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Thursday, April 23, 2015

Don’t Be Like Lady Gaga

By: Tommy Eden

Jennifer O'Neill worked as Lady Gaga's personal assistant for 13 months until she was terminated in March 2011. Both parties had agreed orally at the outset that O'Neil would receive a flat rate of $75,000 a year for her services.

O'Neil, in her Fair Labor Standards Act (FLSA) lawsuit, claimed that Lady Gaga expected to be working or available to work around the clock, attending to Stephanie Germanotta’s (Lady Gaga’s real name) makeup, hair and other cosmetic details, tidying her hotel rooms, and getting her to events on time. The two generally shared a bed during tours, with the singer-songwriter waking her up in the middle of the night to change a DVD she was watching or take care of some other chore. O’Neil claimed in her suit she was due overtime pay for every hour of every day beyond 40 hours a week during her 13 months of employment.

Lady Gaga's attorneys sought to have the complaint dismissed but the federal district judge disagreed and allowed the case to go forward. The parties eventually settled for an undisclosed amount. One of the interesting arguments made by Lady Gaga was that whatever overtime O'Neil might be due should be calculated under the fluctuating work week method. If Lady Gaga would have taken time to get wise counsel on a written document in compliance with the FLSA her legal saga could have been avoided.

Common Sense Counsel: This is really a lead into the shocking fact that the United States Department of Labor will shortly be reforming the nations overtimes rules for exempt employees. Currently the white-collar exemption is at $23,660 per year and will most likely be doubled to $45-$50,000. Literally millions of workers currently classified “salary exempt” will no longer meet the salary test so employers are going to have to find alternative ways to calculate overtime or face a huge increase in their cost of doing business.
Under the FLSA regulations, there are two options employers should consider. Like the federal judge mentioned in the Lady Gaga case, the fluctuating workweek method and also the BELO contract. These methods provide generally lower overtime cost than traditional overtime models and allows employees to continue the status of "salary".

Under the FWW model the employer pays a fixed salary for up to 40 hours work in a week and an additional halftime rate for hours worked over 40. The benefit to employers is that the regular rate for overtime weeks is calculated by dividing the fixed salary by the number of overtime hours worked in that week.

The BELO contract essentially allows employers to prepay overtime for up to 50 hours at a rate that may be lower than would be otherwise possible. Like the FWW method, several conditions must be met, but at the end of the day an employer can substantially lower the overtime cost for those employees who regularly work more than 40 hours.

Tommy Eden is a partner working out of the Constangy, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at and follow on twitter tommyeden3

Friday, April 17, 2015

Ticket to Heaven?

By: Tommy Eden

Tito and Amanda Watts were arrested on March 31 in Jacksonville, Florida for selling golden tickets to heaven to hundreds of people. The couple, who sold the tickets on the street for $99.99 per ticket, told buyers the tickets were made from solid gold and each ticket reserved the buyer a spot in heaven — simply present the ticket at the pearly gates and you're in.

"People can sell tickets to heaven," a Jacksonville police spokesman said. "But the Watts misrepresented their product. The tickets were just wood spray painted gold with 'Ticket to Heaven — Admit One' written in marker. You can't sell something as gold when it's not. That's where the Watts crossed the line into doing something illegal."

Tito Watts said in his police statement: I don’t care what the police say. The tickets are solid gold… it ain’t cut up two by fours I spray painted gold. And it was Jesus who give them to me behind the KFC and said to sell them so I could get me some money to go to outer space. I met an alien named Stevie who said if I got the cash together he’d take me and my wife on his flying saucer to his planet that’s made entirely of crack cocaine. You can smoke all the crack cocaine there you want… totally free. So, try to send an innocent man to jail and see what happens. You should arrest Jesus because he’s the one that gave me the golden tickets and said to sell them. I’m willing to wear a wire and set Jesus up…

Amanda Watts said in her police statement: We just wanted to leave earth and go to space and smoke rock cocaine. I didn’t do nothing. Tito sold the golden tickets to heaven. I just watched. Police said they confiscated over $10,000 in cash, five crack pipes and a baby alligator.

Many readers shared the above story via social media after 31 March when it appeared on the entertainment web site Stuppid, apparently believing that Tito and Amanda Watts were actually arrested for selling golden tickets to heaven. This story, however, was a work of fiction according to The bizarre photograph of "Tito Watts" that accompanied the article was an unrelated 2011 image taken from a collection of bizarre police mugshots. It even had me fooled because I have listened to actual client situations where the impairing effects of illegal drugs made this story sound totally believable. I have added “selling ticket to heaven signs” to my suggested reasonable suspicion checklist for supervisory training.

Now that you have stopped laughing it is time to sober up because on April 16, 2015, Georgia Governor Nathan Deal signed the Act to create the Georgia Commission on Medical Cannabis with eight-listed medical condition for which THC oil can be used as a treatment. Georgia becomes the 24th State to adopt a medical marijuana law.

Common Sense Counsel: Before Tito and Amanda Watts turn in their employment applications to your business:
1. Understand the laws on Medical Marijuana that are specific to states where employees report for duty;
2. Adopt a legally vetted pre-duty prescription medication and impairing effects substances safety policy that makes it all about safety;
3. Update employee job descriptions to cover critical safety sensitive issues;
4. Adopt an ADA complaint handbook policy on reasonable accommodations in those more difficult states that grant some level of employee status protections;
5. Let employees know your stance on Medical and Recreational Marijuana use;
6. Update your drug-free workplace policy and forms to stay in compliance and reduce the risk of claims and lawsuits; and
7. Stay tuned as these laws continue to rock your employment world.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at with picture of Tito and Georgia Medical Cannabis Law and follow on twitter tommyeden3

Wednesday, April 1, 2015

NLRB "Ambush" Election Rules Now Go Into Effect April 14th

By: Tommy Eden

It's official - President Obama is allowing the National Labor Relations Board (NLRB) Ambush Election rules to take effect on April 14 by a revised NLRB agenda. It's no April Fool’s joke. This week President Obama vetoed a congressional resolution of disapproval seeking to overturn new unionization voting rules Tuesday. Republicans and Labor experts all contend those new rules would allow for "ambush elections."

The New York office of the National Labor Relations Board posted on it website that was conducting a training seminar for its new union election rules at a New York City union office. The NLRB, is the federal government’s top labor arbiter, and is distributing training materials to its regional offices, which oversee local elections. A PowerPoint presentation was made on the ambush election rules at the Service Employees International Union’s New York City headquarters on Thursday. Three NLRB regional directors conducted the training at the “Offices of 32BJ SEIU,” according to a notice posted on the NLRB website.

 Under these new rules, the NLRB will be ready to administrate elections in as little as 13 days from when a petition is filed, rather than the current 40 days.

Common Sense Counsel: This is the Obama Administration continuing payback initiative to Big Labor by pushing through rules that they could not otherwise have gotten through Congress. Taking the following 7 steps can help your company avoid be an easy target for a union campaign: 1) let your employees know how you feel about a union in your employee handbook; 2) don't be afraid to send a letter home to employees reiterating your position; 3) check your no solicitation, no distribution policies for legal compliance and property signage; 4) train your supervisor on appropriate and legal union avoidance steps (TIPS) within the law; 5) make sure your managers and supervisors are being good coaches by showing appreciation for the hard work of employees, involving them in decisions and helping to promote their career path; 6) ask your employees what you can do better with regards to safety, working conditions, communication etc – then do it.; and 7) take affirmative steps to reduce the risk of harassment, favoritism, retaliation and anything else that would hinder a respectful working environment.

Tommy Eden is a partner working out of the Constangy, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at and follow on twitter tommyeden3