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Post by longtimer on Jun 8, 2011 11:08:43 GMT -5
I am not defending her actions and I hope CC wins the suit but I would point out that the fact that they created it as exempt or said repeatedly it was, does not mean that it met the criteria. Those classifications are frequently wrong and over turned. If the labor department feels it was classified that way primarily to avoid paying over time they will over turn it. The fact they reviewed it and she was given a raise might help the case but it is her actual duties and job description that determine her status. It seems to me that is one of the major issues, the others being the actual time sheets and what her superiors knew and allowed. If the time sheets show she did not work the hours it will pretty much be case closed I would think. It will be interesting to see how it all turns out.
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Post by Swimmy on Jun 8, 2011 13:11:44 GMT -5
fairbrother's job description is the same as the one for the county secretary who had to repay overtime she wrongfully collected. When CC FOIL-ed a copy of her job description and classification, they were provided with a county description that clearly indicates it is an overtime-exempt position. Furthermore, this is not before the labor department, so their tendencies are not an issue here. The matter is before Supreme Court (not to be confused with the US Sup Ct - that's more for other readers, not you, longtimer).
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Post by firstamendment on Jun 8, 2011 18:26:37 GMT -5
The legal "opinion" they got on Fairbrothers was bought and paid for. It was the opinion they wanted.
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Post by Swimmy on Jun 8, 2011 18:45:21 GMT -5
Have you read it? It is empty. There are no facts, no cases cited, nothing to really support their position.
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Post by firstamendment on Jun 8, 2011 18:51:52 GMT -5
I believe I did read their "opinion" back when it was linked on the OD. If I recall it didn't really say much.
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Post by Swimmy on Jun 8, 2011 19:39:15 GMT -5
No, it did not.
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Post by firstamendment on Jun 8, 2011 20:03:58 GMT -5
I don't have the legal knowledge you do, but I have had experience with payroll and dealing with unemployment from the employer standpoint and I don't recally much of anything to support their opinion on it at all. I wish I could find it to reread it.
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Post by longtimer on Jun 9, 2011 5:01:59 GMT -5
I realize it is not now before the labor board but that is who it would have gone to if she had filed a normal, formal complaint. Again, I hope she loses and it will be interesting to watch.
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Post by Swimmy on Jun 9, 2011 6:20:17 GMT -5
FirstAmendment, "opinion letter"Longtimer: She never had any intention of going to the labor board. She would have done so 5 years ago, if she were serious. |
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Post by firstamendment on Jun 9, 2011 12:18:45 GMT -5
After supposedly working overtime and not compensated for several years, you'd think she'd have filed a complaint with the labor board. The fact that she did not should be the red herring here. Earle Reed was quoted as saying she had meticulous records of the time she worked. Given such records, it seems like she would have a slam dunk case with the DoL.
She clearly falls under the administrative exemption. There is not a single citation of any of the applicable laws, not by section, part, etc. There is no case history cited either. What they've done is paraphrased the FSLA and NYSLL without actually citing the specific sections. Without those citations, how is anyone to know if what they say actually IS law?
And they are a law firm making legal opinions?
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Post by Swimmy on Jun 10, 2011 6:39:51 GMT -5
They were paid to provide their client with what their client wanted.
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Post by longtimer on Jun 10, 2011 7:28:53 GMT -5
FA, over my career I saw many many opinions from law firms and I am struggling to remember more than a couple that cited cases and law sections unless it was writteen for our corporate attorneys. If the opinion was written for a member of management or even the board they usually tried to take the legal speak out of it as much as possible. It may have been left out for other reasons as stated but the fact that it is not there does not surprise me at all.
Again I hope she loses but the opinion was correct in one thing for sure. "All overtime exemptions must be proved by the employer and all exemptions shall be narrowly construed against the employer". That definitely is how it works.
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Post by firstamendment on Jun 10, 2011 8:52:12 GMT -5
But at least they should have footnoted the applicable provisions. I understand trying to not write it in legalese for the layman to understand, but footnotes are more than appropriate. At least cite a source for that opinion.
The case of the County secretary was a secretary for then Sheriff Middaugh. I felt then, as I still do now, that he should have also been responsible for paying part of that money back. He was her direct superior and he approved her to work the overtime, and even publicly admitted as much. It was his responsibility to find out if she were exempt or not before allowing her to work those hours. Penalizing her for doing what her superior asked of her is ridiculous.
Yeah, Swimmy, goes back to what I said, it was an "opinion" paid for. Interesting.
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Post by Swimmy on Jun 10, 2011 9:30:17 GMT -5
Maybe so, longtimer. But with Gerald Green, Esq. being the one who requested the opinion, you would have expected more of a memorandum of law, not just a pointless "advisory opinion."
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