Category: Uncategorized

Your Independent Contractors (1099ers) are Probably Misclassified

By: Christina M. Reger 
As non-exempt (hourly) employees, workers are guaranteed minimum wage, overtime compensation, and a host of insurances. Independent contractors do not enjoy such perks. In breaking news last week, the Department of Labor published a memo emphasizing the broad and expansive definition of employee under the Fair Labor Standards Act (FLSA) and concluding (some may say cautioning) that “most workers are employees.” 
Due in large part to the growing number of independent contractors and the corresponding decrease in the number of “employees,” Administrator Weil’s memo interpreted the FLSA’s “suffer or permit to work” and provided an “economic realities test” to assist employers in determining whether their workers are employees or truly independent contractors by asking these six simple questions: 

Is the work performed an integral part of the employer’s business? 
Does the worker have an opportunity to impact profit or loss? 
Does the worker have an investment in the business relationship? 
Does the worker utilize special skills or take independent initiative? 
Is the relationship between the worker and the employer permanent or indefinite? 
Does the business exercise significant control over the worker? 
Now is the time, to (call me) take a look at your workforce. Otherwise, you could be (calling me) looking at back pay for up to three years, interest, penalties, and oh yeah, attorneys’ fees. 

New Proposed Overtime Rules are Here!

By: Christina M. Reger 
It’s here – the time has come. It is the moment I have been preaching about. The Department of Labor has issued new regulations regarding overtime. Several significant changes: 
The overtime pay threshold: The DOL proposes that the minimum weekly salary to qualify for an exemption under the Fair Labor Standards Act be set at $921 per week ($47,892 annually). In 2016, that number will increase to about $970 a week ($50,440 a year). 
The highly compensated employee threshold was also impacted: The total annual compensation requirement needed to exempt highly compensated employees would climb approximately 22% from $100,000 to $122,148 — or the 90th percentile of salaried workers’ weekly earnings. 
The salary threshold will no longer remain stagnant: For the first time ever the salary thresholds will be tied to an annual increase without further rule-making. The DOL is proposing using one of two different methodologies to do this — either keeping the levels chained to the 40th and 90th percentiles of earnings, or adjusting the amounts based on changes in inflation by tying them to the Consumer Price Index. 
Still up for grabs: The duties related test: The Department of Labor has not (YET) changed any of the exemptions’ requirements as they relate to the kinds or amounts of work performed. In its proposed rule, the DOL seeks comment on whether to adjust the duties test to something more quantitative. Some discussion on this topic has been requiring that a certain percentage of an employee’s time be spent performing an exempt primary duty. Said another way, a certain percentage (50% or higher for example) cannot be spent on non-exempt duties. 
Now, once you catch your breath remember, this is not the law – YET. So, plan ahead. Think about your workforce as it relates to your needs, and then call me. 
Helpful Resources published by the Department of Labor 
In case you can’t get enough of this stuff 
President Obama’s bylined column in the Huffington Post 

EEOC Issues Guidance on Pregnancy Discrimination

By: Christina M. Reger 

The U.S. Equal Employment Opportunity Commission (EEOC) recently issued an update of its Enforcement Guidance on Pregnancy Discrimination and Related Issues (Guidance), along with a question and answer document and a fact sheet for small businesses. 
If you would like to discuss any concerns regarding these guidelines or need to update your policies to conform, please contact me. 

Let’s Swap Copyright for Code

By: Christina M. Reger 

Loyola of Los Angeles Entertainment Law Review

View Link 
Under the 1976 Act, copyright commences the moment a work is “fixed in any tangible medium of expression.” However, certain privileges, including the right to sue for infringement, come only when a copyright owner registers the work with the United States Copyright Office and deposits a “complete” copy of the “best edition” with the Library of Congress. The deposit requirement provides for disclosure of the information contained in the work. In fact, even as early as the 1909 Copyright Act, the quid pro quo of federal copyright protection has been disclosure. Disclosure stimulates and encourages creativity by enabling other authors to create and develop new works. 

Additionally, disclosure promotes economic efficiency by building upon current works to create better, more efficient creations and processes.” Society, in return, receives a creative work that stimulates and promotes future works of greater efficiency. 

The 1980 amendments to the 1976 Act (“the 1980 amendments”) incorporated computer programs, comprised of both object code and source code, and classified them as literary works. Once something is classified as a literary work, it receives all of the benefits of copyright protection granted upon registration. 

However, the process for obtaining a copyright for computer programs significantly differs from that for all other literary works. Federal copyright protection for computer programs, both object and source code, is an anomaly within the provisions for obtaining federal protection. In essence, computer code personifies the “golden child” in the field of copyright law because computer code requires limited disclosure, yet receives the same privileges. 

To read this article in its entirety, click here