Monday Morning Minute
In This Issue
NLRB: Misclassification of Employees NOT ULP
NLRB Makes E-Filing Mandatory
Wage & Hour Quiz
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                  October 28 , 2019


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At the end of August, 2019, the NLRB issued its decision in Velox Express and Jeannie Edge , 368 NLRB No. 61, in which it concluded that an employer's misclassification of employees as independent contractors does not violate Section 8(a)(1) of the National Labor Relations Act.  In so concluding the Board noted that classifying employees as independent contractors does not inherently interfere with or prohibit employees from engaging in protected activity, nor does simply communicating and informing the employees of the classification or misclassification decision.  Of course, the Board noted that an employer can still be liable for unfair labor practices taken as an outgrowth of the misclassification decision.  However, as the Board explained in its lengthy decision, it is not a per se violation to misclassify employees or inform them of the classification decision.
Contact Spognardi Baiocchi LLP if you need assistance with your organization's classification issues.                           
On October 21, General Counsel Peter Robb issued a GC memorandum making the e-filing of documents with the National Labor Relations Board mandatory.  There is a 90-day grace period, until January 21, 2020, for the filing of paper documents, after which documents must be filed through the Agency's e-filing system.  Exceptions to the e-filing requirement are unfair labor practices and petitions in representation proceedings. The new rule applies to all parties and to documents that would have customarily been sent by email to Board Agents and other NLRB personnel.
The US Department of Labor has announced a new salary test for the key 'white collar" exemption from overtime requirements, increasing the qualifying salary to $35,568 per year.  It seems like a good time for a refresher quiz on these important, and often misunderstood exemptions, and related legal requirements.
1. It is not necessary to provide unpaid breaks or lunch periods to employees in Illinois so long as you are consistent in this policy.
2 . Under the new DOL rules if an employee makes over $35,568 per year, it is permissible to pay the employee on an hourly basis and not pay that employee overtime.
3. In order to be considered exempt under the "white collar" exemptions, under either the new rules or the old rules, it is necessary for the employee to supervise at least two other individuals.
4. Under the new rules if an employee holds a professional degree they can be classified as exempt even if they are not paid a salary of at least $35,568 per year.
5. Under the new rules, exempt employees, who are paid a salary of over $35,568 per year, can be "docked" pay on an "hour by hour" basis so long as careful records are kept and they have forms of paid leave to use for these docked time periods.
6. In order to be considered exempt under the "white collar" exemptions, under either the new rules or the old rules, it is necessary that the employee have a managerial title and sufficient authority to back up that title.
7. It is not necessary to supervise "two or more" employees to qualify for the "administrative" exemption from overtime under the FLSA.
8. It is not necessary to supervise "two or more" employees to qualify  for the "professional" exemption from overtime under the FLSA.
9. The FLSA has an overtime exemption for "inside sales" employees that remains unaffected by the new rules.
10. The FLSA has an overtime and minimum wage exemption for "outside sales" employees that remains unaffected by the new rules.
Answers next week in MMM!
SPOGNARDI BAIOCCHI LLP is  a law firm dedicated to partnering with companies of all sizes to address the full spectrum of legal concerns for its business.  Our commitment is to find common sense solutions that fit each clients' unique situation to labor, employment, human resources and general business needs. 

With over 50 combined years of experience among its 2 founding partners in these areas, we can assist businesses in developing custom solutions to today's tough issues.  And as litigators, who combined have over thousands of trials  "under their belts" before state and federal courts as well as administrative agencies (such as the NLRB) you will find no better advocate and partner. 
For more information on the firm, please go to our website at or Lisa at
DISCLAIMER: All content in this Monday Morning Minute is intended for general information only, and should not be construed as legal advice applicable to your particular situation.  No attorney-client relationship is created. Before taking any action based on the information contained herein, you should consider your personal situation and seek professional advice.