Why does the US FLSA have a separate classification for &quot;Computer Employees&quot;? I've been reading a Fair Labor Standards Act fact sheet. I don't understand why "Computer Employees" are classified differently from Professional employees. What is the justification for that difference?
Why does the US FLSA have a separate classification for “Computer Employees”? Based on the rationale in 29 CFR 541.3(a), one may infer that FLSA seeks to protect workers who perform work involving repetitive operations with their hands, physical skill and energy [...] [where] the skills and knowledge required for performance of their routine manual and physical work through apprenticeships and on-the-job training, not through the prolonged course of specialized intellectual instruction required for exempt learned professional employees such as medical doctors, architects and archeologists To reach the same goal, Congress could have amended the preceding excerpt by adding computer employees in the list of learned professional employees. However, my conjecture is that Congress' decision to address computer employees separately is to identify that the effects of their job are of "substantial importance" to the employer or clients, and therefore cannot be considered the type of predominantly clerical employment that FSLA protects. See Boyd v. Bank of America Corp, 109 F.Supp.3d 1273, 1293 (2015). Two of the four cases fetched from this query make reference to the Final Rule Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees, 69 Fed. Reg. 22,122, 22,138 (Apr. 23, 2004), which was subsequently codified as 29 CFR 541. Perhaps the Final Rule or its preceding drafts elaborate on the legislator's rationale for the separate classification.
Employees of an employer aren't governed by a fault based liability regime in the United States (subject to some usually quite narrow exceptions that vary from state to state, which sometimes also limit tort liability). Instead, employers are required to have worker's compensation insurance policies in place, in exchange for not having any tort liability whatsoever to employees. (An employer who doesn't have worker's compensation in place is strictly liable to the worker for all injuries suffered by an employee whatsoever at work, without the prohibition of a worker's compensation insurance policy plan on paying things like pain and suffering damages as well.) Worker's compensation insurance provides coverage (in principle) for all medical costs incurred, all lost wages, and in the event of a death support for dependents if any and a modest death benefit sufficient to provide a funeral if there are no dependents. Often, in practice, worker's compensation insurance payments tend to be rather stingy. One of the most common big worker's compensation claims these days, especially in office and retail workplaces, is for employees who are seriously injured or killed in crimes at work. Often, a worker's compensation insurer will give an employer a discount if they have a "gun free" zone, because, statistically, doing so greatly reduces the average amount of harm experienced by employees at work. The presence of employees with guns in the workplace, as an actuarial matter, greatly increases the insurance company's risk of having to pay claims.
Discriminatory pricing is a real thing. See this BuzzFeed video on discriminatory pricing as an example on how men's and women's products cost differently, even if the men's product consumes more raw material yet still costs less. However, it's illegal for hotels to charge different rates for their rooms, or for restaurants to charge unfairly or give preferential treatment; they are "public accommodations" protected under the various Civil Rights Acts. However, colleges are exempt from current laws, and it's not just tech colleges; even traditional colleges require different SAT scores for entry based on race and/or gender, and also charge different tuition. They are private accommodations and are therefore generally allowed to do this. For example, you'll have a much harder time getting in to Harvard if you're of a particular race, even if you can afford the tuition, simply because you'll be expected to have a higher SAT score. There was a class action lawsuit in California over this (the students were above 4.0 GPA, yet denied entry based on race), and as a result of law changes afterwards, California institutions can no longer do this. This is not the situation in the rest of the country, as no Federal law yet exists that protects minorities, gender, sexual orientation, etc, in regards to higher education. Also, sometimes merely proving a gap exists might not be noticeable, as companies are also starting to display pages on their websites based on data-mined information about visitors, possibly including information that would otherwise be discriminatory if it were done in person, and hiding the information from the general public. Discrimination is a difficult beast to tame, and until the law is introduced that all products and services must be offered to all consumers at the same price regardless of gender, race, sexual orientation, etc, businesses will continue to find ways to discriminate in legal ways.
The Copyright Office has determined, in chapter 300 of the Compendium of U.S. Copyright Office Practices, on page 36, that the copyright bar extends to works created by the President; Congress; the federal judiciary; federal departments, agencies, boards, bureaus, or commissions; or any other officer or employee of the U.S. federal government while acting within the course of his or her official duties. So the Senator is a US employee for copyright purposes, at least according to the US Copyright Office. Technically, this is interpretation rather than law, and in theory a court might disagree, but if anyone is qualified to speak on this issue, it's the Copyright Office. In my opinion, it is most reasonable to assume that the Copyright Office is correct in their interpretation unless there is case law directly contradicting them. The only question is whether the letter was created by the Senator &quot;while acting within the course of his or her official duties.&quot; I'm not aware of any case law suggesting that constituent building is or is not an &quot;official duty&quot; of a US Senator, and there are reasonable arguments to be made in both directions. On the one hand, the letter is clearly beyond the scope of Congress's lawmaking and oversight Constitutional functions. On the other, the office of Senator is an inherently political office, and a case can be made that campaigning for reelection is part of the job. Perhaps surprisingly, that question was extensively litigated during E. Jean Carroll's first defamation lawsuit against Donald Trump, because Trump argued that his statements about Carroll were within the scope of his employment (and so a defamation claim would be effectively barred under the Westfall Act). To my understanding, the current disposition of that lawsuit is that this is considered a question of fact for a jury to decide (at least according to the Second Circuit). What can be said is who does not hold copyright: The US Senate and/or the US government as a whole. The only way the Senate could acquire copyright in this letter (short of the Senator directly granting it to them) would be as a work made for hire, but the work-for-hire doctrine requires that the work be prepared by an employee as part of their official duties, just like the federal copyright bar. So the Senate cannot acquire copyright in this manner. If anyone owns the copyright, it is most likely the Senator.
In the US what is/are the legal definitions of 'workplace'? Absent a statutory or contractual definition, the plain meaning is adopted "unless doing so would result in absurd, unintended consequences", Hassell v. Bird, 5 Cal.5th 522 (2018). Pulaski v. California OSHA, 90 CalRptr.2d 54, 69 (1999) points out that "'[w]orkplace' is commonly understood as covering any place where work is performed. This is especially true where worker health and safety is concerned". See also [non-precedential] [Covia Communities v. McInerney, (Court of Appeals of California, Dec. 2019)]3 ("The plain meaning of the term [...] does not limit 'workplace' to one location [...]. Nor does the plain meaning of 'workplace' require that the employer own the subject property"). Thus, a person's homeoffice also fits the definition of 'workplace'. Can an employer dismiss a smoker for smoking at home during mandatory homeoffice (and on a teleconference) or would this be perceived as discriminatory? Discriminatory means that the dismissal is motivated by the status of employee being insofar as a smoker rather than his act of smoking during the performance of work. By way of analogy, consider the laws against discrimination based on a person's sexual orientation: The ban on that discrimination does not entitle the employee to engage in sexual intercourse during a teleconference. Most bans on smoking in the workplace are intended to protect other employees' health and safety. From the remark in Pulaski, it follows that smoking at home during mandatory homeoffice time would not impair other employees' health and safety. That being said, the employer might have valid reasons for prohibiting to smoke during a teleconference. For instance, doing so could be perceived as unprofessional, and therefore detrimental to the image of the company.
It may be discrimination, but it is not discrimination based upon any reason that the company is prohibited from engaging in. This conduct is legal in pretty much all U.S. jurisdictions.
In the US, there have been a few cases (EEOC v. The Children's Home, Inc., Michael W. Naylor v. City of Burbank) in the realm of employment discrimination. There may well be more cases which are settled without going to court. There are somewhat more court cases in the UK, see here for a number of relevant categories. In addition, there are significant cases regarding discrimination against gay males, for example Bostock v. Clayton Co, decided by SCOTUS this summer.
Standards-setting by industry groups is not inherently anti-competitive and these groups do not require a licence from the government to operate. They are a prototypical example of &quot;private ordering&quot; (see David J. Teece &amp; Edward F. Sherry, &quot;Standards Setting and Antitrust&quot; (2003) 87 Minn. L.R. 1913, p. 1987). What can be anti-competitive is when a corporation advocates for an element to be included in a standard for reasons other than technical considerations. See e.g. the International Standards Organization's &quot;Competition Law Guidelines.&quot; An example violation is the behaviour of Rambus, Inc.: According to the FTC complaint, Rambus nonetheless participated in JEDEC’s DRAM standard-setting activities for more than four years without disclosing to JEDEC or its members that it was actively working to develop, and possessed, a patent and several pending patent applications that involved specific technologies ultimately adopted in the standards. ... In its liability opinion dated July 31, 2006, the Commission found that, “Rambus engaged in exclusionary conduct that significantly contributed to its acquisition of monopoly power in four related markets.” In another example, Dell Computer Corporation was alleged to have voted to approve the VL-bus standard and certified that the standard did not infringe its intellectual property. After the standard became very successful, Dell asserted an earlier-issued patent against several computer manufacturers using the standard. The FTC entered a consent agreement with Dell: prohibiting Dell from enforcing its patent against those who wanted to use the VL-bus standard. The FTC's order also prohibited Dell from enforcing patent rights in the future when it intentionally failed to disclose those rights upon request of a standards-setting organization.