Oh the irony. A poor guy goes to lunch, attends a luncheon, talks about lunch break rights and gets suspended for doing so.
Normally, I’d be really concerned about this (and I am) but the guy in this story is none other than Miles Locker of the infamous “Locker Letter”. You know, the one that made all of us California HR professionals collectively scratch our heads and say “HUH?!” at the same time. This opinion letter stated that California employers should pay their exempt employees a “pre-determined monthly salary of at least twice the minimum wage” for any work that had been performed within the month. This was a wide interpretation of the FLSA, which traditionally required that an exempt employee should be paid for any work performed during the week, regardless of the number of hours or days worked. Luckily, the Labor Commissioner and the IWC rejected the Locker letter and allowed for the traditional interpretation of the FLSA. Whew…
In the meanwhile, it seems like the poor guy just can’t get a break – first he was demoted and now he’s suspended. The suspension, per Cal Law, “a move his attorney attributes to his penchant for issuing opinions that irritate employers. ”
I’m not sure if that’s exactly the case, but karma can be circular.
His suspension has also been attributed to his strong opposition to the governor’s attempt “to weaken workers’ meal rights”. That I can believe.
In the meanwhile, however, is his suspension valid? Maybe, maybe not. He was on his own time, not representing the agency. But there’s no fighting the Governator.
But I wouldn’t worry about Locker too much – he’ll be back.
I don’t think it’s fair to claim Miles was interpreting FLSA when he issued the famous “Locker letter.” Instead, he was trying to interpret the California Labor Code and Wage Order requirements for a “monthly” (in contrast to the FLSA “weekly”) salary rule for exempt employees.
Sure, his interpretation was wack — work a minute, get paid $2300 for the month (and besides, it was during the last energy-brownout crisis where lots of companies were considering a week-long shutdown to save money, and here’s Miles telling them they had to pay exempts during a week-long shutdown and in fact owed the whole “monthly” salary if any work was done), but he wasn’t talking about FLSA.
Point taken. Thank you for the clarification Kent.
I haven’t had the time to research this fully, but my initial impression is that an attorney owes his client (in this case, the agency, whose policies are set by the state executive) a duty of loyalty, as well as confidentiality.
This sounds like he has violated both of those duties, as well as having unilaterally and without his client’s permission abrogated the attorney-client privilege, if his comments were based at all on work that he has done in his professional capacity.
Am I wrong here? Please tell me why if you think so.
You would be correct if he did abrogate the employee-client privilege, however if this were the case, one would expect immediate employment action as opposed to waiting until a month later, although he may have been on vacation for that month as the article states that he was escorted off premises the day he returned from vacation.