Daily Archives: September 26, 2013

Home Health Care Rule and FLSA

Starting January 1, 2015 home care aides are not exempt from Wage and Overtime laws.  The Department of Labor released a press release discussing this wage and hour change as well as unveiling a new web portal with interactive tools.  The web portal for Home Care can be accessed here.

In the DOL’s press release, DOL stated,

This change will result in nearly two million direct care workers – such as home health aides, personal care aides and certified nursing assistants – receiving the same basic protections already provided to most U.S. workers.

The DOL also explained that this wage and hour new rule did not apply to companionship workers.  The DOL stated,

The final rule also clarifies that direct care workers who perform medically-related services for which training is typically a prerequisite are not companionship workers and therefore are entitled to the minimum wage and overtime.

And, in accordance with Congress’ initial intent, individual workers who are employed only by the person receiving services or that person’s family or household and engaged primarily in fellowship and protection (providing company, visiting or engaging in hobbies) and care incidental to those activities, will still be considered exempt from the FLSA’s minimum wage and overtime protections.

The final rule can be accessed here.

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Filed under employment, federal, regulations, rules, wage

Clicking ‘like’ is protected by First Amendment, 4th Circuit says

The ABA Journal has an interesting case regarding Facebook and its “likes.”  If you use Facebook, it is very likely that you have “liked” a page, a comment, a photo, etc.  The 4th Circuit Court of Appeals recently held that a “like” is protected under the First Amendment.

In Bland v. Roberts, No. 12-1671  (4th Cir. Sept. 23 2013), six plaintiffs allege that because their support for the Sheriff’s opponent, the Sheriff retaliated by choosing not the reappoint them. One of the plaintiffs had “liked” the opponent’s Facebook page.

The First Amendment application for a public employee is interesting. In order for a public employee to enjoy First Amendment protection and show that the employer violated the First Amendment, the employee has to show 3 items.

  • (1) the employee was speaking as a citizen upon a matter of public concern rather than an employee about a matter of personal interest;
  • (2) the employee’s interest in speaking upon the matter of public concern outweighed the government’s interest in providing effective and efficient services to the public; and
  • (3) the employee’s speech was a substantial factor in the employer’s termination decision

Furthermore, the degree of the protection depends on whether the political affiliation or political allegiance is an appropriate requirement for the effective performance of the public office.  Here, the three deputies were trained as jailers and had never made an arrest.  In other words, their political support for the Sheriff’s opponent may not a requirement for their performance of their duties.  This speech includes a “like” on Facebook.  The 4th Circuit remanded the case for further proceedings.

via Clicking ‘like’ is protected by First Amendment, 4th Circuit says.

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Filed under civil rights, discrimination, employment, federal

Non-existing law was applied when deporting U.S. Citizen

This is a very interesting case regarding immigration and obtaining citizenship through a U.S. citizen parent.  Basically, this case used Article 314 of the Mexican Constitution when determining whether to deport individuals who claim American citizenship.

In Mexico, Saldana was born to an American male and a Mexican female. His birth certificate listed both parents.  DHS deported him and denied his citizenship application on the basis that he was born out-of-wedlock.

According to DHS, Article 314 provided that children born out of wedlock can only be legitimized if the couple marries subsequently. At oral argument, however, the government admitted that Article 314 did never existed.  DHS then cited Article 130 alleging it required marriage for legitimacy of children.

The Fifth Circuit Court of Appeals held in their opinion disagreed. Article 130 merely cited that marriage was a civil contract, rather than a religious one.  In addition, the court noted that this article said nothing about the legitimization of children.  The court explained,

In sum, under the laws of Tamaulipas, Mexico, where Saldana was born and resided as a child, he was acknowledged by his father when his father placed his name on the birth certificate before the Civil Registry.  As an acknowledged child, Saldana had the same filial rights vis-a-vis his father as a “legitimated” child.

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Filed under civil rights, federal, immigration