A “thinly-veiled effort to do through regulation” what Congress had refused to do, according to federal district judge Richard Leon, who struck it down in a victory for the interests of elderly and disabled persons in need of care, not to mention the interests of taxpayers and liberty [Bloomberg Business Week] Earlier on the regulations here, here, here, here, here, here, here, here, etc.
An observation from John Goodman via David Henderson:
Almost all government restrictions on our freedom are indirect. They are imposed on us by way of some business. In fact, laws that directly restrict the freedom of the individual are rare and almost always controversial….
But the vast majority of government encroachments on your freedom of action come about through laws that constrain an employer or a seller – without much controversy. …
After proceeding through examples from workplace safety regulation, liquor control, medical device regulation, occupational licensure, and other areas, Goodman adds:
Let’s take one more example from the health care field. The Obama administration is about to impose new regulations affecting home health care workers. They must receive minimum wages and overtime pay. But as far as I can tell, this rule applies only to workers who are employed by agencies and not to workers who are directly hired by an elderly or disabled patient. No matter how they are employed, the economic effects will be the same – a blow to the seniors and people with disabilities. In one case the effects would be visible; in the other they would be invisible. It’s hard to avoid the conclusion that if there were no agencies in home health care, there would be no new regulations.
The growth of the firm may be inevitable, desirable, or both for separate reasons, but it also makes regulation more feasible by generating an entity more suitable for bearing the regulatory harness. Incidentally, is blocking the Obama home health carer overtime regulations a high priority for the incoming Republican Congress, and if not, why not?
The website of Morgan & Morgan, the large personal injury firm headed by politically active Orlando attorney John Morgan (“For the People”), announces the firm’s interest in handling cases alleging overtime infractions and other wage and hour violations under the Federal Labor Standards Act (FLSA), and boasts that its client recoveries in employment cases have exceeded $50 million. Not mentioned is a recent case in which Morgan & Morgan is reported to have “reached a settlement meant to resolve a former field investigator’s allegations that he was not properly paid overtime, according to [an October] filing in Florida federal court.” [Scott Flaherty, Law360] According to an article last year on the dispute, Christopher Hranek “was a field investigator for Morgan & Morgan from June 2008 until he was ‘terminated’ by mail in August 2012 while on Family Medical Leave Act leave, according to the lawsuit. He alleged that he routinely worked more than 40 hours a week and sometimes up to 70 hours weekly, using his 1999 Ford to drive to various locations in the state as the firm’s preliminary contact with injured people or potential clients, but did not receive overtime compensation.” The firm denied the allegations and said it had paid Hranek appropriately. [Jane Meinhardt, Tampa Bay Business Journal; earlier]
…and the right to volunteer one’s labor (earlier), from frequent Overlawyered commenter Gitarcarver at his blog [Raised on Hoecakes]:
Volunteers serve in National Parks around the country without ever being paid for their labor.
Why does the government encourage people to labor without pay for some activities and not others? …
We think that volunteering is noble, rewarding and educational independent of whether the cause is “for profit” or not.
Our issue is not with volunteering.
The issue is what right does the government have in saying where a free citizen of this country can donate his or her time and efforts to?
If you have a friend who is starting a business and you want to help him succeed, why can’t you volunteer your time, efforts and expertise? If a neighbor wants to build and extension onto their offices and you donate a set of architectural or engineering plans because that is your area of expertise. what right does the government have to say “you can’t do that?” If you design web pages and do some work on a web page for a fellow parishioner at your church, what concern is that of the government? How many small businesses have “friends” who donate time to repair or maintain the business’ computers?
The bottom line is the application of the labor of a person is the individual’s choice – not the government’s.
P.S. Small though it was, Westover “produce[d] the greatest variety of ports in the United States,” reports Baylen Linnekin. More from Darleen Click at Protein Wisdom. And in our comments section a reader identifying himself as William Smyth, owner of Westover Winery, comments here.
“California has a state law that prohibits for-profit companies from using volunteer labor.” That spelled doom for little Westover Winery in Castro Valley, which cleared around $11,000 in profits a year for its owning couple and used unpaid volunteers, many of them amateurs who wanted to learn the wine business. The state hit the business with $115,000 in fines and wiped it out, to the unhappiness of some of the displaced volunteers. [Scott Shackford, Reason; Rebecca Parr, Daily Review/San Jose Mercury News] More: A Debra Saunders column. And I mention this episode, along with the one linked below about a California law combating off-books contractors, in a new Cato post about how licensed and compliant businesses often support making government more powerful and invasive so as to go after the other kind.
Mallory Musallam had been a plaintiff in a class-action suit seeking minimum wage and overtime against the talk-show host on behalf of former interns. Now she has apologized and withdrawn her name, saying “lawsuit-hungry attorneys” had approached her at “a weak vulnerable time, facing student debt” and talked her into taking part in an action whose exact nature she didn’t recognize. “I cannot apologize enough for this debacle. I do not believe in getting something for nothing — that’s not how I was raised.” Her “now-former lawyer, Lloyd Ambinder, did not return a call for comment.” [N.Y. Daily News]
The many, many pitfalls of wage-and-hour law: “The Los Angeles City Council on Tuesday finalized a $26-million legal settlement to end a lawsuit over a ban on lunchtime naps by trash-truck drivers. … Sanitation officials had imposed the no-nap rule to avoid the bad publicity that would come if a resident, business owner or television news crew stumbled across a sleeping city employee. But lawyers for the drivers said the city, by limiting workers’ mealtime activities, had essentially robbed them of their meal breaks.” [Los Angeles Times]
Writing checks for overtime (or sending managers home before they reach the point of being entitled to it) is only the more visible cost to business of the Obama administration’s scheme to reclassify layers of junior management as hourly employees. Small businesses told the Wall Street Journal this spring (summarized) of the forbidding morale cost of discouraging ambitious employees from upwardly mobile, which usually means salary-oriented, thinking:
Emo Pentermann, owner of Bell ATM Service Inc., a distribution and repair shop for ATMs and other money machines in Centennial, Colo. …worries that making more people eligible for overtime pay could remove the inherent incentive for lower-level managers to hustle to earn a promotion.
“You work hard, develop the maturity for a salaried position, and then move up,” he says. “It takes away that whole level of maturity and freedom of choosing to get the job done in the time allotted. So for all practical purposes, they just might as well be on a time card.”
Jeffrey Harris has 70 salaried employees at his Chicago-based Inte Q, a marketing firm that specializes in customer-loyalty programs for brands such as Reebok and Office Depot. … He has tried to create a workplace environment that de-emphasizes keeping up with a time clock. For instance, employees can take time off work to attend a child’s performance in school….
…when he heard about the proposal, he said he immediately thought it would affect the type of work culture that has yielded results for him in both profits and employee retention. Only 2% of workers have voluntarily chosen to leave the company in the past three years, he says.
Whole piece here, and earlier on the manager-overtime scheme here and here.
P.S. Proposed regulations anticipated by November 2014, final regulations “unlikely to arrive until Spring 2015″ [Wage and Hour Insights]