Monty Python And The Holy Grail Illustrates Wage-And-Hour Law (Part I)

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Monty Python and the Holy Grail is one of my favorite movies of all time. I lost count a long time ago of how many times I’ve watched it. I even went to a special screening of it a few years ago featuring a live Q&A with John Cleese afterward. All the comedy troupe’s films (and their show) are great, but Holy Grail stands above the rest for me.

But what does Holy Grail have to do with employment law?

Exempt v. Non-Exempt Employees

A very important area of employment law that creates a lot of misunderstanding among people who aren’t full-time employment lawyers is the classification of employees as exempt or non-exempt. Most of the time, exempt employees can be paid a flat salary and are not entitled to overtime when they work over 40 hours in a workweek. Non-exempt employees are usually paid hourly and are entitled to time-and-a-half for all hours worked over 40 in a workweek.

A common misconception is that a company can simply pick one or the other. Tired of paying all that overtime? Just call the employees exempt, pay them a flat salary, and voila, no more overtime! Right?

Wrong.

The federal Fair Labor Standards Act and the U.S. Department of Labor’s regulations have very specific rules that govern when employees can be classified as exempt and not be entitled to overtime pay. There are a limited number of exempt classifications for employees. The most common are found in section 13(a)(1) of the FLSA which provides exemptions for employees working in executive, administrative, and professional roles. (There are other types of roles that may be exempt as well, but these are three of the most common.)

To qualify for one of the exemptions, an employee must meet two tests: (1) the salary test and (2) the duties test. The salary test is easy. The employee must be paid on a salary basis at not less than $455 per week (although that amount will be going up soon with updated regs from the U.S. Department of Labor). That’s it.

The duties test is more complicated. To qualify for one of the exemptions, the employees must perform certain job duties and have certain levels of responsibility within an organization. The U.S. Department of Labor has a detailed explanation here of each of the exemptions.

I’m going to use examples from Holy Grail to show how these exemptions work in this article and in parts two and three in the coming weeks.

The Executive Exemption

Let’s start with a relatively easy one.

To qualify for the executive exemption, the first prong of the test is that an employee’s primary duty must be managing the enterprise or managing a customarily recognized department or subdivision of the enterprise. The second prong requires that the employee also customarily and regularly direct the work of at least two or more other full-time employees or their equivalent.

Finally, the third prong is that the employee must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees must be given particular weight. The employee must meet all three of these requirements to qualify for the executive exemption.

King Arthur easily meets all the requirements for the executive exemption. First, he manages the enterprise. After all, he is the one who came up with the idea for the Knights of the Round Table and he was the one who was assigned the quest for the Holy Grail by God himself (“A blessing, a blessing from the Lord!”). He is in charge of the other knights and they all follow his directives. Arthur therefore manages the enterprise and satisfies the first prong.

The other knights might meet this prong because, after joining with Arthur, they each go on to “manage” their own piece of the quest and their own adventures. For example, during Sir Lancelot’s quest, he (on his own) valiantly attempts the rescue of Prince Herbert. He was not directed by King Arthur to do this. One could argue then that each of the knights are in fact managing at least a subdivision of the enterprise by doing their own individual quests.

Turning to the second prong of the executive exemption, King Arthur also meets this part of the test because he directs the work of the other knights and his servants (e.g., Patsy). He thus regularly manages two or more subordinates.

The other knights also satisfy this prong because they each have their own band of servants and hangers-on they direct. (For example, Sir Robin’s Minstrels. Although it’s not clear how much actual control Sir Robin has over them.)

King Arthur also has the authority to hire and fire employees, and so he meets the third prong of the test. As the opening scene demonstrates, he and his faithful servant Patsy begin their adventures by traveling the land (on their horses) in search of knights to join Arthur at Camelot (although Arthur later dubs it “a silly place”). As he encounters and evaluates his eventual Knights of the Round Table, he alone has the authority to hire these other knights. He does not consult with anyone or need anyone’s permission.

But the other knights don’t seem to have that authority. At no point in the film do we see the other knights recruiting others to join their court at Camelot or otherwise “hiring” anyone else. Instead, they go off on their own adventures in the business of the enterprise (namely, seeking the Holy Grail) and sort of do their own thing. While they might have some say in the hiring or firing of the other knights or others, that’s not clear in the film. So the other knights probably don’t meet the final prong of the executive exemption and would either have to be classified as non-exempt or maybe meet one of the other exemptions.

King Arthur is thus probably the only one who meets the requirements of the executive exemption. And that is how it usually is in most organizations: Typically, only the highest-level folks qualify for that exemption.

In the upcoming parts of this article, I’ll illustrate the other exemptions and some other wage-and-hour issues.

evan-gibbsEvan Gibbs is an attorney at Troutman Sanders, where he primarily litigates employment cases and handles traditional labor matters. Connect with him on LinkedIn here, or e-mail him here. (The views expressed in this column are his own.)

WATCH: Zanu-PF won’t tolerate protests masquerading as coups – The Zimbabwean

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JOHANNESBURG – Zimbabwe’s governing Zanu-PF says recent protests masquerading as a coup won’t be tolerated.

Kennedy Mandaza, the party’s spokesperson in South Africa, stopped short of condemning the excessive use of force by police against protesters in Harare last week.

He says security forces stepped in to restore order.

“There are a host of freedoms enshrined in the Constitution and Bill of Rights and Zanu PF believes in them. But what we must be clear of is that these rights are not absolute, only to those in the opposition and urban areas. When someone decides to express his constitutional right and this is what we have seen in the past,” said Mandaza.

The Movement for Democratic Change (MDC) planned rolling mass demonstrations in different cities starting last Friday. It accuses President Emmerson Mnangagwa’s government of mishandling the economy, which is facing its worst crisis in a decade, and repression.

A protest in Bulawayo was called off on Monday following a police ban supported by a court order.

Last week, officers fired teargas and brutally dispersed demonstrators in Harare.

18th CITES Conference votes to end export of wild-caught elephants into captivity – The Zimbabwean

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CITES is the UN Convention on International Trade in Endangered Species.

Iris Ho, senior wildlife specialist for wildlife programmes and policy for Humane Society International, said: “This decision will save countless elephants from being ripped away from their families in the wild and forced to spend their lifetimes imprisoned in substandard conditions at zoos. HSI applauds this decision and calls on all parties to affirm this decision at the plenary session next week.”

CITES parties voted to limit trade in live wild African elephants to ‘in situ’ conservation in their natural habitats, which will end the trade in live wild elephants to captivity in zoos and entertainment venues, effectively ruling them unacceptable and inappropriate destinations.

Forty-six countries voted in favour, 18 voted against and 19 countries abstained. This achieved the two thirds majority for the proposal to pass in committee.

‘Cruel and traumatic’

Audrey Delsink, director of wildlife for Humane Society International/Africa and an elephant biologist, said, “The export of live wild elephants serves no credible conservation purpose and is opposed by numerous elephant biologists. Elephants are highly intelligent, social animals with strong family bonds. The capture of baby elephants is horribly cruel and traumatic to both the mothers, their calves and their herds that are left behind. Calves suffer psychological and physical harm when taken from their mothers. Zoos and other captive facilities force these calves to live in an unnatural, unhealthy environment that does not meet their complex needs.”

The decision applies to the elephants in Botswana and Zimbabwe with elephant populations on Appendix II of CITES, which has an annotation that permits this trade to “appropriate and acceptable destinations”.

Economic Isolation is Hindering Zimbabwe’s Transformation – The Zimbabwean

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Zimbabwean President Emmerson Mnangagwa shakes hands after addressing a meeting attended by white Zimbabwean farmers and businessmen on July 21, 2018 in Harare. WILFRED KAJESE/AFP/GETTY IMAGES

Since the election of a new government for Zimbabwe one year ago, the administration of President Emmerson Mnangagwa, in which I serve, has begun reforming our land policies, changing laws, and commencing a new compensation initiative to address the injustices of the recent past. Some commentators, such as Tonderayi Mukeredzi in Foreign Policy, have legitimately questioned whether this goes far enough.

The new land reform program is a work in progress. Where we stand today is not the end, only the beginning—and the destination will evolve as we learn lessons en route.

Immediately, there is the pressing question of compensation for white farmers whose land was taken. By law, the government was obligated to compensate farmers for improvements and infrastructure on the land—not the land itself. In reality, the payments were delayed and piecemeal.

At present, 53 million Zimbabwean Real Time Gross Settlement (RTGS) dollars ($4.8 million at today’s exchange rate) have been set aside in the 2019 budget to begin a comprehensive payment process covering the 4,500 farmers whose land was acquired under the fast-track land reform program. This is already being disbursed to the most vulnerable among the farmers, in close consultation with their representative organization, the Commercial Farmers Union.

In parallel, the government is completing a nationwide evaluation exercise in order to arrive at an overall compensation figure. The farmers have already computed their own figure. What remains, therefore, is for the government and the farmers to conclude ongoing negotiations to reach a final, agreed compensation figure and payment mechanism. I am confident, given existing goodwill and the desire of all parties to resolve the issue of compensation, that we will soon be in a position to go public with an agreement.

The issue of the land itself has been agreed and settled. For farms obtained under bilateral investment treaties, reimbursement shall be for both land and improvements to land. However, domestic deeds must be seen in a wider historical arc, one laden with colonial dispossession and racial subjugation. A select few held the finest farmland in Zimbabwe to the detriment of our society. Then wrong begot wrong under the policy of President Mnangagwa’s predecessor, Robert Mugabe.

Dredging up these emotive memories of reciprocal dispossession is no way forward. We must solve this land question for all groups—and solve it permanently. If we do not, Zimbabwe will remain caught in its past.

While land reform is about righting historical wrongs, it is also about reclaiming Zimbabwe’s mantle as the breadbasket of Africa. Racist laws have been changed to be color blind and ensure that only the best, most qualified farmers tend the land: White farmers can now obtain 99-year leases on the land, rather than the previous limit of five (all the agricultural lands of Zimbabwe are held in trust by the nation), and leases can now be sublet to white farmers, where once it was often blocked.

Nevertheless, Mukeredzi is correct to identify two obstacles in boosting production, both of which the government recognizes: first, whether a 99-year lease (in their current legal form) can be used as collateral to raise capital for reinvestment into the farm, and, second, the vast fertile tracts that lie fallow across the country.

It is not a question of whether the current policies go far enough, but the speed of travel. For instance, tenancies are not bankable, because they are not transferable in the event of a default. To rectify this, a revised leasehold has been agreed in principle with government and the Bankers Association of Zimbabwe. Now this must be ratified into law. At the same time, property rights are being strengthened through their enforcement, with a clampdown on illegal farm seizures.

The government also knows there is too much fallow land. We know we cannot allow those unable to farm control land in place of those who can—any more than we can allow a person with no driver’s license to drive a taxi. Yet we don’t currently know how much fallow land there is.

Good policy begins with measurement. The land audit carried out last year was just the first phase of a comprehensive nationwide survey. A series of issues must be examined: multiple ownership of the same land, oversized farms, uncertain or contentious boundaries, and grazing allocations. A judgement can then be made as to whether the right mix of incentives are in place to encourage the owner to sell or sublet—or whether a more vigorous policy is required.

The preparations for the second audit began at the end of May. Yet as the chair of the Zimbabwe Land Commission has said, a comprehensive audit that tackled all issues would be swifter if not for a limited budget. Across multiple branches of the government’s reform agenda, this is a root problem that slows our progress: We are constrained not by political will but economic reality.

Coping with the human and economic costs of one of the region’s worst-ever cyclones followed by the most severe drought in four decades has not been easy. The fiscal inheritance handed to us by the past president (which we have now turned to a primary budgetary surplus through austerity measures) as well as shortages of foreign exchange reserves that drive inflation have left government resources thin.

Lifting the Mugabe-era U.S. economic sanctions that prevent full international engagement would remedy this problem. Free to enjoy the full benefits afforded by global engagement, Zimbabwe—with its rich mineral resources and land, a highly educated workforce, and solid infrastructure—would thrive. And with it would come a bigger budget to expedite land reform.

This reengagement, Mukeredzi argues, is hampered by the perception of the record on human rights. We in government know we have more work to do, as with much of our reform agenda. Some tragic and lamentable incidents have taken place since this administration came to power. Yet those incidents should not be read as government intent nor obscure the country’s progress. We cannot change the past, only our future.

The six deaths that followed post-election clashes between security forces and protesters is one such event. Immediately, the government instituted an international commission of inquiry headed by former South African President Kgalema Motlanthe and the international human rights lawyer Rodney Dixon.

Before the commission began its work, the president agreed—in an unprecedented move in Zimbabwe—to implement its recommendations. Hearings took place in public and were broadcast on state television. Nobody was protected from subpoena. And the full report of findings and recommendations were made public after being delivered to the president last December.

The fact that nobody has yet been prosecuted does not mean that the recommendations have been dismissed. To be absolutely clear, those responsible will be held accountable. Meanwhile, other changes are in motion.

First, compensation is currently being paid to the families of victims and will be completed by the end of the year. Second, the Access to Information and Protection of Privacy Act has been repealed and is being replaced by three bills to further promote freedom of expression. Third, the Public Order and Security Act—criticized for impinging on freedom of assembly—is being superseded by the Maintenance of Peace and Order Act, which shall bring security forces entirely under the democratic control of the government. And finally, essential reforms have begun in the police and military units: The Codes of Conduct have been rewritten, and retraining—particularly in relation to human rights in policing and service to citizens in law enforcement—is under way.

These reforms could be accelerated with engagement. Not only would a stronger economy mean more resources for these programs; it would also help bring in critical international expertise to aid the retraining of the country’s security services. Lifting sanctions would not signal the exoneration of the government on human rights; rather, it would strengthen protection of those rights and prevent future abuses.

A week may be a long time in politics, but a year in reform is not. The voiding of sanctions would unleash economic growth and speed Zimbabwe’s rehabilitation and renewal.

Comedian Gonyeti Abducted, Later Found Beaten And Bruised – The Zimbabwean

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Like Kevin Hart or Trevor Noah, Gonyeti makes a living by making people laugh. Also, as most comedians she makes harmless and funny comments about prevailing social and political issues. Sometimes she pokes fun at politicians which is why some commentators thinks that’s the reason she was abducted last night.

Fortunately (or unfortunately), she was found after some hours beaten and bruised.

Earlier this year Gonyeti was also arrested for a skit recorded in 2016 where she and other co-actors were wearing police uniforms.

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From the Above the Law Network

McKinsey Foe Loses Lawsuit, Makes His Point

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Jay Alix will let the Department of Justice take it from here.

Demand Justice Argues No Biglaw Attorneys Should Be Nominated To The Courts

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One of the advantages Republicans and the Federalist Society have when it comes to judicial appointments is that they have managed to turn their agenda-driven support of white supremacy into a guiding legal ideology. Originalism does a lot of work: it’s a form of indoctrination, it’s a purity test, it’s a euphemism, it’s a trap, and it’s a judicial outcome masquerading as a theory of mere interpretation. If Republicans were honest about the agenda behind originalism, people would reject it. If the Federalist Society admitted it was choosing judges solely on their willingness to retard the rights and equality of nonwhite people and women, they wouldn’t be treated as legitimate. But originalism functions like a long garment under which conservatives can smuggle in all sorts of nightmares.

The left has no counterpart. The left’s preference for viewing each case as an individual controversy, instead of some kind of ongoing ideological battle of Constitutional supremacy, defies the promotion of straight ideologues to the bench. Even when Democrats are in favor of pushing a specific ideology, the Democrats operate within a much wider ideological spectrum: a liberal ideologically committed to regulatory authority of the administrative state will fight a liberal ideologically committed to the advancement of civil rights, when those regulations are racist. There is no organizational fealty a progressive must pledge in order to be considered for a judicial opening. Democrats want to nominate “good” judges, whatever the hell that means. They don’t have to have a specific background, they don’t have to be indoctrinated by a specific group, they don’t have to have served their time in preferred positions, nobody cares about their race, color, or creed — they don’t even have to be particularly young.

Which is why Democrats fail. Conservatives strike the same racist and misogynist note, over and over again, while liberals are enamored by the diversity of the keyboard. Conservatives have a conniption when one of “theirs,” like John Roberts, doesn’t rule their way all the time, while liberals make excuses for Stephen Breyer. Republicans who do this work already know not only the next 10 people they want on the Supreme Court, but the next 10 people they want on every circuit court. Democrats… I mean if you asked the people running for the Democratic nomination right now who the next Democratic nominee should be to the Supreme Court, half of them would say “Merrick Garland,” and be surprised when progressive court watchers asked those candidates for their money back.

There is no liberal answer to the Federalist Society, there is no liberal answer to the Judicial Crisis Network; wealthy conservatives pour money into groups meant to win the courts for conservatives, while wealthy liberals pour money into their own presidential campaigns. There is no answer.

There have been lots of attempts to correct this losing asymmetry by groups of the left. Democratic politicians might be frustratingly unwilling to battle Republicans for the control of the courts, but groups like the American Constitution Society and Alliance for Justice have been trying to school politicians and the voting public about what a “good” judge should look like from the left. Today, Demand Justice — a group started by former Clinton campaign national press secretary Brian Fallon — is out with a new proposal that offers an alternative way to pick liberal judicial nominees. Their guiding principle? No Biglaw partners.

From Fallon and Demand Justice’s co-founder, Chris Kang, in their op-ed in The Atlantic:

Today the federal bench is wildly unrepresentative of the legal profession as a whole. Our organization—Demand Justice—has analyzed the professional backgrounds of all 175 circuit-court judges, who serve at the level just below the Supreme Court. It found that nearly 60 percent were once corporate-law partners.

This dynamic has created perverse professional incentives for young, progressive lawyers who possess even the slightest political ambitions. A career at a corporate firm already confers advantages in the form of wealth and social capital, but it has also become a politically safe way station for anyone nurturing hopes of a judicial appointment.

The next Democratic administration should make upending these professional incentives a priority. A career representing indigent defendants or working as a civil-rights lawyer at a public-interest organization should be an asset in progressive circles, not a liability. Republicans aggressively promote judicial nominees who have worked at right-wing advocacy organizations or who have advanced conservative causes, while Democrats unilaterally eschew the political fights that come with such picks. The next Democratic president must break this mold.

Focusing on a lawyer’s training is one way to do it, when imposing a universal ideology is not available. It is unquestionable that the Roberts’ Court has been the most “pro-business” Court of all time, with disastrous effects for worker’s rights and women’s rights. If you can’t say “we’re only going to support judges who support the rights of the underrepresented,” saying “we’re only going to support judges who haven’t made their careers by promoting the rights of the rich and powerful” feels like the next best thing.

I like this idea, way more than I would have a few years ago. Longtime readers of this blog know that somewhere deep inside of me lurks an unabashedly elitist prick. Prep school –> Ivy law school –> Biglaw –> circuit court appointment is a pathway that seemed not just standard, but more or less preferred to me, just a couple of years ago.

But… the Brett Kavanaugh fiasco did something to me. They hurt me. They changed me. They opened my eyes to a reality I was all too willing to overlook while ogling the gold-plated résumés of my peers. The reality is that legal elites will protect their own, no matter what, no matter the cost in blood and treasure to those who look to the courts as the first, last, and only chance at justice.

Long before Brett Kavanaugh was accused of attempted rape, his defense of sexual harasser Alex Kozinski was known. His argument that he didn’t know anything about Kozinski was a lie, and the legal elites were in the best possible position to call him out on that lie. In addition, he was a known political hack — his time working with Ken Starr alone proved that. And he perjured himself in front of Congress.

But elites from Ivy law professors to Biglaw attorneys defended him. Liberal elites. Oh sure, progressive elites “worried” about this absolute antipathy towards women and their reproductive rights, but they consistently told us that Kavanaugh was a “good guy.” Why? Because they went to an event with him and he didn’t shotgun a beer while playing a game of grab-ass? You didn’t need to believe that he tried to rape somebody (which I believe he did) to know that he was entirely unfit for the federal bench, much less the Supreme Court. The inability of powerful elites to see that is an indictment of the whole lot of them.

The entire culture of Biglaw and Ivy League education is how a guy like Brett Kavanaugh is allowed to happen. Telling all of these people that they have to sit on the sidelines for a term or two while we nominate judges who have not been doused by that culture seems like a fine start towards remaking the federal bench.

Now, there are some obvious problems with this approach. NYU Law professor Melissa Murray (who people should really listen to about all things), puts the obvious problem plainly:

Professor Murray goes on to point out that right now, students of color are fielding Biglaw offers, high-paying jobs that they’ve worked their butts off for that are also the only way that they can pay off their huge debts from law school. Many of these people will be accused of “selling out” by their own community, when the reality is that law school is so expensive, the government does so little to help offset the costs, and people of color so rarely have “Mommy and Daddy” pay off their education, that Biglaw is not just the best offer, but the only reasonable one.

Trust me, I’ve been there. It would be hypocritical of me to tell students of color to do anything other than “take the money,” just because I figured out five seconds ago that the culture of elitism kind of sucks.

But, I think there are aspects of this Demand Justice proposal that answer some of Professor Murray’s entirely legitimate criticisms. For starters, Demand Justice is defining “corporate lawyers” as Biglaw partners, not associates. I do think that there is a legitimate distinction that can be drawn between young people who hop in to make some cash and pay some debts, versus established lawyers who use Biglaw as a piggy-bank every time their party is out of favor in Washington. It is the people who are always trying to keep themselves in the good graces of corporate law, in case they ever want to cash in their chips, that are the problem Demand Justice is trying to solve for.

As a second point, encouraging ambitious people who have the financial stability to not go into Biglaw, to not go into Biglaw, isn’t the worst thing in the world. You should be able to spend your entire career as a public defender, and still be considered for a judicial appointment. You shouldn’t feel like if you don’t get your Biglaw stamp that your career is permanently hobbled. Remember, we have a whole generation of potentially brilliant lawyers who were not able to get into Biglaw, because they came out of school during the last recession. And, not for nothing, but we’re on the cusp of having another one. Making sure we value these alternative professional experiences is an important goal.

I reached out to Professor Murrary for some non-Twitter thoughts about these issues. She said:

I do not disagree with the premise of this proposal: that we need a broader understanding of the experiences that make for a federal judge. But this seems less like a temporal re-calibration, and more of a categorical exclusion of a particular group of people from federal judicial service. While I would be delighted to see more public defenders and union lawyers on the judiciary, I would worry about a proposal that excludes from the judicial pipeline the appointment of women and people of color who happen to be partners at law firms.

She added: “People of color are not Biglaw partners because we all love the Chamber of Commerce.”

These critiques track with my own experience in Biglaw. I didn’t love my clients, I loved being able to afford to help my mother out with her rent. But, as I read it, nothing that Demand Justice is saying suggests that Biglaw produces inherently bad judges, they’re saying that Biglaw is inherently overrepresented on the judiciary. That’s something I do think should be fixed. The next Democratic president is going to have a wealth of potential judges to choose from (IF. WE. TAKE BACK. THE SENATE!!!!). Telling Democrats to look at non-corporate types, as opposed to picking people who have been “vetted” by Cravath, strikes me as a good thing. It’s one way to fight back against the Republican effort to reshape the courts as a place for only white men with arch-conservative views.

Of course, if it were me, I’d have a slightly different unfair categorical ban for my judicial appointments: No career prosecutors. But that’s a battle for another day.

No More Corporate Lawyers on the Federal Bench [The Atlantic]

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.