Law and Lore: Some Confusion Clarified

June 20, 2016

I was in a meeting recently. Some legal topics came up. The people with whom I was meeting—non-attorneys—knew the subject, but we all knew there might be misunderstandings, as laws, or law and lore, get confused. Here are three examples.

Right-to-Work and At-Will Employment. People—even an attorney or two—confuse these concepts. How? Read on.

Right-to-work laws exist in 25 states, including Arizona. The Arizona law, codified at A.R.S. § 23-1302, states:

No person shall be denied the opportunity to obtain or retain employment because of nonmembership in a labor organization, nor shall the state or any subdivision thereof, or any corporation, individual, or association of any kind enter into an agreement, written or oral, which excludes a person from employment or continuation of employment because of nonmembership in a labor organization.

As the language reflects, right to work means no one can make an employee join a union to get or keep a job. No more, no less.

At-will employment has nothing to do with a right to work or labor unions. Instead, an at-will employment relationship gives both parties the right to end it at any time, so long as there is no improper reason for the termination.

Arizona’s at-will law is part of the Employment Protection Act, adopted in 1997. The specific statute is A.R.S. § 23-1501. The statute provides for the at-will arrangement, unless there is a written contract by the employer and the employee “to the contrary setting forth that the employment relationship shall remain in effect for a specified duration of time or otherwise expressly restricting the right of either party to terminate the employment relationship.”

So, simply, right-to-work and at-will are unrelated. Completely.

Salary Means No Overtime. The federal Fair Labor Standards Act governs overtime pay and job classifications. The statute is 29 U.S.C. § 207. The regulations which “flesh out” the statutory requirements are here. (Here’s some more digestible information.)

So what’s the lore here? Many people believe earning a salary makes an employee ineligible for overtime? Not true. The overtime structure makes all employees exempt or non-exempt. Exempt employees have no right to overtime. (An employer can always pay overtime, and if an employer contracts to pay overtime, it must pay overtime.) Non-exempt employees must receive overtime pay if they work more than 40 hours in a workweek.*

So about salaries? Exempt employees must earn a salary, but earning a salary is not enough. To fall into the exempt classification, the salaried employee must make than the minimum salary, and must fall into the Executive, Administrative, Professional, Computer-related, or Outside Sales category.

Overtime is a complicated issue, and it’s beyond the scope of this piece. For today, the lesson is: To have an exempt employee, the right salary is necessary, but not sufficient.

The First Amendment to the U.S. Constitution. Not much gets people more revved up than someone telling them what they can and cannot say. “I have First Amendment rights,” gets heard often. Often, the hollering person is wrong, situationally.

The relevant part of the First Amendment states: Congress shall make no law … abridging the freedom of speech … . The 14th Amendment made the First Amendment applicable to the states by incorporation. Still, the amendment simply limits governmental legislation which limits speech. Thus, nothing about the First Amendment:

  • Prevents someone from boycotting a business because she does not like the company’s position on the availability of free contraceptives;
  • Requires that an employer allow political discussions during working hours in the workplace;
  • Limits the ability of an organization to sanction an owner or employee.

My last example brings to mind—yes, I know, I wrote the examples—Donald Sterling. He owned the Los Angeles Clippers. Recall that he made very offensive comments a few years ago, and ended up participating in a forced sale of the term to Steve Ballmer. Sanctions for speaking his addled, creepy mind? Sure. A First Amendment violation? Not at all, for there was no governmental involvement, and the private organization with which he was affiliated—the National Basketball Association—had an agreement which permitted the action it took.

Lots of lore and confusion out there. I hope I have eliminated a bit of it.

*California has a set of state laws which sit on top of the federal law. Very, very complicated!


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