Professional Exemption Under FLSA Narrowly Construed

The Court of Appeals for the First Circuit has issued an opinion that sheds light on the professional exemption from the Fair Labor Standards Act's (FLSA) overtime requirements. The Court held that staff writers and editors of The Concord Monitor were not covered by the exemption even though a college degree was one of the job requirements, the writers and editors worked without supervision and had discretionary authority over what was written and printed. The Court emphasized that the exemption is to be narrowly construed. The Court rejected the notion that the employees were engaged in either knowledge of an advanced type or invention, imagination or talent in a recognized field of artistic endeavor.

Why This Is Important . . . The decision makes it clear that even college-educated employees trained on the job to perform white-collar tasks with little or no supervision will not fall under FLSA's overtime professional exemption. Employers must carefully examine the functions performed by white collar workers who are treated as FLSA-exempt.

Defective Power Of Attorney In Estate Plan

In a recent case, a father gave his son a power of attorney to take care of his financial affairs because of his failing health. Under the power the son continued his father's history of making large annual gifts to relatives. The power did not contain a provision that expressly permitted the son to continue the gift giving practice. The court decided that the gifts given by the son under the power were invalid. Since the father retained the right to revoke the gifts during his life, the gifts were included in his taxable estate.

Why This Is Important . . . If, as part of an estate plan, one uses a power of attorney to make gifts to reduce the taxable estate, the power of attorney should include a gift giving provision.

Age Discrimination Law Now Applies To Apprenticeships

Under a new Equal Employment Opportunities Commission (EEOC) rule, the Age Discrimination in Employment Act (ADEA) now applies to apprenticeships. The EEOC has stated that the new rule is necessary because employer downsizing at a time of shrinking opportunities for new employment has a particularly harsh effect on mid-life and older workers.

Why This Is Important . . . Apprenticeship programs have been exempt from the ADEA since 1969. Under the new EEOC rule, businesses can now be sued for administering these programs in violation of the ADEA.

New Sexual Harassment Poster & Policy

Massachusetts recently passed a law which requires a written anti-sexual harassment policy and posters to advise employees of their rights. The MCAD has issued a model policy and poster. Active Nicolai Law Group clients have received copy of the policy and poster. If you would like a copy send an email to niclawgrp@niclawgrp.com including your name, company, and address and we will be glad to send you one.

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