discretion involved in doing tasks you're assigned to do.

X's current "work given" is to reorganize ten departments so as to make the workflow more efficient. She's doing the work she's given. Salary-able, or not?

kimsch said...

Leslyn,

That was uncalled for.

I found ways to make my work easier by working on automating what I could in Excel and eliminating redundancies and not having to do the work more than once.

I didn't have anyone I could "dump" my work on. In fact, I ended up helping other with theirs.

kimsch said...

There seems to be some confusion about work here.

Independent contractors have discretion over how, where, when, etc. they do their work in order to be an independent contractor and not an "employee".

Employees, salaried or not, work for someone else.

Salaried employees can be told what to do and when to have it done by.

cubanbob said...

When Barry D doesn't like a response, it's asinine. Right. In the meantime accounting, the grunt work, isn't exactly immune from outsourcing or off shoring. Keep digging.

Perhaps he should start asking former draftsman for example on how architectural firms have outsourced the basic drawing work to off shore companies. A substantial portion of professional services can be outsourced and off shored. What this example teaches that whenever possible, outsource work or having done by 1099 contractors. And the the employer saves on health care costs, workman's comp, FICA, overtime and other employee related expenses.

Dust Bunny Queen said...

It seems to me that this woman falls into the Administrative category of salaried employees.

Administrative: Generally includes individuals whose primary duty consists of "office or non-manual work" which: is "directly related to management policies or general business operation" of the employer (activities must be "administrative" as opposed to "production; general business operations" oriented.

more than 50% of their work requires the "exercise of discretion and independent judgment"; and

regularly and directly assists in an executive or administrative capacity; or


If she satisfies the duties test and is paid a salary, properly, without certain deductions or restrictions, then she is a salaried employee.

And...as kimsch said...salaried employees can be told what tasks to accomplish and be given deadlines.

I agree that sometimes the salaried position can be abused by the employer....basically giving the employee a far heavier workload than you would an hourly employee who would need overtime pay to complete the same job. A way of getting more work and paying less. But, I think that situation is less prevelant that you think. After all these are skilled employees with special training so most employers want keep those people.

However, IF you can't have salaried employees, expect outsourcing to independent contractors, outsourcing to other countries and/or many more part time jobs that don't qualify for benefits or overtime.

leslyn said...

kimsch said... "Leslyn, That was uncalled for."

You're right. I don't know enough about you. So on reflection I deleted the comment. But apparently not soon enough. I'm sorry.

kimsch said...

Thanks Leslyn.