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No new Law in the Brief post today, instead I am going to talk about something related to my Draw the Law from last week.  The post on Paying Employees was very timely given the ruling that the 9th Circuit Court of Appeals issued last week Friday.

FLSA Exemption: The Learned Professional

Recall that I discussed the Fair Labor Standards Act (FLSA), which has to do deal with payment of wages, overtime, and exemptions to those situations.  Under the Act, remember that certain types of employees are exempt from the requirements.  For example, if you truly are an executive your employer need not pay at the minimum wage rate or pay at the overtime rate because your status is exempted from the FLSA.

Learned professionals are also exempted like executives. Typically, doctors, lawyers, teachers, nurses, scientists, writers and artists are considered “Learned Professionals.

To qualify for the Learned Professional employee exemption, all of the following tests must be met:

  • The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week;
  • The employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment;
  • The advanced knowledge must be in a field of science or learning; and
  • The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.

Source: DOL’s website.

The Case: Solis v. Washington

Why do I bring this all up?  Well, on the same day as Draw the Law, the U.S. 9th Circuit Court of Appeals (which Hawaii falls under) issued its decision in Solis v. Washington.

In this case the U.S. Secretary of the Department of Labor (DOL) sued State of Washington’s Department of Social and Human Services (DSHS).  Remember, how I talked about that the DOL has enforcement powers?  Well, they can use those enforcement powers in a suit against a state agency as well. The DOL felt that DSHS was wrongly categorizing its social workers as Learned Professionals, thus exempting having to follow the FLSA pay requirements.

However, DSHS contended that their social workers job requirements met the 4th criteria of advanced knowledge must be customarily acquired by prolonged course of specialized intellectual instruction.  The US District Court agreed with the State of Washington, but the DOL appealed and the 9th Court of Appeals reversed this ruling.

B.A. in ANY Field Not the Same as a Degree in a SPECIFIC Discipline

The decision to side with the DOL for the 9th Circuit really turned on the fact that the social worker positions required only a degree in ANY one of several diverse academic disciplines or sufficient coursework in ANY of those disciplines.  The position requirement was not contingent upon a degree in a SPECIFIC discipline.

To fall under the exemption for Learned Professional, the position in question really needs to require a degree in a specialized course of study it must be sufficiently specialized and relate directly to the position.  Therefore, when the education requirement is satisfied by degrees in diverse fields, such as anthropology, education, and criminal justice, but does not call for a course in specialized intellectual instruction.   Even more problematic for DSHS was that they casted an even wider net for the position, by accepting applicants with other degrees so long as they have sufficient coursework in any of those fields.

To read the whole opinion click on: Solis v. Washington.

Takeaway

What you should takeaway from this case, if you are an employer:

  1. DOL enforces the FLSA and takes seriously the use of the exemption (even in the case of state agencies);
  2. Learned Professional is an exemption that can only be claimed if the job requirements are highly specialized and specific;
  3. A higher learning of education is not enough to satisfy the 4th criteria of the Learned Professional requirements;
  4. A specialized and directly related coursework requirement does satisfy the requirement.

Lastly, for employers, whether they be state agencies or business entities, need to take seriously the posting and hiring based on job requirements if they are going to claim an exemption from the FLSA.  Recall that FLSA also exempts executives, administrators, computer employees, outside salespeople, and other industry-specific workers.  You should seek professional or expert advice when designing job requirements if you expect to exempt that position from standard FLSA pay provisions.

If you liked this post or any of my other series please “Subscribe” to this blawg to receive e-mail updates.  In addition, follow me on Twitter and “Like” me on Facebook.  If you need to contact me directly, please e-mail me at Ryankhew@hawaiiesquire.com.

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.  Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

Earlier this week, I discussed how Hawaii Act 123 of 2011 increased the maximum penalties by 10% for HIOSH violations.  Well, today we shall cover the more substantive parts of the law.

General Overview

The Occupational Health and Safety Act (OSHA) and the Hawaii Occupational Safety Health Law (HIOSH) primarily cover an employer’s responsibility for keeping a safe and healthy work environment.

OSHA falls under the US Department of Labor and is the responsibility of the Occupational Safety and Health Administration.  They set the standards, enumerated by an extensive list of regulations.   The Department, through the Administration agency, is responsible for everything involved with OSHA. This includes activities like site inspections, issuing citations, conducting hearings, and directing/enforcing remedies.

What OSHA Requires

Under OSHA employers must:

  1. furnish each employee a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm;
  2. comply with occupational safety and health standards set forth by the regulations promulgated under the law;
  3. keep records as prescribed by the regulations (such as records of accidents, injuries and deaths);
  4. post notices informing employees of their protection and the employers’ obligations under the law; and
  5. refrain from discriminating against employees who exercise their rights under the Act.

The employers that are covered: business affecting commerce (includes professional, agricultural, nonprofit and charitable organizations) –  state and federal governments are excluded.

HIOSH

Several states, including Hawaii, have state-level plans that work through the incorporation of OSHA language, to administer the law.  So while Department of Labor and Industrial Relations (DLIR) may enforce the safety and health violations through the HIOSH office, federal OSHA regulations are often cited when issuing fines or penalties against non-compliant employers.

Differences: the Hawaii version specifically states that employers are to provide employees with safety devices and safeguards in addition to the other requirements.  In addition, ALL employers are to comply with the law.

I will now touch upon some more salient features in a quick, general way, as the law is much too large in scope to cover in a post.  The complexities of compliance with OSHA and HIOSH are important, and you may want to consider a formal training or discussion with attorney or expert.

Safety and Health Program

HIOSH requires all employers with 25 or more employees to maintain a written safety and health program.   If you are in construction and have fewer than 25, but do work that is worth an excess of $100,000 you must have a written program as well.

Recordkeeping

There are many standards, but one of the most applicable standards requires employers with more than 10 employees, to maintain a chronological log of recordable occupational injuries and illnesses with a detailed supplementary information about each occurrence.

Reporting

The purpose of that recordkeeping, is that for injuries and illnesses that result in fatality, hospitalization or 3 or more people, or property damage in excess of $25,000 must be reported to HIOSH.  This includes situations where the employer has fewer than 10 employees.

Posting and Labeling

Every employer has to place in a prominent location information regarding employees’ rights and obligations under OSHA, an annual summary of recorded injuries and illnesses.  Other posting requirements are hazard signs and the proper labeling that entails.

Training and Education

Generally, every employer has to establish some sort of occupational safety and health program, which includes training to provide employees instructional information on safe work practices.  I’d like to bring up workplace violence here because a lot of people have the impression that OSHA and HIOSH is only situations with construction, chemicals, or the like, but the specifics of the law is that the employer is to create a safe environment for the employees.  This includes a work environment free from violence.  Thus, criminal conduct or dangerous personnel situations also do fall under workplace safety.  Therefore, when you consider training and education it should be much broader than instructions on yellow hazard signs and warning labels.

Final Words

There is more to say about HIOSH and OSHA, but those specifics can be handled by an attorney, specialist, or compliance officer.  There are resources available on both the OSHA and HIOSH websites.  So check them out.  Ultimately, the point of all this is so that employers are responsible for keeping their workers safe and to do that requires a lot of planning and implementation of procedures.  The goal is to pass safety inspections and avoid being cited or even possible imprisonment (check out this week’s Law in the Brief).

If you have more questions about the inspecting and monitor, dealing with the Department, appeals, and in general further details of the law ask an attorney or contact the department.  If you liked this post or any of my other series please “Subscribe” to this blawg to receive e-mail updates.  In addition, follow me on Twitter and “Like” me on Facebook.  If you need to contact me directly, please e-mail me at Ryankhew@hawaiiesquire.com.

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.  Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.