Overtime Compensation For Off-Shift Work E-Mails And Cell Phone Calls

With the growing popularity of smartphones and other devices that allow users to check e-mail, answer calls, and respond to texts, the number of people working while out of the office is growing.  Though many employees regularly do work over the internet outside of normal working hours, few are actually paid overtime for these hours. While it may be difficult to avoid work with growing advances in technology, workers may at least be entitled to receive compensation for work-related e-mailing, calling, or texting.

In the United States, the Fair Labor Standards Act (FLSA) sets strict requirements for overtime compensation. Under these laws, many workers may be entitled to receive overtime pay for their phone and internet usage outside of work hours. This is determined by an employee’s status with the employer as either “exempt” or “non-exempt.” While exempt employees may not receive overtime (including, for now at least, after-hours phone and e-mail usage), non-exempt employees may be able to receive overtime pay when forced to perform work functions after they return home. Even if an employer does not specifically require an employee to answer e-mails or correspondences after hours, the employee may still be eligible to receive overtime pay if the employer allows them to do so and if it is a regular occurrence.

So who is entitled to collect overtime for these after-work actions? Under the FLSA, there’s something that is called an exemption, and if an employee fulfills certain criteria, he or she may not be entitled to the minimum wage and/or overtime pay. Therefore, employees must first find out if they are considered exempt or nonexempt.  There are many exemptions with detailed requirements, but some include executives, managers, or administrators; farmworkers; seasonal recreational establishment employees; casual babysitters; or certain domestic service employees. Though there are many exemptions, most workers in the United States are considered nonexempt, and are therefore eligible to receive overtime.

While many workers seem to think that after-work e-mailing is quick and harmless, these hours can add up. If an individual checks work-related e-mail for only 15 minutes each day (including weekends), this adds up to over ninety overtime hours in the course of a year, which is a significant amount of time.  Recent class action lawsuits on this issue include cases filed on behalf of the Chicago Police Department and T-Mobile workers.

Overtime cases involving off-the-clock e-mail and cell phone use require analysis of federal statutes, U.S. Department of Labor regulations, and court decisions.  I can help you with any employment law or labor law questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.

Safety 1st Cabinet Locks Recalled Due to Lock Failure; Children Can Gain Unintended Access to Dangerous Items

The U.S. Consumer Product Safety Commission, in cooperation with the firm named below, today announced a voluntary recall of the following consumer product. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product.

Name of product: Push ‘N Snap Cabinet Locks

Units: About 900,000

Importer: Dorel Juvenile Group (DJG) Inc., of Columbus, Ind.

Hazard: Young children can disengage the cabinet locks, allowing access to cabinet contents and posing the risk of injury, due to dangerous or unsafe items.

Incidents/Injuries: DJG has received 200 reports of locks that did not adequately secure the cabinet, including reports of damaged locks. Of the reported incidents, the firm is aware of 140 children between the ages of 9 months and 5 years who were able to disengage the locks and gain access to the cabinet’s contents. In three of the reported incidents, the children who gained access swallowed or handled dishwashing detergent, window cleaner or oven cleaner, and were treated, observed and released from emergency treatment centers.

Description: This recall involves Safety 1st Push ‘N Snap cabinet locks with model numbers 48391 and 48442. The model numbers are printed on the back of the product and on packaging. The locks are used to secure cabinets with two straps that wrap around the knobs or handles on a cabinet door. When the product is in the “lock” position, a green triangle is shown through a window on the device. The Safety 1st logo is embossed on the front of the lock. Locks manufactured between January 2004 and November 2010 are included in the recall. The date of manufacture is embossed on the back. The arrow on the date wheel points to the month and the numbers of either side of arrow represent the year of manufacture.

Sold at: Bed Bath & Beyond, and other retail stores nationwide and online at Amazon.com from January 2004 through February 2012 for between $2 and $4.

Manufactured in: China

Remedy: Consumers should immediately remove the recalled locks from cabinets and contact DJG for a free replacement Push ‘N Snap lock with model numbers HS158 or HS159. When removing the recalled locks, consumers are urged to immediately store dangerous items out of reach of children.

Consumer Contact: For additional information, contact DJG toll-free at (866) 762-3212 between 8 a.m. and 5 p.m. ET Monday through Friday or visit the firm’s website at www.djgusa.com

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml12/12136.html

Please feel free to contact me if you have a personal injury or wrongful death or products liability matter that you would like to discuss.  I’ll be happy to see if I can give you a hand.

Overtime Requirements For Unpaid Interns

With spring approaching and summer not far off, employers and students begin thinking about summer jobs, including summer internships.   Many employers have gotten in trouble for using “unpaid interns” as a way around paying hard working employees the wages they’re entitled to.  The good news is that employers are slowly recognizing that strict rules exist concerning when it’s fair to offer an unpaid internship and that it may be a violation of the federal fair Labor Standards Act (FLSA) if they fail to pay adequate wages.

Before you look for an unpaid internship, or entry-level job, it’s important to understand a few basic rules about what type of position may be properly categorized as an unpaid internship and when your employer’s required to pay you for your work.

The United States Department of Labor sets forth specific rules concerning when an internship can be unpaid.  For example, when an internship is unpaid, the company must provide the individual training – the intern can’t just be working to benefit the company.   In some cases, the employer may not derive any advantage from the activities of the intern; and on occasion its operations may actually be impeded.  Additionally, it’s important that an intern not displace regular employees, but intead must work under close supervision of existing staff.

The Department of Labor sets forth additional unpaid internship guidelines.   The bottom line – if you’re working solely to benefit a company without receiving any training – it’s likely you are entitled to receive pay for your efforts.

Overtime cases involving unpaid internships require analysis of federal statutes, U.S. Department of Labor regulations, and court decisions.  I can help you with any employment law or labor law questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.

North American Product Safety Agencies Team Up in the Name of Poison Prevention

As the United States marks the 50th anniversary of National Poison Prevention Week from March 18-24, the U.S. Consumer Product Safety Commission (CPSC) is teaming up with product safety counterparts in Canada and Mexico to call attention to the dangers of unintentional poisoning.

CPSC, Mexico’s Consumer Protection Federal Agency (Profeco), the Federal Commission for the Protection Against Sanitary Risks (Cofepris), and Health Canada have committed to working together to engage consumers during this week. Consumers need to know how to safely choose, use and dispose of potentially harmful products.

Unintentional poisoning is one of the leading causes of injury to children. Poisoning is a preventable injury. Yet each year thousands of children in the United States and across North America are treated in emergency departments after consuming poisonous substances.

“Fifty years of poison awareness efforts have resulted in thousands of lives saved,” said CPSC Chairman Inez Tenenbaum. “However, new and reemerging hazards, such as button cell batteries and chemicals that look like everyday drinks, have renewed CPSC’s efforts to raise awareness and encourage poison prevention.”

While child-resistant packaging, critical safety messaging and education efforts have contributed to a significant decline in deaths, the North American safety agencies are aiming to reduce even further the number of unintentional poisonings.

CPSC recommends that consumers layer the protection in three key steps:

1. Keep medicines and household chemicals in their original, child-resistant containers.
2. Store potentially hazardous substances up and out of a child’s sight and reach.
3. Keep the national Poison Help hotline number, 800-222-1222.

Additional poison prevention steps are:

• When hazardous products are in use, never let young children out of your sight, even if you must take them along when answering the phone or doorbell.
• Keep items closed and in their original containers.
• Leave the original labels on all products, and read the labels before using the products.
• Always leave the light on when giving or taking medicine so that you can see what you are giving or taking. Check the dosage every time.
• Avoid taking medicine in front of children. Refer to medicine as “medicine,” not “candy.”
• Clean out the medicine cabinet periodically and safely dispose of unneeded and outdated medicines.
• Do not put decorative lamps and candles that contain lamp oil where children can reach them. Lamp oil can be very toxic if ingested by children
• Do not allow children to play with button cell batteries, and keep button batteries out of your child’s reach.
• If a button cell battery is ingested, immediately seek medical attention. The National Battery Ingestion Hotline is available anytime at (202) 625-3333 or call the Poison Help hotline at (800) 222-1222.

Source: http://www.cpsc.gov/cpscpub/prerel/prhtml12/12133.html

Please feel free to contact me if you have a personal injury or wrongful death or products liability matter that you would like to discuss.  I’ll be happy to see if I can give you a hand.

Treatment Of Commissioned Workers Under Overtime Law

Many employers mistakenly believe that all commissioned employees are not entitled to overtime pay.  That belief is wrong and can get employers in a lot of trouble.

It’s true that some retail sales employees are exempt from overtime pay, but these exemptions require specific compliance with certain requirements.  The classic example is the case of automobile dealerships, where sales personnel are exempt from the overtime pay requirement.  Yet, this exemption is not absolute.  There are certain requirements that must be met.  Additionally, with respect to automobile salespersons, they must be paid at least the minimum wage for all hours that they work, regardless of whether or not they make a sale.

Typically, automobile salespersons are paid a set “draw” which is usually based on working forty hours per week at the minimum wage or slightly above the minimum wage.  Problems arise if the salesperson either works more than forty hours per week or does not sell any automobiles.  The problem is compounded if the salesperson works more than forty hours per week and does not sell any automobiles.  The salesperson receives the draw, but does not receive any compensation for work performed over forty hours per week.

Another exemption for commissioned salespersons is the retail sales exemption.  Typically, salespersons in a retail establishment are not entitled to an overtime premium.  However, in order to qualify for the exemption, the following requirements must be met:  (1) the employer must be a retail establishment, with 75% of the annual sales being retail sales; (2) the employee’s regular rate of pay must exceed one and one-half times the applicable minimum wage for every hour worked; and (3) more than half of the employee’s compensation must be in the form of commissions.  If any of those requirements are not met, then the employer does not qualify for the retail sales exemption and an overtime premium must be paid for all hours worked over forty per week.

Overtime cases involving commissioned workers require analysis of federal statutes, U.S. Department of Labor regulations, and court decisions.  I can help you with any employment law or labor law questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.

Kawasaki USA Recalls Utility Vehicles Due To Fire Hazard

Name of Product: Utility Vehicles

Units: About 3,900

Distributor: Kawasaki Motors Corp. USA, of Irvine, Calif.

Hazard: The fuel tube can scrape against the air cleaner housing and develop holes, posing a fire hazard.

Incidents/Injuries: Kawasaki has not received any reports of incidents or injuries.

Description: The vehicles are model year 2012 Kawasaki four-wheeled, off-highway utility vehicles with side-by-side seating for two people and automobile style controls. Each model has a bench seat, a rollover protection structure and a cargo bed. The vehicles are available in the colors green, red, black and camouflage. The following models are being recalled:

MODEL NAME	MODEL NUMBERS	COLORS
MULE 600KAF400BCFGreenMULE 610 4×4KAF400ACFRed or GreenMULE 610 4×4 XCKAF400DCF or KAF400ECFBlack or Camouflage

The brand name appears on the sides and tailgate of the cargo bed and the model name appears on the sides of the front cowl. The model number can be found on a label under the seat, which flips up. The abbreviation “4WD” also appears on the sides of the of the cargo bed of the 610 models.

Sold at: Kawasaki dealers nationwide from June 2011 to February 2012 for between $6,700 and $8,200.

Manufactured in: United States

Remedy: Consumers should immediately stop using these vehicles and contact their Kawasaki dealer to schedule a free inspection and repair.

Consumer Contact: For more information, contact Kawasaki between 8 a.m. and 5 p.m. PT Monday through Friday toll-free at (866) 802-9381 begin_of_the_skype_highlighting              (866) 802-9381     end_of_the_skype_highlighting or visit the firm’s website at www.kawasaki.com. Kawasaki is contacting its customers directly.

Source: http://www.cpsc.gov/cpscpub/prerel/prhtml12/12727.html

Please feel free to contact me if you have a personal injury or wrongful death or products liability matter that you would like to discuss.  I’ll be happy to see if I can give you a hand.

OSHA Whistleblower Protection

Iowa has an Occupational Safety and Health (OSHA) statute similar to the federal OSHA statute.  Iowa OSHA’s law, which is found in Iowa Code Chapter 88, is intended to advance “the policy of this state to assure so far as possible every working person in the state safe and healthful working conditions and to preserve human resources.”  Iowa OSHA includes detailed requirements concerning injury reports, injury prevention, training, state investigation and enforcement, and judicial review.

Iowa OSHA allows for reports of safety issues by employees.  Iowa Code 88.9(3)(a)(1) prohibits employers from retaliating against OSHA “whistleblowers”:  “A person shall not discharge or in any manner discriminate against an employee because the employee has filed a complaint or instituted or caused to be instituted a proceeding under or related to this chapter or has testified or is about to testify in any such proceeding or because of the exercise by the employee on behalf of the employee or others of a right afforded by this chapter.”

An employee who believes that they’ve been retaliated against for making an OSHA report or participating in an OSHA investigation may file a complaint with the Iowa Department of Labor under Iowa Code 88.9(3)(b).  The Department of Labor will then investigate the employee’s retaliation complaint.   If the Department of Labor conludes that retaliation has occurred, it has the authority to bring a court action against the employer under Iowa Code 88.9(3)(b)(2).  The court can order reinstatement of employment and other remedies, including back pay.

The employee may also file a civil lawsuit for wrongful termination in addition to pursuing a Department of Labor complaint.  Iowa first recognized wrongful termination claims for OSHA retaliation in the 2009 case of George v. D.W. Zinser Co.  There are several differences between an Iowa Department of Labor complaint and a civil wrongful termination suit under theGeorgecase: (1) you have all the control over a civil suit and virtually none over a Department of Labor investigation; (2) you get to choose your lawyer and court in a civil suit but not in a Department of Labor action; and (3) there are more damages available to you in a civil suit, including emotional distress and punitive damages.

Many employees chose to begin with an Iowa Department of Labor OSHA retaliation complaint and then use any information gathered during the state’s investigation to support a later civil lawsuit for wrongful termination.  That’s the best course of action because nothing prevents you from choosing both legal avenues and the state may help you prove your wrongful termination claim.

A caution though — It’s likely that if you allow your Iowa Department of Labor complaint to proceed all the way to a court action brought by the Department of Labor, and the court rules in your employer’s favor, you’ll forfeit your right to sue for wrongful termination on the same claim.  Litigants normally aren’t allowed to bring the same claim twice, so that means that a court will only decide your OSHA retaliation allegations once, regardless of the outcome the first time.  So the best practice is to, at some point, end the Iowa Department of Labor’s investigation and just move forward with your own OSHA retaliation civil lawsuit in which you’ll have full control of the proceedings, rather than risking that the Department of Labor takes your claim to court for you and loses.

I can help you with any employment law or labor law questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.

Recalled Products Originally Sold By Meijer Found to Have Been Resold By Discounters After Recall Date

WASHINGTON, D.C. – The U.S. Consumer Safety Commission (CPSC) is warning consumers that certain recalled products, originally sold at Meijer, Inc., were resold after the recall date due to an error. These recalled products were improperly disposed of by offering them for sale at discount retailers, dollar stores, liquidation firms, flea markets and thrift stores nationwide at various prices. The recalling firms listed below fully complied with the negotiated terms of their original recall.

Consumers should stop using these recalled products immediately and contact the recalling firms listed below to participate in their individual recall programs. It is illegal to resell or attempt to resell a recalled consumer product.

Innovage Discovery Kids™ Animated Marine and Safari Lamps Recall Date: Feb. 9, 2010 Sale Dates: February 2010 through July 2011 (Black lamps were not included in this recall) Press Release #: 10-135 Hazard: A defect in the lamp’s printed circuit board can cause an electrical short, posing a fire and burn hazard to consumers. Remedy: Full refund Contact: Call Innovage toll-free at (888) 232-1535 begin_of_the_skype_highlighting              (888) 232-1535     end_of_the_skype_highlighting between 9 a.m. and 5 p.m. PT Monday through Friday, visit the firm’s Web site at www.lamprecall.org or email info@lamprecall.org

Infantino “SlingRider” Baby Slings Recall Date: March 24, 2010 Sale Dates: March 2010 through July 2011 Press Release #: 10-177 Hazard: The slings pose a suffocation hazard to infants younger than four months of age. Remedy: Free replacement product Contact: Call Infantino toll-free at (866) 860-1361 begin_of_the_skype_highlighting              (866) 860-1361     end_of_the_skype_highlighting between 8 a.m. and 4 p.m. PT Monday through Friday, or visit the firm’s website at www.infantino.com

Hoover® WindTunnel T-Series™ Bagless Upright Vacuum Cleaners with Cord Rewind Feature Recall Date: May 27, 2010 Sale Dates: May 2010 through July 2011 Press Release #: 10-248 Hazard: The power cord is not properly routed or securely seated in the cord rewind assembly allowing the power cord to be pulled loose. This poses fire and shock hazards. Remedy: Free repair Contact: Call Hoover toll-free at (888) 891-2054 begin_of_the_skype_highlighting              (888) 891-2054     end_of_the_skype_highlighting between 8 a.m. and 7 p.m. ET Monday through Friday, or visit the firm’s Web site at www.hoover.com/tseriesrewindrecall

Fisher-Price Ocean Wonders™ Kick & Crawl™ Aquarium (H8094) Recall Date: Sept. 30, 2010 Sale Dates: September 2010 through July 2011 Press Release #: 10-362 Hazard: The valve of the inflatable ball on these toys can come off and pose a choking hazard to young children. Remedy: Free replacement kit Contact: Call Fisher-Price at (800) 432-5437 begin_of_the_skype_highlighting              (800) 432-5437     end_of_the_skype_highlighting between 9 a.m. and 6 p.m. ET Monday through Friday or visit the firm’s website at www.service.mattel.com

Fisher-Price Little People Wheelies Stand ‘n Play Rampway Recall Date: Sept. 30, 2010 Sale Dates: September 2010 through July 2011 Press Release #: 10-360 Hazard: The wheels on the purple and the green cars can come off, posing a choking hazard to young children. Remedy: Free replacement cars Contact: Call Fisher-Price at (800) 432-5437 begin_of_the_skype_highlighting              (800) 432-5437     end_of_the_skype_highlighting between 9 a.m. and 6 p.m. ET Monday through Friday or visit the firm’s website at www.service.mattel.com

Fisher-Price Barbie Tough Trikes (Model: M5727) Fisher-Price Kawasaki Tough Trikes (Model: N6021) Recall Date: Sept. 30, 2010 Sale Dates: September 2010 through July 2011 Press Release #: 10-359 Hazard: A child can strike, sit or fall on the protruding plastic ignition key resulting in serious injury, including genital bleeding. Remedy: Free replacement key Contact: Call Fisher-Price at (800) 432-5437 begin_of_the_skype_highlighting              (800) 432-5437     end_of_the_skype_highlighting between 9 a.m. and 6 p.m. ET Monday through Friday or visit the firm’s website at www.service.mattel.com

Munchkin Bathtub Subs Recall Date: Oct. 18, 2010 Sale Dates: October 2010 through July 2011 Press Release #: 11-012 Hazard: The intake valve on the bottom of the submarine toy can suck up loose skin, posing laceration hazard to children. Remedy: Free replacement toy Contact: Call Munchkin at (877) 242-3134 begin_of_the_skype_highlighting              (877) 242-3134     end_of_the_skype_highlighting anytime or visit the company’s website at http://www.munchkin.com.

Sassy Refreshing Rings Infant Teethers/Rattles Recall Date: Jan. 31, 2011 Sale Dates: January 2011 through July 2011 Press Release #: 11-114 Hazard: Small pieces of the plastic ball can detach as a result of children chewing on the teether/rattle, posing an ingestion hazard. Remedy: Free replacement toy Contact: Call Sassy Inc. at (800) 323-6336 begin_of_the_skype_highlighting              (800) 323-6336     end_of_the_skype_highlighting between 8 a.m. and 4:30 p.m. ET, Monday through Friday or visit the firm’s website at www.sassybaby.com

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml12/12126.html

Please feel free to contact me if you have a personal injury or wrongful death or products liability matter that you would like to discuss.  I’ll be happy to see if I can give you a hand.

Law Enforcement Liability For Improper Investigations

Sometimes people are arrested and charged with a crime even though they’re innocent.  Innocence might be established because the charges are dropped.  Occasionally innocence isn’t proved until a not guilty decision is achieved through a trial.  But what legal rights do people have after being investigated for crimes they didn’t commit?  Can law enforcement be held civilly liable for investigating the wrong person?

The answer is yes, in limited circumstances.  You need to prove more than that the police were negligent in their investigation and mistakenly focused on the wrong person.  Instead, you have to establish that the police acted “recklessly” or “intentionally” during the investigation to the point that it “shocks the conscience.”  That higher standard of proof ensures that the police aren’t subject to a hindsight analysis every time someone’s charges are dismissed or there’s a trial acquittal.

This is an extremely fact-intensive analysis.  Every police investigation is different, so the application of the “reckless or intentional” standard will vary widely from case to case.  The focus will very much be on what other information was available to the police had they done a further investigation, what information was actually in the hands of the police (for example, did they ignore known evidence that pointed at a different culprit), and how long the police had to investigate (the longer the police have to investigate and deliberate, the harder it is for them to justify going after the wrong person).

In general, these cases are not successful when it’s nothing more than a matter of the police sifting through various pieces of evidence, some of which implicate the suspect, some of which did not, and then deciding to go with the “inculpatory” evidence against the suspect and make an arrest.  In that situation, the competing evidence in favor of and against the suspect’s guilt is properly raised in criminal court, but the fact that the inculpatory evidence is later rejected in court does not automatically mean that the police are civilly liable for a wrongful investigation, assuming that they had some other evidence that the suspect was guilty.  A successful case requires that the police ignore available and overwhelming evidence that they’re investigating the wrong person to the point that they violate the suspect’s due process rights by pushing the investigation.

If liability for a wrongful investigation is established, the officers and their law enforcement agency or municipality can be ordered to pay criminal defense attorney fees and expenses and damages for the civil rights violation.  That can include emotional distress, which is impacted by factors such as whether it was a public criminal investigation covered by the media, whether the innocent person was incarcerated for any length of time, and how long the investigation continued before the person was cleared.

American Honda Recalls Trimmers Due to Laceration Hazard

The U.S. Consumer Product Safety Commission and Health Canada, in cooperation with the firm named below, today announced a voluntary recall of the following consumer product. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product.

Name of Product: Grass Trimmers

Units: About 14,000 in the United States and 3,600 in Canada

Distributor: American Honda Motor Company, of Torrance, Calif.

Hazard: The shaft can crack and cause the lower gear case and cutting attachment to detach, posing a laceration hazard to the operator and bystanders.

Incidents/Injuries: Honda is aware of 11 incidents of broken or cracked shafts. No injuries have been reported.

Description: The recalled grass trimmer is made by Honda and has the model number HHT35SUKAT. The trimmer is gas-powered and has a red engine housing with the word “Honda” on the top front and a bicycle handlebar-style grip. A label on the shaft includes the words “Honda” and “HHT35S.” Recalled trimmers are in the serial number range HAHA-1000001 to HAHA-1017345. The serial number is located on the top side of the shaft below the handlebars.

Sold at: Honda Power Equipment dealers nationwide and online from May 2006 to February 2012 for between $420 and $430.

Manufactured in: United States

Remedy: Consumers should immediately stop using these trimmers and contact the nearest Honda Power Equipment dealer to schedule a free inspection and repair.

Consumer Contact: For more information, contact American Honda toll-free at (888) 888-3139 between 8:30 a.m. and 5 p.m. ET Monday through Friday or visit the American Honda’s website at http://powerequipment.honda.com

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml12/12121.html

Please feel free to contact me if you have a personal injury or wrongful death or products liability matter that you would like to discuss.  I’ll be happy to see if I can give you a hand.