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IMG_7496 (2)Did you enjoy the fireworks last week?

I’m not talking about the real Independence Day fireworks; rather, it’s a new Second Circuit decision that should have employment lawyers popping this morning.

For a while, we’ve been talking about interns.  Indeed, back in 2013, I talked about how a wage/hour case involving interns on the movie “Black Swan” had the potential to change how employers use interns.

In that case, a federal district court judge essentially adopted a six-factor test used by the U.S. Department of Labor to determine if an intern was really an employee.

Flash forward to last Thursday.  In somewhat of a surprise, the Second Circuit — which covers cases in Connecticut — reversed that federal district court court’s decision and rejected the DOL’s six-factor approach.

In its place, the court adopted what Jon Hyman properly termed, a “more flexible and nuanced primary-benefit test.”

[T]he proper question is whether the intern or the employer is the primary beneficiary of the relationship. The primary beneficiary test has two salient features. First, it focuses on what the intern receives in exchange for his work.… Second, it also accords courts the flexibility to examine the economic reality as it exists between the intern and the employer.…

In the context of unpaid internships we think a non‐exhaustive set of considerations should include:

1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.

2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands‐on training provided by educational institutions.

3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.

4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.

5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.

6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.

7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.…

Continue Reading DOL’s Internship Test Rejected by Second Circuit Creating Conflict with New Connecticut Law

Chief Justice Roberts also addressed ABA to discuss the Magna Carta’s 800th anniversary

One of the roles that I relish is being a member of the American Bar Assocation’s House of Delegates for several terms now.   The ABA adopts certain policies at its Annual Meeting and uses its bully-pulpit to try…

My kids are at overnight camp this week and of course, my brain never stops thinking about cute employment law lessons that can be gleaned from everyday experiences.

So, you may wonder: do camp counselors who, after all, spend 24/7 with the kids, have to be paid minimum wage? And what about babysitters that you…

In the wake of the United States Supreme Court’s ruling in the Hobby Lobby case, holding that the Religious Freedom Restoration Act provides protection to closely held corporations to refuse, for religious reasons, to provide birth control methods and services to employees under the Affordable Care Act’s contraceptive mandate, the issue of accommodating an employee’s…

A reminder: Employees are entitled to overtime for work over 40 hours a week, unless an exemption applies. For so-called white collar workers, there are three main exemptions: administrative, professional and executive.  Each of these categories looks at whether the employee had certain covered “duties” (known as the “duties” test) and a minimum guaranteed weekly salary (known as the “salary” test).

Under federal law (but not state law), there is also an exemption that allows employers to not pay overtime to “highly compensated” employees over $100,000 a year.   These rules have been in place for nearly 10 years, but the regulations are far from clear.

A recent case out of the Second Circuit (Anani v. CVS) examined these exemptions and regulations. You can download the case here.

The case comes down to a fairly arcane part of the federal regulations addressing whether a “reasonable relationship” exists between the guaranteed amount an employee is supposed to receive and the amount actually earned.  The Second Circuit concludes that this section does not apply when workers make over $100,000 under the FLSA.

It’s a fairly straightforward conclusion because to apply that language to highly compensated workers would render the rest of the regulation pretty meaningless. Thus, a win for the employer.Continue Reading Second Circuit Leaves Some FLSA Issues Up For Grabs

Yankee Stadium will never be the same

On the surface, the premise of this column would seem to be a thinly-veiled attempt to work in the retirement of the greatest closer that ever played baseball — Mariano Rivera — into a post.

But I’ve actually had a few discussions about the…

In helping employers on wage and hour issues, I’m struck sometimes by the occasional failure to maintain proper records on their employees.

For employers, payroll companies now offer to help an employer with such records and can often provide some of the information once the employer shares it with them.

The Connecticut Department of Labor lists eight types of wage & hour records that all employers, regardless of size must keep. They are:

  • The employee’s name and address.
  • The employee’s occupation.
  • The total daily and total weekly hours worked, showing the beginning and ending time of each work period, computed to the nearest unit of 15 minutes.
  • The total hourly, daily or weekly basic wage.
  • The overtime wage as a separate item from the basic wage.
  • Additions to, or deductions from, wages each pay period.
  • Total wages paid each pay period.
  • Working papers/statements of age for each employee under the age of 18.

The employer must maintain these records on their premises, though I haven’t heard of the Department coming down on an employer when such records are maintained electronically in the “cloud” — which is technically off-site.

But employers should consider going beyond the minimum.  If the Department of Labor does decide to do an investigation, it is likely that they will seek the following eight types of documents, at a minimum:
Continue Reading Sixteen Types of Wage & Hour Records Employers Need to Keep