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APRIL 2016 FOGHORN 21 QUALITY FERRIES FROM THE VIGORKVICHAK TEAM 144-CAR FERRY KVICHAK 400 PASSENGER-ONLY-FERRY 206.545.8485 KVICHAK.COM SALESKVICHAK.COM 1.855.VIGOR99 VIGOR.NET MARINESALESVIGOR.NET LEGAL hour and overtime laws employer is defined as encompassing any person who acts directly or indirectly in the interest of an employer to any of the employees of such employer. In applying this standard the Court outlined the factors it will consider in determining if in the economic reality a particular individual should be deemed to have employer status and thus be a possible target for personal suit whether the alleged employer 1 had the power to hire and fire the employees 2 supervised and controlled employee work schedules or conditions of employment 3 de- termined the rate and method of payment and 4 maintained employ- ment records. . . . .No one of the four factors standing alone is dispositive . . . and any relevant evidence may be examined so as to avoid having the test confined to a narrow legalistic defini- tion. In short if you are the wage and hour program decider you can be a defendant. To passenger vessel owners espe- cially smaller operators in which the owner is sometime chief cook and bottle washer the message is sobering. If there is a wage hour overtime or FMLA violation of law the usual rules about being protected by the corporate entity format will not apply. This treatment is different from most federal anti-discrimination laws in which personal liability is usually not a risk. It has always stood as a healthy practice to have an employers wage and benefit practices audited by knowledgeable employment counsel to assure compliance with the often complicated and counterintuitive em- ployment laws. This case is a strong reminder that doing so may be smart in the protection not only of the business but also in the protection of an owners own personal assets. One final note is important the Department of Labor now has proposed regulations that would increase the mandatory salary which must be paid to an executive or ad- ministrative employee to be classified as overtime exempt. Although a final articulation of the new standard is yet to be issued it is anticipated that by the end of the year 2016 that mandatory salary level will be increased to approx- imately 54000 per year. Especially in view of the personal liability confirmed in this recent case vessel owners are well advised to keep current in moni- toring wage and hour law changes in 2016. n About the Author Steve Bers is an attorney at Whiteford Taylor and Preston in Baltimore MD and PVAs General Counsel. He is a frequent FOGHORN con- tributor as well as a popular speaker at the PVA meetings and conventions. He also assists PVA members through the PVA Legal 410-347-8724 or sberswtplaw.com.