Understanding Part-Time Employment: Is 30 hours the magic number?

The Fair Labor Standards Act (FLSA), the preeminent labor law in the country, does not define full or part-time employment. Full or part-time employment does not change the application of the FLSA; it’s protections apply to anyone who does work as an employee. Rather, the FLSA dictates when an employee must be paid overtime. Generally, overtime applies when an employee works over forty hours in one seven day period. * Both employers and employees can get into sticky situations believing that part-time employment means, specifically, less than thirty hours per week and that certain worker protections do not apply to part-time workers.

Many employers believe they do not have to provide benefits for employees who work less than thirty hours per week. This perception comes from the relatively recent mandates under the Affordable Care Act for employers to provide health insurance for full time employees, where a full-time employee is one who works an average of 30 hours per week for more than 120 days in a year. Employer mandated affordable health insurance applies to employers of fifty or more full-time employees. In the past few years, “thirty-hours” has become a short-hand definition for whether any benefits will be provided to part-time employees.

Employers are not prohibited from providing health or any other benefits to employees working less than thirty hours per week. Likewise, employees working less than thirty hours per week should inquire what benefits will be offered as part of their compensation. Neither employees nor employers should make assumptions about compensation–benefits and wages– purely based on the number of hours per week an employee will work.

Because the FLSA applies to all employees, part-time employees are protected by wage and hour laws. They must receive the minimum wage for their jurisdiction and overtime pay for work over forty hours in one seven day period. (Averaging over a two week pay period is not permitted under the FLSA.) Minimum wages vary from state to state, and in Maryland, county to county, so always check with the Department of Labor in your state for the most up to date information. The federal minimum wage is a stagnant $7.25 and is the minimum for any employer in the country when there is no superseding state or local law.

Employers whose employees earn over a threshold amount in one tax year must pay Federal Taxes for their employees (FICA: Social Security and Medicare, and Unemployment). States may have additional taxes for employers, such as state based unemployment insurance. For tax purposes, it is the wages paid in a certain tax year that trigger employer responsibilities, not the number of hours. So, having an employee work fewer than thirty hours per week may not exculpate an employer from tax responsibilities for their employees if their overall wages exceed the minimums on which employers must pay taxes. Similarly, it can be tempting to believe that employers can avoid tax burdens for part-time employees by classifying them as contractors and giving them 1099 tax forms. Whether a person who works for a company can be called a contractor or an employee is a nuanced topic, but in no instance is it determined solely by the number of hours a person works.

Part-time employees, whether they work over thirty hours per week or not, may also be protected by various family and sick leave policies. In Maryland, for example, businesses with 15 or more employees, including part-time, full-time, temporary, and seasonal workers, must provide their workforce with paid sick and safe leave. Employers with 14 or fewer employees are also required, at the minimum, to provide employees with unpaid sick and safe leave. Federal Family and Medical Leave may also apply to part-time employees, depending on the size of the employer and time the employee has worked for the company.

In all cases, part-time employment must be fair employment. All employers should make employment considerations based on their needs, but with a complete understanding of the various laws governing their responsibilities. Employees should be aware of their rights in the workplace, particularly where myth and misinformation abound. For more detailed information about your specific concerns for your business practices or your job, visit the Finkenstadt Law Contact page or call 301-887-8132 to schedule a consultation.

*Nothing in this post is intended to be legal advice nor does this post create an attorney client relationship.

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Your Future Self Will Thank You

Photo by Nathan Dumlao on Unsplash

Every evening, as part of my dinner clean up routine, I set up the coffee maker for the next morning. When I get up and pad my way to the kitchen to start the day, voila! I press the button* and fresh coffee is ready by the time I feed the cat and unload the dishwasher. I am so grateful to my last-night self each morning when I take that first sip.

In the same way, I practice making my future self happy in my legal writing by preparing a transcript digest for each case I brief. The digest is pretty simple; just a chart in One Note (I use Microsoft Office 365) with columns for page number, topic, and details or quote. With the digest, I can quickly notice themes, pinpoint the exact page evidence was admitted or an objection made, and I don’t have to search through the entire transcript to find a page number or quote when write. It is also a quick way to return to the case after time has passed such as when I need to write the reply brief or prepare for oral argument.

The benefits of keeping a digest are pretty obvious, but believe it or not, I struggled through my first several briefs without taking this strategic step. I was lamenting to a colleague my struggle to keep all of the relevant information from a transcript in my mind when she suggested the digest. I immediately slapped my forehead and could not believe I had not thought of this simple solution. Further searching pointed me to the three column method and I had a process!

Since instituting transcript digests in my pre-writing process, I have been better able to analyze the legal issues in my cases, make groupings and draw connections for better persuasive writing. Future me said thank-you! You’re welcome!

*Yes, I know I could set the coffee maker on a timer. I like the flexibility of pressing the on button when I make it to the kitchen.

Fourth Circuit Rules Fair Housing Act allows undocumented immigrants to make disparate impact claims of housing discrimination

Photo Credit: Allison Shelley for the Washington Post

Before I started Finkenstadt Law, LLC I worked for a tremendous non-profit legal aid organization, the Legal Aid Justice Center, in Falls Church, Virginia.  The day to day work of LAJC was defending immigrants in unpaid wage matters, consumer complaints, some immigration cases, and evictions. In the course of my eviction defense work, a series of families came to me from the same mobile home park in Fairfax Virginia complaining of the same treatment; one member of the household had a social security card and immigration status, but one or more of the other household members did not. In each case, the mobile home park management initiated eviction proceedings against the tenants on that basis. The park required each adult household member to provide either a social security number or a valid entry visa in order to live in the park regardless of the legal status of the leasee. (Mobile home tenancies are somewhat unique because the land is rented but the tenant owns the mobile home which sits upon the landlord’s property.)

LAJC and pro bono counsel from the law firm Quinn Emanuel Urquhart & Sullivan, LLP filed suit on behalf of five families from the Waples Mobile Home Park in 2016. I was the coordinating attorney for the team and conducted all of the initial client interviews. I gave one of my best press conferences for this case, and it gained quite a bit of attention because the policy affected so many green card holders. The families were all brave to come forward to have their names on a federal law suit when they could have easily decided to move and remain silent. But, the area of Fairfax county they lived in had great schools and they were home owners. They felt invested in the community and they felt discriminated against.

The suit alleged the mobile home park’s policy was discrimination under the Fair Housing Act using a disparate impact theory. A housing policy has an illegal discriminatory “disparate impact” if it has a disproportionate negative affect on a protected class of persons. In this case, the protected class of persons is Latino or persons of Latin American national origin (all of the clients were from Central and South American countries). The district court judge dismissed the case on a clouded rationale that the plaintiffs could not show any disparate treatment (which they had not alleged) and/or that their disparate impact was not sufficiently probable as to violate the Act.

The Fourth Circuit overturned the District Court in a precedent-setting opinion that holds the plaintiffs’ disparate impact claim is viable and the plaintiffs met the causality requirement showing the causal connection between the Social Security policy and the impact on a protected class.

The Circuit court also took the “opportunity to correct the district court’s grievous error in concluding that the female Plaintiffs’ legal status precluded them from making a prima facie showing of disparate impact, which is a misinterpretation of the robust causality requirement.” The district judge stated that the disputed policy did impact Latinos, but not because they were latino, but because the plaintiffs were undocumented. This view inserted an uncalled for intent element into the robust causation analysis. The Circuit court saw this as a serious misconstruction of the robust causality requirement.

The court vacated the grant of summary judgment to defendants and remanded the case for further proceedings.

The defendant landlords in the case appealed to the United States Supreme Court, but the Court declined to hear the case. Therefore, the Fourth Circuit case stands.

You can read and listen to more about the case and its origins here and here

I am truly honored to have been part of this case and proud of the individual plaintiffs for persevering. When you have a feeling there is injustice in play, a lawyer (or several) can make all the difference. 

Pro bono with friends

Today I had the pleasure of representing two Guatemalan brothers in a guardianship hearing in a pro bono case I took on with a colleague. Tasnima Apol, of Apol Law LLC is an experienced family law attorney who has done guardianship petitions before and I have experience working with immigrant clients in immigration and other matters. It was the perfect opportunity to pair up to do some good and get additional experience while supporting each other. I handled much of the client interviewing because I speak Spanish, and I was also able to navigate the immigration forms we had to send in. Tasnima rocked the direct examination of our clients in court and her comfort level in the courtroom helped us win.

Teaming up to work with another attorney is one way attorneys branch into new areas of practice or enhance the services they can offer to clients, but it is still not very common. Having made the effort, I recommend it. Especially for solo attorneys, working with a colleague on either a paying matter or doing pro bono could open up new areas of work and deepen your experience while while you maintain your individual practices. In our case together, my colleague and I had a representation agreement with the client that expressed that we worked together. In more complex litigation or a larger team a co-counseling agreement between the lawyers in addition to the consent of the client may be necessary to decide issues of work distribution, allocation of fees, and other issues such as ultimate decision making.

In our case, Tasnima and I both gained valuable skills and experience from working with one another and we are happy to say our clients are well on their way to a better life situation as a result. Do pro bono. With friends.

Do you listen to podcasts?

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Since I started working from my home office, I have found that listening to podcasts connects me to the world, other lawyers, and writing ideas in new and creative ways. I have a growing list of favorite legal podcasts that I tune into regularly, and I search for specific topics I am curious about. Regarding legal writing, I enjoyed this episode of LAWsome and this interview on Lawyer 2 Lawyer

For more general fun on the writing life, I’ve enjoyed the Grammar Girl podcast, and I recently found Story Grid, which is about storytelling, writing, and editing.

So, tell me, how are you using podcasts to expand your horizons? Or, are you a podcaster? I’d love to know.

photo via Unsplash artist Melanie Pongratz

September: The Other New Year

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The sign of the (other) New Year is back-to-school sales and all the tempting notebooks, stacks of paper, fresh pens, and especially crayons. This September I am sending my oldest to kindergarten and thinking about bettering this burgeoning practice. If you listen to podcasts, I commend the latest episode of Happier with Gretchen Rubin and Elizabeth Craft on capitalizing on Labor Day to think about your work goals for the “new year.” Some of mine are:

  • Continue to get feedback from my fantastic Legal Writing Group on my work product
  • Build my non-profit  practice by connecting to my various communities
  • Appearing in immigration court more regularly
  • Attending the Maryland Solo Summit in November to “talk shop” and expand business
  • Make my website fully accessible in English and Spanish
  • Integrate calls to action on each page of my website to generate new business

I would love to hear how you are thinking about your work this time of year. Have a lovely labor day weekend!

Photo credit: Ivy Finkenstadt. Display of school supplies at Wegmans.

Friday Legal Writing Question August 24, 2018

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Craig Sybert

Do you use an electronic editing software? If you do, which did you choose and why? I am exploring several before I commit to one. The first I used was a free program online called After the Deadline. AtD is Open Source software and has a WordPress plug in if you have a WordPress blog (like this one). But for brief writing, it would not likely be a permanent solution. That said, it was great to have a free, simple option with a deadline looming. To try the program before downloading, insert your test into the demonstration panel. For a moderately sized brief, I inserted my text in sections and switched back and forth to my Word document to make edits. I found that if I put too much text in at once it said I had no errors, which made me feel fantastic. But such perfection was not accurate. After the Deadline found a number instances of passive voice, a subject verb agreement issue, and a couple of minor spelling errors. It is not legal specific, though, so it works best if you have independently reviewed your citations.

Three other powerhouse programs I am keen to try are the extremely popular Grammarly, which has a free Firefox plug in, Perfect It, a subscription that works with Microsoft 365 and is legal specific, and Word Rake. Word Rake is also a subscription and was started by an attorney. Each seems beneficial, so look out for a comparison post in the near future.