Time and Time Again (and A Half)

May 12th, 2017 by AttyRick No comments »
     Four score and … well, OK, not quite four score, but 79 years ago, Congress passed the Fair Labor Standards Act and President Roosevelt signed it into law. It was based on legislation originally introduced in 1932; it was so radical for the time, it took six years to get it into a form that would get through Congress.
     The Fair Labor Standards Act of 1938 (FLSA) is something that most of us take for granted (some of us have been fighting to improve) for decades. The FLSA gave us the forty-hour work week, established a national minimum wage, guaranteed overtime pay at “time-and-a-half” for most jobs with most employers, and prohibited most “oppressive child labor.” (It is the same law that allows some “tipped” employees to be paid less than minimum wage, so long as their tips are enough to bring them up to minimum wage; otherwise, the employer has to pay the difference.) The FLSA applies to “employees engaged in interstate commerce or employed by an enterprise engaged in commerce or in the production of goods for commerce.”
     That could soon change, thanks to legislation that has recently passed the House of Representatives and is headed for the Senate. You can always count on Congress to give things a good spin, of course, so this bill is called the “Working Families Flexibility Act of 2017.” After all, who doesn’t like flexibility – especially working families, juggling the burden of getting kids to and from daycare, school, soccer practice, band practice, etc.? But is it really the Working Families’ flexibility they’re concerned with? I think not.
     What the bill seeks to do, essentially, is eliminate your employer’s obligation to pay you for overtime. Currently, the government does not have to pay its employees overtime, but can instead give “comp time” – equal paid time off for the overtime you work. The Act proposes to extend that “flexibility” to private employers.


  • At least in its proposed form, the Act does require that you get an hour and half of comp time for each overtime worked.
  • The Act says that the employer can’t require you to take comp time; it has to be voluntary on the part of you and the employer, and that it can’t be “a condition of employment.” But we know how that works; if you don’t agree to take comp time, the boss will surely remember.
  • You can only bank 160 hours of comp time (approximately 107 overtime hours), and your employer must “cash you out” each January. (Within a month of the end of a one-year cycle. It appears that the employer gets to pick when this year cycle begins and ends, but the default is the calendar year.)
  • Your employer may cash out any hours you have banked over 80, but has to give you 30 days’ notice before doing so. (The Act doesn’t address whether you have the option of using the time instead, or how conflict is resolved if there’s no practical way for you to use the time in that 30-day period.)
  • You may request a cash-out of your time in writing, and the employer must do so within 30 days. (The bill doesn’t address whether an employer can instead require you to use some or all of the comp time during those 30 days.)
  • You are automatically cashed out if you quit OR if you are fired.
  • An employer “shall not directly or indirectly intimidate, threaten, or coerce … any employee for the purpose of interfering with [the] employee’s right … to request or not request compensatory time off in lieu of payment of monetary overtime compensation for overtime hours; or requiring any employee to use such compensatory time.” (The bill does not address who gets the “flexibility” to decide when are acceptable times to use comp time. It only states that you must be allowed to use it “within a reasonable time of the request,” and at a time that “does not unduly burden the operations of the employer.” There’s your flexibility…)
  • On the plus side: If/when you cash out comp time, you get paid at the rate you were making when you worked the overtime, or the rate you are making when you are cashed out, whichever is higher.
  • As written, the Act is essentially a trial run; it will automatically expire five years after it’s enacted into law, unless it’s extended. You can read the entire bill here:
     If you have feedback or suggestions – whether you like it or not – contact your elected representatives and let them know!

Must You Identify Yourself to Police?

August 4th, 2016 by AttyRick No comments »


In the wake of the recent (August 2016) shooting death of Korryn Gaines, a number of people have posed questions to me about 1) the “sovereign citizens” movement, and 2) whether you are required, by law, to identify yourself to the police.

As to the sovereign citizens question, I’ll point you here, as it’s a very broad topic, and there are lots of takes on it, but this one I find to be very insightful:


A number of websites address the question of “Must you identify?”, and several of them, not surprisingly, are posted by sovereign groups, their adherents, or related folks who propound various “philosophies.”

A lot if it’s blather, pseudo law.  For example, from one, regarding police cars:  “Their car lights and sirens are to only go on if there is an investigation.  Therefore they must identify to you the investigation, and your part in it.”  In fact, their lights and sirens have nothing to do with an investigation; they’re there for safety reasons, and when they can – and when they must – turn them on is governed by state law, so it varies by state.  (E.g., some states require them when they exceed the speed limit, if they’re going against traffic lights, etc.)

Some of the case law they are citing is outdated and has been superseded or modified by subsequent cases.  Some of it is just people reading the law to say what they want it to say.  Most importantly, though, much of the law they are citing is taken completely out of context.  That’s the whole reason we lawyers have to give the citation when we quote the law – so others can review that we’re using it correctly.

While you are not required under federal law to show identification to an officer – because by law, a citizen isn’t required to have any “papers” – you are required to identify yourself.  (You can be required to carry relevant ID when driving or when traveling on a commercial airline.)  If you have no ID, they’re generally supposed to take you at your word unless they have an “articulable suspicion” (probable cause) for not doing so.  The Constitutional questions implicate the Fourth (Search & Seizure), Fifth (Self-Incrimination), and Fourteenth (Equal Protection and Due Process) Amendments.

As an example of taking the law out of context (or perhaps, just not knowing how to read and understand it), one site attempts to address the question of whether you can be arrested for “failure to identify.”  The key point of what they claim is this, which they claim summarizes a Supreme Court case:

Kolender v. Lawson (461 U.S. 352, 1983) in which the United States Supreme Court ruled that a police officer could not arrest a citizen merely for refusing to present identification.

What the Supreme Court actually said in Kolender was related only to a specific law in one state, California:

Appellants stress the need for strengthened law enforcement tools to combat the epidemic of crime that plagues our Nation.  The concern of our citizens with curbing criminal activity is certainly a matter requiring the attention of all branches of government.  As weighty as this concern is, however, it cannot justify legislation that would otherwise fail to meet constitutional standards for definiteness and clarity.  See Lanzetta v. New Jersey, 306 U.S. 451 (1939). Section 647(e), as presently construed, requires that “suspicious” persons satisfy some undefined identification requirement, or face criminal punishment.  Although due process does not require “impossible standards” of clarity, see United States v. Petrillo, 332 U.S. 1 (1947), this is not a case where further precision in the statutory language is either impossible or impractical.

We conclude § 647(e) is unconstitutionally vague on its face because it encourages arbitrary enforcement by failing to describe with sufficient particularity what a suspect must do in order to satisfy the statute.  Accordingly, the judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion.

Kolender v. Lawson, 461 U.S. 352 (1983) (emphasis added).

So, the Court does not make a ruling at all on whether someone can be required to identify.  Instead, it is a question about whether a California law, as it was written, was unconstitutional.  Anything else they say in the discussion is “dicta” – side chatter.

What they’re taking out of context is references to a landmark case (which is still our touchstone and guideline case for stops and searches), Terry v. Ohio, 392 U.S. 1, 1968.  Terry is actually still the basic rule, regarding searches and “stop and frisk.”  Recent cases, however, have “trimmed” the protections provided by Terry.  [My software says that other courts have referred to Terry 38,856 times, reaffirming it 6,619 times, and pointing out its limitations or differences from other rules 368 times, but otherwise just pointing to it to say, “This is the rule.”]

You can read the whole case in your spare time:  Kolender on Google Scholar

Generally speaking, though, the Supreme Court has upheld state laws requiring ID, so long as they are Constitutional.  In Hiibel v. Sixth Judicial District Court, 542 U.S. 177 (2004) [a case out of Nevada originally, where a man was asked 11 times for his name, and refused 11 times], the Court said:

The principles of Terry permit a State to require a suspect to disclose his name in the course of a Terry stop.  The reasonableness  of a seizure under the Fourth Amendment is determined “by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate government interests.”  Delaware v. Prouse, 440 U.S. 648, 654, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979).  The Nevada statute satisfies that standard.  The request for identity has an immediate relation to the purpose, rationale, and practical demands of a Terry stop.  The threat of criminal sanction helps ensure that the request for identity does not become a legal nullity.  On the other hand, the Nevada statute does not alter the nature of the stop itself: it does not change its duration, Place, supra, at 709, 77 L. Ed. 2d 110, 103 S. Ct. 2637, or its location, Dunaway, supra, at 212, 60 L. Ed. 824, 99 S. Ct. 2248.  A state law requiring a suspect to disclose his name in the course of a valid Terry stop is consistent with Fourth Amendment prohibitions against unreasonable searches and seizures.

While we recognize petitioner’s strong belief that he should not have to disclose his identity, the Fifth Amendment does not override the Nevada Legislature’s judgment to the contrary absent a reasonable belief that the disclosure would tend to incriminate him.Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177 (2004)

For more:  Hiibel on Google Scholar

So, it’s important to know the specific rule(s) in the state where you are.

Finally, with regard to the discussion above about the Fifth Amendment and the right against self-incrimination, it is important to recognize that the Court has recently ruled that to maintain your right against self-incrimination – that is, the right to not answer questions – under the Fifth Amendment to the U.S. Constitution, you must affirmatively state that you are exercising that right.  Therefore, if you do not wish to answer questions, in order to stop the questions and prevent your refusal from being interpreted as an implication of guilt, you should state, “I am exercising my Fifth Amendment right not to answer questions at this time.”  See Salinas v. Texas, 133 U.S. 2174 (2012).

For more:  Salinas on Google Scholar

It’s also important to understand that the Hiibel case was decided 5-4, which means if heard today, it would have been a tie, and whatever the lower court had decided would have remained the rule.