Published on:

The federal Fair Labor Standards Act (FLSA) defines overtime as any time spent working after eight hours a day or forty hours a week. It also requires employers to pay their workers one and one-half times their normal hourly rate for all the overtime they spend working. Some employers maintain agreements with their workers in which, instead of additional wages, the workers are compensated in the form of extra paid time off, which is not always legal.

Most employers are required to compensate their workers for overtime by paying them the premium overtime rate, but there are exceptions to that rule. For example, government employees can legally receive overtime compensation in the form of one and one-half hours of paid time off for every hour of overtime they work. But there is a limit of a total of 480 overtime hours that are eligible for this method of compensation, and once that limit has been reached, the employees must be compensated in the form of additional wages.

According to an investigation conducted by the U.S. Department of Labor (DOL), the Puerto Rico Police Department was using paid time off to compensate police officers for the overtime they worked, but the department did not pay overtime wages when officers worked more than 480 hours of overtime.

The DOL’s investigation further found the police department had not compensated former police officers for the compensatory time they had built up by the time their employment was terminated. They also did not pay canine officers for the time they spent taking care of dogs for the police department, and did not pay academy cadets the proper compensation for the overtime hours they worked performing activities that were required by the department. Continue reading

Published on:

Death is a part of life and that’s even more true in certain places of our communities, such as hospitals and nursing homes. It’s expected that most people will die there or shortly after their stay, but there are still plenty of deaths happening in these places that are preventable.

Liability insurance for the medical industry is much higher than other industries because they need to protect themselves from angry family members looking for someone to blame for their loss. Sometimes they’re just lashing out, but all too frequently, the families have a legitimate complaint and now many of them are claiming that nursing homes have been working to keep allegations against them out of the public eye.

Over the past decade or so, an increasing number of businesses, including nursing homes, have been including arbitration agreements in both their employment and service contracts. The result is that it has become nearly impossible for consumers to do anything without signing away their right to take the company to court in the event of a legal dispute.

Arbitration was created as a way for businesses to settle disputes between themselves without cluttering the courts with their lawsuits. It is a private process that is much less formal, and often less neutral, than our current legal system. For example, is common for negotiations to take place in the offices of an attorney representing one of the parties. Continue reading

Published on:

It’s often more cost effective for companies to hire independent contractors to perform certain jobs, rather than hiring employees. Even for part-time employees, companies are responsible for paying things like employment taxes and Social Security, none of which they have to worry about with independent contractors. There are benefits to working as a true independent contractor, but because independent contractors are not protected by the federal Fair Labor Standards Act (FLSA), workers have to meet very specific requirements in order to legally be considered independent contractors.

Under the FLSA, workers classified as independent contractors must be able to negotiate their own rates, have control over their own schedule, the environment they work in, and have a certain level of discretion as to how they perform their duties, among other things. Any and all workers who do not meet all of the necessary qualifications for independent contractors must be classified and compensated as employees, including benefits (such as health insurance) for full-time employees.

Many employers have been illegally classifying drivers as independent contractors and FedEx is just one of several companies to have recently faced multiple class action wage and hour lawsuits from drivers alleging they should have been classified as employees.

Current and former FedEx drivers from approximately 40 different states have been filing wage and hour lawsuits against the giant shipping company for more than ten years now. Many of those lawsuits were consolidated into multidistrict litigation (MDL) and then certified as class actions so that drivers from all across the country could combine their claims against FedEx. Continue reading

Published on:

Whether an airline employee can avail himself of state whistleblower protections currently depends on which federal circuit he finds himself in. He should hope not to be in the Eighth Circuit, which continues to find state whistleblower laws preempted by the federal Airline Deregulation Act (ADA), even where the employee reports serious safety violations (John A. Watson v. Air Methods Corp., No. 15-1900 (8th Cir. 2016)).

John W. was a flight paramedic for Air Methods Corp., which transports and provides in-flight medical care for patients being airlifted to hospitals. Air Methods is an “air carrier” for purposes of federal aviation regulations. John allegedly witnessed numerous federal safety violations by the flight crew, which he reported to Air Methods’ corporate office. After the company terminated his employment, he sued Air Methods in Missouri state court for wrongful discharge in violation of public policy, claiming he was fired for reporting illegal activity to his superiors.

Air Methods removed the case to federal court, then sought dismissal based on the Eighth Circuit’s holding in Botz v. Omni Air International, 286 F.3d 488 (8th Cir. 2002). In Botz, the appeals court ruled the ADA preempted a state wrongful discharge claim in a case where a flight attendant had refused to work a round-trip international flight that exceeded maximum crew working hours. The district court granted Air Methods’ motion and John appealed.

The crux of the Botz ruling was ADA’s express preemption clause, which supersedes state laws and regulations “related to a price, route, or service of an air carrier.” Quoting the U.S. Supreme Court in Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992), the court in the instant case wrote: “This section has a ‘broad preemptive purpose,’ precluding state laws ‘specifically addressed to the airline industry’ and generally applicable laws that indirectly relate to air carriers’ rates, routes, or services.” Continue reading

Published on:

Value stores like Meijer and T.J. Maxx, which have built a reputation for providing discounted items, allegedly don’t always use the best business practices for attaining those items. Many of them are sourced from outside the U.S., where labor is cheap, and allegedly sometimes they resort to knockoffs, which are usually cheaper versions of a patented and/or well-known design.

When Design Ideas, a design firm based in Springfield, IL, refused to lower its price on its Sparrow Clips, the retailers threatened to purchase the clips from another vendor. Design Ideas pointed out that it owned the Sparrow Clips’s exclusive copyright, which it had purchased from Pititas Waiwiriya, the Thai designer who allegedly invented the clothespins that come in multiple colors and are topped with the outline of a small bird.

After Design Ideas refused to lower their price, Meijer allegedly started buying “Canary Clips,” a knockoff produced by a company called Whitmor. Whitmor is another vendor that provides products to large retailers across the country, including T.J. Maxx and Meijer.

After someone who worked for Design Ideas allegedly saw the knockoffs being sold at a T.J. Maxx and a Meijer in Springfield, Design Ideas responded by filing a copyright lawsuit against its former customers.

In the claim they filed, Design Ideas included an email that allegedly showed Whitmor asking a Chinese manufacturer how much it would cost them to produce a knockoff of the Sparrow Clips. In that same email, Whitmor also allegedly asked the knockoff manufacturer to research the original mold and discover whether or not it was protected by a patent. Whitmor denies having ever sent such an email. Continue reading

Published on:

Most people who are active on the internet are accustomed to seeing many different memes on a daily basis. People take famous photos or freeze frames from movies, attach their own funny and/or enlightening quotes to them and post them on the internet. Some of these memes go viral and get seen by millions of people, but few people ever stop to think about who owns these memes.

In the United States, memes are most often generated and distributed without much, if any, thought to copyright issues, but it’s a slightly different story in Germany. Recently Get Digital, a German company, received a notification that it owed Getty Images licensing fees for a penguin meme that appeared on one of its blogs.

Getty Images owns the rights to National Geographic‘s photos and the meme on Get Digital’s blog allegedly originated from a photo taken by a National Geographic staff photographer. Get Digital claims the amount Getty Images demanded was double what would be considered a normal licensing fee, but the company paid up anyway. It wasn’t until Getty Images allegedly required confidentiality regarding the transaction that Get Digital decided it had had enough. Continue reading

Published on:

In this online shopping age, when consumers click “place your order” on Amazon.com or any retail website, do they really know what they are agreeing to? The U.S. Court of Appeals for the Second Circuit recently considered the question in Nicosia v. Amazon.com, Inc., No. 15‐423‐cv (2nd Cir. 2016).

In 2013, Dean N. bought a weight loss pill on Amazon called “One Day Diet,” which unbeknownst to him, contained sibutramine, a controlled, prescription-only substance that had been pulled from the market by the FDA in 2010 because of health risks. Sibutramine was not listed on the site as one of the product’s ingredients, nor did Amazon require a prescription for purchase. The FDA revealed in November 2013 that One Day Diet contained sibutramine.

Dean brought a putative class action against Amazon, alleging the online retailing giant had sold and was continuing to sell weight loss products containing sibutramine in violation of federal law and state consumer protection laws. He alleged breach of implied warranty and unjust enrichment, seeking both damages and an injunction prohibiting Amazon from further sale of products containing sibutramine. Continue reading

Published on:

Trademarks can be trickier than a lot of people realize. Although it would be wonderful to simply tell the government you’re trademarking something and rest assured that it will be protected from that point on, the realities of applying for and protecting one’s trademark status are much more blurry.

This continues to be even increasingly the case as our markets become more and more globalized. Although a complaint for an alleged trademark violation would normally have to prove the defendant was infringing on the plaintiff’s market, defining the line between markets has gotten increasingly difficult with both the advent of the Internet and advances in technology that make travel easier and less painful.

A U.S. district court dismissed a lawsuit filed by Trader Joe’s for alleged patent infringement, but Trader Joe’s appealed that decision to the Ninth Circuit Court of Appeals and the appellate court decided to revive the grocery store’s claims. Continue reading

Published on:

Peter Doig isn’t exactly a common name, but the world-famous painter of that name had the bad fortune of bearing a similar name to that of Peter Edward Doige, who is apparently the true creator of a landscape painting at the center of a highly unusual lawsuit that was recently filed in the U.S. District Court of Northern Illinois.

Doige, not the painter Doig, served a short sentence in an Ontario correctional facility for LSD possession in the mid-1970s, which is where he met Robert Fletcher, who was allegedly serving as his parole officer. Fletcher said he watched Doige create a landscape painting that bears some strong resemblances to the paintings Doig is famous for and that regularly sell for $10 million or more. Fletcher said he bought the painting for $100 as a way to help Doige stay on the straight and narrow and helped him get a job.

The painting in question hung on a wall in Fletcher’s office for 40 years before a friend noticed it and told him it was by a famous painter: Peter Doig. Fletcher said he watched a talk Doig had given at a university and recognized his mannerisms as belonging to the man he helped all those years ago. Fletcher then got into contact with an art dealer in Chicago and they began making arrangements to sell the painting. Continue reading

Published on:

Non-compete agreements were initially included in employment contracts with high-level executives at tech companies, but in recent years employers have increasingly been including them in their contracts with almost all their workers.

Non-compete agreements were designed to protect the company’s legitimate business interests by preventing executives with trade secrets and/or valuable relationships with customers from taking those resources to a competitor across the street. However, in an attempt to make their employment contracts air tight, some employers have gotten a little carried away and created non-compete agreements that make it unreasonably difficult for their workers to find any other form of employment at all.

Despite the increased propensity for and strictness of these agreements, many companies don’t bother to enforce them when their lower-level workers start working for a competitor in another region. But when an employer does try to enforce what might be considered an overly restrictive non-compete agreement, workers have been known to fight back, arguing that the agreement is too strict to be legally enforceable. Continue reading