- Written by Jarred Lieber
In a recent decision out of Oregon (Brunozzi v. Cable Communications), the Ninth Circuit discussed the effects of the Fair Labor Standards Act (“FLSA”) requirement that employers must use all payments, wages, piece work rates, and non-discretionary bonuses to compute an employee’s “regular rate of pay” for purposes of calculating the rate at which overtime must be paid. In Brunozzi, the plaintiffs were cable tv installers who were paid on a piece-rate basis for each installation, with a guarantee of at least minimum wage, plus overtime for hours worked over 40 in the week. Plaintiffs were also paid a production bonus equal to one-sixth the amount of their piece-rate earnings. However, in what was the fatal flaw for the Court, the employer subtracted the overtime premium earned on the piece-rate work from the production bonus for weeks in which the Plaintiffs worked overtime. As a result, the more overtime hours Plaintiffs worked, the smaller their production bonus became. Because production bonuses must be included in an employees’ regular rate of pay for calculating overtime pay, the Court concluded that this diminishing “bonus” device in the employer’s pay plan caused it to undervalue the plaintiffs’ regular rate of pay during weeks in which they worked overtime. The Court concluded that this was a violation of the FLSA and reversed the trial court’s order granting summary judgment in the employer’s favor.
- Written by Michael Saqui and Jason Yang
An employer would normally be justified in firing an employee who, during a rest break, posted on Facebook that his supervisor was a “NASTY MOTHERF[@#$]ER,” “F[@#$] his mother and his entire f[@#$]ing family!!!! What a LOSER!!!!!” But what if the Facebook post at issue also included the following language, “Vote YES for the UNION!!!!!!!”? Is the call to unionize sufficient to insulate the employee from termination? Shockingly, the Second Circuit Court of Appeals, in NLRB v. Pier Sixty LLC, found that under the circumstances the employee’s termination violated the National Labor Relations Act (“NLRA”).