Monthly Archives: May 2016

Changes Are Afoot For Who Gets Overtime Pay

Under federal law, employees are entitled to overtime pay for work done in excess of 40 hours in a workweek, unless the employee fits within one of the exemptions.  The US Department of Labor (“DOL”) issued a major change to the “white collar” exemption.  The current “white collar” exemption applies when the employee performs executive, administrative, professional, and computer-related work, and receives a salary of at least the rate of $455 per week.  The changes by the DOL will increase the weekly salary from $455 to $913.  Converting the numbers to an annual salary, $455/week equates to $23,660/year and $913/week equates to $47,476/year.  The DOL estimated that the change could affect five million employees across the nation.

There also is the “highly compensated employee” version of the “white collar” exemption if the employee receives an annual salary of at least $100,000.  The DOL changes will increase this minimum to $134,004.

The changes will take effect on December 1, 2016.  What this means for employers is that employees currently exempt under the “white collar” exemption may no longer qualify if their salary is below the new minimum.  Those employees will become nonexempt unless another exemption applies, or unless the employer adjusts the employee’s pay to meet the salary requirements.  There could be lawsuits and challenges in Congress aimed at the DOL’s new regulations, but an employer should be prepared in case those challenges fail.

An employer should start now by reviewing its workforce for any employees who could be affected by the change in regulations.  Employers who have affected employees have choices to make.  Those employers need to decide whether it makes sense to change the employee’s salary or job duties, see if another exemption applies, or if the employee is to be nonexempt, making sure the employer complies with the overtime laws.  For example, the employer should consider what the employee will do for the employer “after hours,” if anything.  The time an employee spends checking work email outside of ordinary business hours could count as time worked.

Getting it wrong can be costly.  The federal Fair Labor Standards Act allows the employee who wins in court to recover 100% to 200% of the unpaid overtime pay, attorney’s fees, and costs.  State laws often allow employees who win the lawsuit to get damages and penalties on top of the unpaid wages and attorney’s fees.

There is more to the new regulations, and to the law on overtime pay, than what this article covers.  An employer should work with qualified and knowledgeable professionals when evaluating whether an employee is exempt and how to structure compensation plans to comply with the applicable laws and regulations.  The cost of getting it wrong can be far more than getting it right from the start.

This post provides general information only.  This post is not intended as legal advice or to create an attorney-client relationship.  Do not rely on this post as legal advice.  Laws change and your situation may be different.  You should consult with a licensed attorney for legal advice specific to your circumstances.

© 2016 Matthew D. Macy

 

 

 

NO ® FOR THE LIKES OF YOU!

A federal trademark registration gives the owner of the mark many benefits.  Not everything can be registered, however, even if you can use the mark in the marketplace.  One limitation is a ban in Section 2(a) of the Lanham Act on registering “scandalous” or “disparaging” marks.  A “scandalous mark” is one that involves immoral or scandalous matters.  A “disparaging mark” consists of something that may disparage persons, institutions, beliefs, or national symbols, or bring any of them into contempt or disrepute.

People have argued over what fits within those definitions, with uneven results.  Who wins those arguments can decide whether the application to register fails, or whether a currently registered mark loses its registration status.  Just ask the Washington Redskins what it is like to have a mark lose registration status because of Section 2(a).

A band of Asian-Americans called the “The Slants” went and upset the Section 2(a) apple cart even more.  A member of the band filed an application with the US Patent & Trademark Office (“USPTO”) to register “The Slants” as a trademark.  The USPTO rejected the application, citing Section 2(a), because “slant” is used as a racial slur aimed at Asians.  The band member appealed, eventually getting his case before the full panel of the Federal Circuit Court of Appeals.  In 2015, the Federal Circuit sided with the band member, finding that the ban on registering scandalous or disparaging marks to be unconstitutional.  There is a request pending before the US Supreme Court to hear the case.

While we wait for the US Supreme Court to decide whether to take the case, and to rule if it does take the case, the USPTO instructed its trademark examiners to put on hold any application to register a mark that has scandalous or disparaging content.  The owner of a mark still can apply, but the application will be put on hold.  If Section 2(a) survives the recent court challenge, the owner still can argue that the mark falls outside the ban in Section 2(a).  Others have made similar arguments, with some winning and others losing.

The owner of that kind of mark should have a discussion with a knowledgeable trademark attorney to decide when and whether to apply to register.

For those who want to read more, you can find the Federal Circuit’s full panel decision here and read an NPR article about “The Slants” here.

This post provides general information only.  This post is not intended as legal advice or to create an attorney-client relationship.  Do not rely on this post as legal advice.  Laws change and your situation may be different.  You should consult with a licensed attorney for legal advice specific to your circumstances.

© 2016 Matthew D. Macy