After a long day, an employment lawyer (“EL”) had just settled his brain for a brief winter’s nap. Suddenly, he heard from his waiting room such a clatter that he rose from his adjustable ergonomic office chair to see what was the matter. As he threw open the door, he saw a plump old elf whom he instantly knew was Santa Claus himself.
However, Santa did not look at all jolly as he handed EL an official looking document from the United States Department of Labor (DOL). It was a Notice of Claim informing Santa that he was to be investigated for a variety of wage & hour violations.
EL immediately assured Santa that there had to be some mistake since his workshop was located in the North Pole, obviously outside the DOL’s jurisdiction. Santa sighed, explaining that while he had moved his operations there many years ago, he was incorporated in the State of Delaware and maintained an off season headquarters in Santa’s Village, NH.
EL offered that this might indeed be sufficient to justify the DOL’s jurisdiction and suggested that they review the specifics of the claim.
Not So Merry
Santa asked if there might be some mistake because the elves are independent contractors, not employees. EL reminded Santa that the test for employment status generally revolves around who controls the manner and means of performance. “Who assigns the elves their work and tells them how to do it?” EL asked. “Who supplies the tools and equipment”? Who provides the uniforms and those funny, curled up work shoes?” Santa responded that he was in charge of all that.
As EL explained that the elves probably would be considered employees, Santa interjected “Would it help to know that I make the elves buy their own uniforms and shoes?” EL suggested that he should probably keep that to himself during the investigation.
EL then offered that the elves always look pretty happy so he must pay them well. Santa agreed, explaining that he always makes sure that they get their agreed-upon allotment of candy canes and sugar plums every pay day. EL sighed, asked Santa how many elves he employed and began making calculations on possible minimum wage liability.
“How many hours do the elves work each week?” EL inquired. Santa replied that there are approximately 2 billion children in the world and that even if you subtract those who are on the naughty list, it still requires many weeks of around-the-clock work. “Don’t worry”, Santa assured him. “I give them extra candy canes and sugar plums during those long sessions.” EL tapped out more numbers on the calculator.
“Where do you recruit your elves – where do they come from?” EL asked. Santa replied that he never asks those sorts of questions and just assumes that Christmas magic brings them to the North Pole. When Santa looked puzzled in response to a question about I-9’s, EL reached again for the calculator.
“How old are these elves – some of them look pretty young? Santa replied that he was not certain because elves age differently than people. They could be anywhere between 12 and 120. More calculations.
A Little Christmas Cheer?
EL said “At least there is no problem in regard to you Santa. You manage the enterprise and supervise two or more employees so you are an exempt executive as long as you receive a salary of at least $455.00 per week.” Santa just roared “Ho ho ho” and replied, “I don’t need money when there is so much Christmas spirit to keep me happy.” Calculations.
EL leaned over and began to explain Santa’s potential minimum wage and overtime liability when all of a sudden, laying his finger aside of his nose and giving a nod, up the chimney Santa arose. As EL watched him fly off, he heard Santa exclaim, “This is all bureaucratic poppycock, I’m not settling this claim!”
EL returned to his chair and began to doze off, thinking dreamily “I never even talked to him about smoking that pipe and the Clean Indoor Air Act.”
The Minnesota Employment Law Report wishes all of our loyal readers a very joyous holiday season (with appreciation for Clement Moore’s classic poem).