ACSBlog

  • May 20, 2016
    Guest Post

    by Herman N. (Rusty) Johnson, Jr., Associate Professor of Law, Samford University Cumberland School of Law

    May 18, 2016, is a momentous day for U.S. workers. The U.S. Department of Labor released new overtime rules that restore the New Deal-era promise of the Fair Labor Standards Act (FLSA) by increasing the salary level required to exempt certain employees from overtime pay. The new rules will be a boon for working and middle class Americans, as it will increase their pay, provide them more time to spend with their families, lead to improvements in health and productivity, and create jobs.

    The FLSA, originally enacted in 1938, assures overtime premium pay of time-and-a-half for employees who work more than 40 hours per week. However, the FLSA exempts some types of employees from the overtime protection, in particular white collar workers classified as executive, administrative, professional, outside sales, and computer employees. Congress delegated authority to the Secretary of Labor to define the exemptions, and generally, employers must satisfy three requirements to properly classify employees as exempt pursuant to a white collar category: 1) the employees must be paid a fixed salary, 2) the employees must be paid at least a specific salary amount, and 3) the employees’ primary duties must involve one of the enumerated exemptions.

    Currently, the DOL’s regulations set the salary level at $455 per week, which is $23,660 on an annual basis. The rigors of inflation and inattention have eroded the FLSA’s overtime protection at this level. The designated amount is less than the poverty line for a family of four and only 1.6 times the federal minimum wage of $7.25. Furthermore, at present, a mere seven percent of salaried workers receive overtime protection, whereas 62 percent did so in 1975.

    The new DOL regulations increase the salary level required to trigger the white collar exemptions. The revised rule, which takes effect December 1 of this year, sets the salary level at $913 per week, or $47,476 annually, which equates to the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census region (currently the South). The new rule also creates an updating mechanism which benchmarks the salary level every three years to the same metric.

  • May 20, 2016

    by Jim Thompson

    Oklahoma lawmakers passed a bill that, if signed into law, will make it a felony to perform an abortion, reports Merrit Kennedy at NPR.

    At The Atlantic, Vann R. Newkirk II examines segregation in America’s healthcare system, noting, “Racial differences in almost every health outcome ‒ from infant mortality to life expectancy ‒ are obvious and pronounced, especially between white people and black people.”

    Patricia J. Williams at The Nation says many of the proposed solutions to combatting the Zika virus highlight the dangers of letting religion affect public health policy. 

  • May 19, 2016

    by Alan B. Morrison, Lerner Family Associate Dean for Public Interest & Public Service Law, The George Washington University Law School

    The founders of Uber had a great idea. We know that because millions of Americans use its service daily. We also know it because hundreds of thousands of individuals have signed up to drive for Uber, and many of them love the opportunities it presents: make a little extra cash, control your working hours, and make money from a car that sits idle much of the time.

    On the negative side, Uber treats drivers as independent contractors, not employees, and that means that the drivers pay the employer’s as well as the worker’s share of Social Security and Medicare taxes, they get no vacation or sick pay, and if they are thinking about saving for retirement, they have to kick in 100 percent. In addition, some drivers are unhappy because Uber is able to unilaterally change the conditions under which its drivers work, generally to the detriment of the driver. Some drivers have taken Uber to court or to the National Labor Relations Board, claiming that they are being improperly classified as independent contractors, not employees under state and federal laws. Some of those cases may result in favorable rulings several years from now, but given the fact that many drivers work for Uber only a few hours a week or no more than half time, there is a real likelihood that many of them will be found to be properly classified as independent contractors.

    The leadership in Teamster Local 117 in Seattle had a different idea. They decided to seek legislation that would entitle Uber drivers (and others working for other companies, including taxi companies) to engage in collective bargaining as a means of gaining some leverage with Uber. Under current law, the right to engage in collective bargaining is limited to “employees,” and the idea was to create a comparable right for Uber drivers. The union convinced the Seattle City Council, led by Mike O’Brien, to enact such a law. There was considerable opposition to the law from Uber and its competitors, as well as the business community generally. Mayor Ed Murray declined to sign the law because of his concerns of the burdens that it would place on the City to implement it, but he did not veto it, and so the law became effective on December 23, 2015.

  • May 19, 2016

    by Jim Thompson

    In The Huffington Post, ACS Colorado Lawyer Chapter Vice President Peg Perl laments the short-staffed Supreme Court’s inability to provide justice for women in Zubik v. Burwell.

    At The Nation, Ari Berman opines that automatic voter registration at a national level could produce as many as 50 million new voters.

    The South Carolina Legislature passed a bill Tuesday banning most abortions after 19 weeks of pregnancy, unless the mother’s life is at risk, reports Harriet McLeod at Reuters.

  • May 19, 2016
    Guest Post

    by Margo Schlanger, Henry M. Butzel Professor of Law, University of Michigan Law School

    Consensus for criminal justice and prison conditions reform has been building, and one key urgent area of reform is to reduce our current overuse of solitary confinement. In my new ACS Issue Brief, “How the ADA Regulates and Restricts Solitary Confinement for People with Mental Disabilities,” I argue that the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act provide tools to challenge solitary confinement of individuals with mental disabilities.

    American incarceration rates ballooned in the 1980s and 1990s—and so too did our prisons’ and jails’ use of solitary confinement and other forms of restrictive housing. Right now, in federal, state, and local jails and prisons, an estimated 90,000 to 115,000 prisoners are housed in solitary confinement. They are locked into their cells, about the size of a parking space, for 22 or more hours a day. Their access to programming, reading materials, visitation, exercise, and other “privileges” is extremely limited.

    Change may finally be coming. In 2015, Justice Kennedy noted in a concurring opinion that “[t]here are indications of a new and growing awareness in the broader public of the subject of corrections and of solitary confinement in particular.” Research confirms that “Years on end of near-total isolation exact a terrible price.” Shortly after that, President Obama decried the overuse of solitary confinement; he has since required significant federal reform, including many measures to help keep prisoners with mental disabilities out of solitary.

    Nonetheless, people with mental disabilities are vastly overrepresented in solitary. Sometimes this is because of pure discrimination; other times, because failure to appropriately treat or manage prisoners with mental disabilities leads to their prison misconduct. Once in solitary confinement, isolation frequently exacerbates mental disability, causing a feedback loop of difficult behavior and lengthening terms of isolation.