Labor and Employment Law – Personal Liability in Fair Labor Standards Act Lawsuits

In most lawsuits, even those involving employment-based claims, the existence of a corporation provides protection for owners, corporate officers, and employees from personal liability. One significant exception is when the suit is brought under the Fair Labor Standards Act. Owners, officers, and high-level managerial employees who exercise some control over employment matters often find, to their dismay, that they have been included as a defendant in an FLSA lawsuit along with the corporate employer.

The reason for this potential personal liability arises from the extremely broad definition of employer found in the FLSA: “‘Employer’ includes any person acting directly or indirectly in the interest of an employer in relation to an employee…”

While the majority of cases finding an individual to be an employer involve owners or corporate officers, not all of them do, and the author is unaware of any case holding that that an employer must be an owner. The terms are not synonymous. See, e.g., Patel v. Wargo, 803 F.2d 632, 638 (11th Cir.1986) (a company’s president, director and principal stockholder did not take a sufficiently active role to be an “employer” under the FLSA).

On the other hand, not every exempt executive employee is, a fortiori, an “employer” simply because he or she exercises some managerial authority. The term “employer” is not so expansive that Congress intended that all supervisors be personally liable for FLSA violations. “[C]ourts generally reject ‘the idea that a low-level supervisor within a company can be individually liable.'” (citations omitted) Hernandez v. City Wide Insulation of Madison, Inc., 2006 WL 1993552 *2 (E.D.Wis.). Simply put, not every exempt executive employee is automatically an “employer.”

The test of employer status generally used by courts is a more complicated one looking at the “economic realities” of the relationship and requiring a careful analysis of the facts in a particular case. See, e.g., E.E. Falk v. Brennan, 414 U.S. 190 (1973). Courts have sometimes applied a four-part test in determining whether someone is an “employer”: whether the alleged employer (1) has the power to hire and fire employees; (2) supervises and controls employee work schedules or conditions of employment; (3) determines employees’ compensation; and (4) maintains employee records. Chung v. The New Silver Palace Restaurant, 246 F.Supp.2d 220, 227 (S.D. N.Y. 2002). Nevertheless, the determination is based on all the circumstances and no single factor is dispositive. Id. See Brock v. Superior Care, Inc., 840 F.2d 1054, 1059 (2d Cir.1988); Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir.1999).

Control may be restricted, or exercised only occasionally, without removing the employment relationship from the protections of the FLSA, since such limitations on control “do[] not diminish the significance of its existence.” Donovan v. Janitorial Servs., Inc., 672 F.2d 528, 531 (5th Cir. 1982). However, courts generally require proof, in order to find personal liability for an FLSA violation, that the individual in question is “responsible in whole or part for the alleged violation.” See, e.g., Riordan v. Kempiners, 831 F.2d 690, 694 (7th Cir.1987).

Seniors Rejoice At New Anti Agism Law – Employers Beware Of Age Discrimination At Work

Good news for all those senior baby boomers out there or anyone else of seniority living in the UK. You may or may not be aware, but on Sunday 1st October 2006 an important change in UK employment law come into effect. The new legislation will offer hope to anybody who has felt they’ve been discriminated against in belief that they are too old to continue working. It is hoped that this new law will promote ageism to be as serious and as unacceptable as racism or sexism.

So what does this all mean? Well, one of the biggest changes to be implemented is employers will no longer be able to force compulsory retirement before an employee reaches 65. Before October 1st it was quite common for employers to set there basic retirement age at 60, but not anymore… However, it’s unclear as yet whether the compulsory retirement age of 65 will remain or perhaps be scrapped altogether. Unfortunately, we won’t find this out until 2011 when a formal review will take place.

Due to the ever lightly pension crisis facing many people living in the UK, the ability to work until 65 now offers some rest bite at least. That’s not to say working that long is a good thing, as given the choice I’m sure most people would like to take earlier retirement, but at least seniors can no longer be discriminated against for working longer if they so choose.

While it’s commonly thought the new ageism legislation will make a difference, it’s a shame more wasn’t done by removing the compulsory retirement age of 65 altogether.

Colorado Auto Insurance Laws and Car Insurance Requirements

Colorado auto insurance laws have been enforced over the years to ensure the safety of all road users in the state. State law stipulates that all drivers are required to have the minimum insurance on any vehicle they operate and provide proof of insurance at specific times. Failure to comply can result in a range of penalties including a fine, license suspension and community service.

Because of the utmost importance attached to road safety, Colorado auto insurance requirements necessitate proof of insurance before you can register your car. If you are unable to provide proof, not only will you be prevented from registering your car, you will also be subject to the same penalties that you would face for failure to provide proof at the site of an accident or during a routine traffic stop.

Colorado insurance laws require all drivers to carry the minimum coverage. In Colorado, this includes $25,000 for injury to one person, $50,000 for injury or death of more than one person and at least $15,000 property damage maximum for one accident. This is the minimum required but the state also recommends that drivers increase their liability coverage, including “med pay” coverage. This covers the medical expenses of anybody involved in an accident no matter who was deemed at fault.

Although “med pay” coverage is not required, insurance companies are required to offer drivers this option. Since Colorado changed its status from a “no fault” state in 2003, it is prudent to be covered for any eventuality. This is especially true in light of the fact that it can take a long time to establish blame in most accident cases. Often, litigation can take a number of years to conclude.

Colorado auto insurance requirements stipulate that all drivers must provide proof of insurance coverage at the time they register their car, whenever they are pulled over for a traffic stop or at the scene of any accident. Disclosing false information on an auto insurance form is against the law and can leave drivers open to perjury charges.

First time offenders who fail to produce proof of auto insurance will be fined $500 and have 4 points attached to their driving record. This in turn can cause their insurance premiums to rise. A second offense carries a $1,000 fine and a 4 month suspension of your driver’s license. A third or subsequent offense also results in a $1,000 fine along with an eight month suspension of your license and a compulsory period of 40 hours of community service.

Colorado auto insurance laws may seem harsh but this is a reflection of the extent to which the state is committed towards enforcing road safety. Having proper insurance coverage can help to mitigate expenses and to ensure that everyone involved in any accident receives proper care. This is in the best interest of all Colorado residents and explains why the laws are so comprehensive and rigorously enforced.

Road safety has a direct bearing on everyone, so make sure you adhere to the local laws when you take to the roads in Colorado. A valid insurance policy will give you peace of mind behind the wheel, knowing that no matter what happens you won’t be leaving anything to chance.