Thank you to everyone who participated in Nexsen Pruet’s 2017 Employment and Labor Law Final Exam. We hope the exam was challenging and informative. Congratulations to our winners for being selected from the pool of perfect scores. The winners will each receive a $50 Amazon gift card. 

The exam can be found here. 

Now for the Answers:       

1. In a non-union work setting, if a non-supervisory employee demands that a co-worker be present during a disciplinary meeting, the employer must grant the request.

(A)     True
(b)      False

Answer: “False” is the correct answer. In 1973, the United States Supreme Court held that unionized workers could insist on having representation, including a co-worker, during investigatory interviews that could result in discipline. The Court did not extend these so-called “Weingarten” rights to non-union employees; however, over the last 44 years, the National Labor Relations Board (“NLRB”) has gone back and forth about whether Weingarten rights apply in a non-union work setting.

Since 2004, the NLRB has declined to extend Weingarten rights to non-unionized workers. On May 4, 2017, the NLRB once again declined to extend Weingarten rights beyond the unionized work setting; therefore, the correct answer is “False.”

2. Jane works for Acme Corporation, a small private business with 12 employees. Jane is a non-exempt, part-time employee who is normally scheduled to work 30 hours per week. Acme is sensitive to wage costs and has only 2 full-time employees. Due to a big project, during the next workweek, Jane will be required to work 65 hours. For those 65 hours worked, which of the following methods may Acme use to compensate Jane:

(a)       65 hours at Jane’s regular rate because she is not a full-time employee
(b)       40 hours at Jane’s regular rate and 25 hours of compensatory time (comp time)
(c)       30 hours at Jane’s regular rate and 35 hours of comp time
(d)       Any of the above
(e)       None of the above

Answer: (e) is the correct answer. The Fair Labor Standards Act (“FLSA”) requires that all non-exempt, covered employees must be paid one and one-half times their “regular rate” of pay for each hour or portion of an hour worked over 40 in a workweek. Thus, during the workweek that Jane works 65 hours, Acme must pay her 40 hours at her regular rate of pay and 25 hours at one and one-half times her regular rate of pay – assuming she does in fact work 65 hours.

The FLSA does not allow private employers to use compensatory time or “comp time” to compensate employees for hours worked over 40 in a workweek. Public employers are allowed to use comp time to compensate employees for overtime; however, because Acme is a private employer, the correct answer is (e).

3. The United States Department of Labor’s regulations for the Fair Labor Standards Act provides for an “executive exemption” from overtime compensation. To qualify for the executive exemption, an employee must (1) meet the applicable duties test; (2) have a primary duty of managing the employer’s enterprise, or a department or subdivision of the enterprise; and satisfy which of the following additional requirements?

(a)       Be paid a salary of at least $23,660 per year and supervise two or more full-time or part-time employees
(b)       Be paid a salary of at least $47,476 per year and supervise two or more full-time employees
(c)        Be paid a salary of at least $47,476 per year and exercise discretion and independent judgment with respect to matters of significance
(d)       Be paid a salary of at least $23,660 per year and supervise two or more full-time employees or their equivalent
(e)       Be paid a salary of at least $23,660 per year and exercise discretion and independent judgment with respect to matters of significance

Answer: (d) is correct. The FLSA contains several exemptions to the FLSA’s overtime pay requirements. One of the most commonly applicable exemptions is the executive exemption. The executive exemption requires that the employee be paid a salary of at least $23,660 per year. The Obama era Department of Labor proposed an increase in the salary level to $47,476; however, that proposed increase was disallowed by a federal court in Texas in late August 2017, and the government has not appealed the court’s ruling. Accordingly, answers (b) and (c) cannot be correct.

The executive exemption also requires that the exempted employee customarily and regularly direct the work of at least two or more other full-time employees or their equivalent. This requirement can be satisfied by supervision of two full-time employees, any number of part-time employees, or a combination of one full-time employee and any number of part-time employees as long as the number of employees supervised adds up to the equivalent of at least two full-time employees. Accordingly, (d) is the correct answer.

4. To be subject to the federal Age Discrimination in Employment Act, an employer must employ ___ or more employees each working day in each of ____ or more calendar weeks in the current or preceding calendar year.

(a)       15 & 15
(b)       20 & 20
(c)        15 & 20
(d)       20 &15
(e)       None of the above

Answer: (b) is the correct answer. Notably, the Age Discrimination in Employment Act differs from the Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act, which apply to employers with 15 or more employees.

5. Under the Family and Medical Leave Act (“FMLA”), an employer must allow an otherwise qualified employee to take intermittent leave following the birth or placement of a child for adoption.

(a)       True
(b)       False

Answer: “False” is the correct answer. FMLA leave taken after the birth or placement of a child may be taken on an intermittent basis only if the employer agrees to allow intermittent leave. On the other hand, FMLA leave due to an employee’s own serious health condition, to care for an eligible family member with a serious health condition, for a qualifying exigency, or to care for a covered servicemember with a serious illness or injury may be taken on an intermittent basis.

We hope you have enjoyed our seventh annual final exam. We hope to see you at our 2018 quarterly breakfast briefings, and make plans to tune in for our 2018 labor and employment law webinar series.