The 100 Absolutely Unbreakable Laws of Business Succes

Brian Tracy has traveled and worked in more than 30 countries, studying business, economics, philosophy, psychology, history, and entrepreneurship. The 100 Absolutely Unbreakable Laws of Business Success is based on those years of study and provides a wide-ranging view of the things that make some businesses -- and lives -- work, and others fail. The author provides a wealth of practical advice distilled into 100 easy-to-follow laws covering the major areas of work and business, such as leadership, money, economics, selling, negotiating, and time management. He includes numerous examples to show how each law functions in the real world and practical guidance on applying it to one's life and work.

Deportation Lawyer

Question: Attorney Lerner, I understand that you are a deportation attorney. Can you describe what qualifications you have to represent clients in deportation proceedings? Answer: Regarding Immigration Law, in 2000, I passed a rigorous examination and extensive experience requirements by the State Bar of California, Board of Legal Specialization. My firm handles all types of deportation cases from all over the United States. It is critical that you get an expert attorney to represent you for the deportation and removal cases, not just somebody who happens to be local. At the deportation or removal hearing, depending on the case, as a deportation lawyer, I can apply for many forms of relief to try to win the deportation case against the client. Some of these forms of relieve include political asylum, withholding of removal, and convention against torture, registry, adjustment of status, cancellation of removal, termination for deferred action, prosecutorial discretion, administrative closure among others. Question: So what does a deportation attorney do at the actual hearings? Answer: At the deportation hearing, a deportation attorney will be able to perform and guide the client through the entire through the process, the master calendar hearing, the contested hearings, and the individual hearings. Keep in mind that the master hearing is very important as it determines in many instances the direction of the case and should not be taken lightly. The contested hearings are very important as well as they will determine whether or not the charges against you will be sustained and whether the charge of removability will be issued. Finally, the individual hearing is critically important as this is the trial on the particular matter. There will be witnesses, testimony, evidence and other matters which will comprise of the entire trial. After the trial, the Immigration Judge will make a decision upon which you will either win or have to appeal. In any case, it is crucially important to have a qualified deportation attorney who is an expert and has years of experience as a deportation lawyer. Question: How many years of experience as a deportation lawyer do you have? Answer: As a deportation attorney, I have nearly 20 years of experience. With each case, I am better able to handle and help the client who is either in detention or fighting the case while not being detained. Question: How can you take deportation cases all over the United States? Answer: Because Immigration Law is Federal Law, an experienced deportation lawyer who is admitted as an attorney, can practice anywhere in the United States. As for deportation hearings in other States, I travel all over the United States to help clients. Many times, other than the Individual Hearings, the Immigration Judge will allow telephonic hearings. Since deportation and removal cases are very complicated, the client absolutely does wants an immigration attorney who is an expert deportation lawyer. There is too much at stake to hire somebody because they are local or simply charging a lot less money.

Latest DOL Opinion On Donning and Doffing, Not So Fast - 6th Circuit Says

Although it may no longer be true, donning and doffing cases at one time were clearly the big ticket FLSA collective action. And for those still fighting those fights who have been concerned about the thumb that the DOL put on the scale with their June 16 Administrator's Interpretation (No. 2010-2), which reversed course from two earlier opinion letters issued this decade (yes, Obama administration vs. Bush administration), you now have some very favorable authority from yeseterday's decision by the 6th Circuit in Franklin v. Kellogg Co. (6th Cir. 8/31/10) [pdf].

Looking to determine the meaning of the phrase "changing clothes" in § 203(o) of the FLSA, the Court surveyed the DOL's view of that portion of the FLSA and found the following:

• 1997 Opinion Letter - "clothes" in section 3(o) does not encompass protective equipment and section 3(o) is an exemption to the FLSA that should be read narrowly;
• 2001 Opinion Letter - reiterated the position taken in the 1997 Letter;
• 2002 Opinion Letter -  "changing clothes" in section 3(o) refers to the putting on and taking off the protective safety equipment typically worn in the meatpacking industry;
• 2007 Opinion Letter - reiterated the position of the 2002 Letter;
• June 16, 2010 Administrator's Opinion - section 3(o) exemption does not extend to protective equipment worn by employees, that is required by law, by the employer, or due to the nature of the job.

Looking at this revolving door of opinions, the Court gave them what seems to me to be the appropriate amount of deference ---none:

First, "an agency interpretation of a relevant provision which conflicts with the agency's earlier interpretation is entitled to considerably less deference than a consistently held agency view. [cite omitted] The DOL's position on this issue has changed repeatedly in the last twelve years, indicating that we should not defer to its interpretation. Additionally, we find its interpretation to be inconsistent with the language of the statute.

For the fans of burden of proof (the most important vestige of employment at will), the Court addressed the question of whether section 3(o) is an exemption to the FLSA where the employer has the burden or a definition, where the employee has the burden. Although it does so, the Court really did not have to look much further than which section of the FLSA section 3(o) appears, is it § 203, Definitions or § 213, Exemptions?

As it appears in §203 not §213 the Court placed the burden on the employee, siding with the 5th and all other circuits which have decided the question, except for the 9th Circuit.

Up to this point the opinion is very employer friendly, but at this point it diverges for some other holdings:

• in determining whether changing clothes can be a "principal activity" which thus launches the "workday," the Court held that whether or not the time was compensable does not impact the determination;
• here, changing clothes was a "principal activity".

Although there was a dissent, it did not seem to be over either of these principal issues. Still given the circuit split, it is not inconceivable that it could take the next step up.

If it does, given the somewhat limited nature of section 3(o) which requires a collective bargaining agreement to be applicable, the most important point could well be the deference given to agency interpretations. While it may always have been the case, it is now more clear than ever, particularly in the field of labor and employment law, regulatory agencies are much more bound to an Administration's viewpoint than stare decisis.

My own view is that is not a very good way to run a railroad, but no one has asked my opinion, nor are likely to give it much weight.  It is however a fact of life, and if we are going to deal with it, we might as well know exactly what view the courts are going to give such changing views. My guess hope is that it is the same as the 6th Circuit here.