Do you remember your first day at work?

I’m not just talking about a new job.

I mean your first day EVER at a workplace.

For my oldest daughter, today is that day.

She starts as an intern at a local manufacturer of “Highly Complex Machined Parts and Precision Cams for Aerospace, Medical and Commercial Applications” to help her focus on aerospace engineering.

This internship program started a few years ago from our town’s high school and gives students a chance to see the workplace from the inside, all under the supervision of an internship program.

When she came home earlier this week from an “interview” (which I think was more of a guided tour, truth be told), the excitement from her was palpable.

“The machines are so….cool!”

When asked to explain, she said, well, it was just “cool”.  She had a huge smile and couldn’t wait for today to come.   She loves engineering (we’re starting on college applications this fall!) and the chance to have her work at a place where engineering is at its core is pretty, well,  “cool”.

Of course, like any good father (who is also an employment lawyer), I talked to her about some workplace notions — she needed to be on time, to be helpful, and to work hard.

And I told her that she had a right to be treated fairly, to be free of harassment (not that I had any notions that is going to happen here), and that the internship program was intended as a learning tool (and thus ask questions).

Of course, I could’ve pointed her to prior blog posts on internships here, here and here but that would just be asking for the classic teenage eye roll.

I’m wise enough to know that someday she’ll have a tough day at a job.

But I hope she remembers the excitement of Day One.

Because it’s really “cool”.

Summer feels really far away right now.  It’s just been brutally cold here in the Northeast.

(How cold? Too cold for skiing.  That’s brutal by any stretch.)

But summer WILL eventually come. So we’re told.

So the news late Friday that the U.S. Department of Labor was scrapping the test it had released just a few years ago about interns probably went a bit unnoticed.

At first blush, it might look like a big deal. But, in reality, not so much because the federal courts here (including New York as well) had already adopted the new test that the USDOL announced on Friday.

I’ve covered both before, but the TL;DR version is this: The DOL is going to the “primary benefit” or “primary beneficiary” standard that had been outlined in 2015 by the Second Circuit.

Law360 summarized it pretty well here:

Under the [Second Circuit] test, courts have analyzed the “economic reality” of interns’ relationship with their employer to determine which party is the primary beneficiary of the relationship. The standard has been applied in various cases where courts have ruled that interns in a variety of industries, as the primary beneficiaries of their internships, don’t qualify as employees for FLSA purposes and can’t collectively pursue claims for misclassification and wage violations under that statute.

That said, employers in Connecticut don’t have it easy. As I noted in a prior post as well, Connecticut passed anti-discrimination law protection for interns that uses another test too.  That law better tracked the old DOL interpretation which has now been overturned.   That said, that law does not apply to wage and hour claims, only discrimination claims.

So, what does it mean? Employers have a tricky time structuring internships to meet both federal and state law guidance. The “primary beneficiary” test is going to carry the day in many instances, but employers that often use interns should still consult their legal counsel to see if there are any particular issues that need to be addressed for your company.

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

Malloy Signs Intern Anti-Discrimination Bill
Malloy Signs Intern Anti-Discrimination Bill

Capitol Watch — The Hartford Courant’s political site – tweeted the following yesterday:

And a review of the Governor’s website reflects that approval in the bill notification release. (I read them so you don’t have to!)

So, what does that mean for employers? Well, I’ve covered the bill before so I won’t recap everything here.

But the bill’s provisions now become effective October 1, 2015.  Thus, employers who regularly use interns should update their employee handbook and anti-harassment provisions to explicitly cover interns.

One of the other things to consider that hasn’t been discussed much is the extent to which the bill’s definition of “intern” may get adopted in the context of establishing whether an intern is really an “employee” for wage/hour purposes.

What do I mean? Well, back in 2012, I talked a lot about how employers could properly structure internship programs. In that post, I noted that there were six factors that the U.S. Department of Labor would look at:

  1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
  2. The internship experience is for the benefit of the intern;
  3. The intern does not displace regular employees, but works under close supervision of existing staff;
  4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
  5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
  6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

Now, let’s compare this with the definition of “Intern” in the new anti-discrimination bill.  An intern is defined as an “individual who performs work for an employer for the purpose of training, provided”:

  1. the employer is not committed to hire the individual performing the work at the conclusion of the training period;
  2. the employer and the individual performing the work agree that the individual performing the work is not entitled to wages for the work performed; and
  3. the work performed:
    1. supplements training given in an educational environment that may enhance the employability of the individual,
    2. provides experience for the benefit of the individual,
    3. does not displace any employee of the employer,
    4. is performed under the supervision of the employer or an employee of the employer, and
    5. provides no immediate advantage to the employer providing the training and may occasionally impede the operations of the employer.

If you track each item carefully, you’ll notice that they are actually fairly similar. That’s a good thing.  While there are subtle differences, it’s unlikely that those differences will be meaningful in their application.

As a practical matter, that means employers that adopt the defintiion of “intern” in the new state statute are likely to be following the federal interpretation as well, reducing the risk of a wage/hour claim as well.

The bottom line, however, is that employers who just use interns without much worry as to the liability that using interns may create should rethink their practices. The new law is yet another area where new rules will make using those interns may expose employers to possible claims.  Is it a small risk? Perhaps. But small risks can turn into big ones if employers aren’t mindful.

generalassemblyThe dust has finally settled from the close of the Connecticut General Assembly on Wednesday.  And it’s time to take a look at the last few days to see what employment law bills passed.

(I’ll tackle the changes that have been made to the CHRO in a post later today.)

As I’ve noted in prior posts (here, here and here), several employment law-related bills had already passed including: a bill regarding online privacy rights of employees (signed by Governor); a bill allowing double damages in wage/hour cases awaiting Governor’s signature); a bill protecting interns from discrimination and harassment (same); and a bill introducing labor history into school curriculum (same).

In the last days, however, a closely-watched bill that prohibits employers from enacting rules that prevent employees from sharing information about their wages, passed. It also awaits the Governor’s signature.

The bill has been amended since it was first introduced but still places additional restrictions on employers. As a result, employers should consider updating their policies and revisiting their approach to salary discussions.

As recapped by the General Assembly, the bill accomplishes the following:

This bill prohibits employers, including the state and municipalities, from taking certain steps to limit their employees’ ability to share information about their wages. Under the bill, such sharing consists of employees under the same employer (1) disclosing or discussing the amount of their own wages or other employees’ voluntarily disclosed wages or (2) asking about other employees’ wages. Specifically, the bill bans employers from (1) prohibiting their employees from such sharing; (2) requiring employees to sign a waiver or document that denies their right to such sharing; and (3) discharging, disciplining, discriminating or retaliating against, or otherwise penalizing employees for such sharing.

The bill allows employees to bring a lawsuit to redress a violation of its provisions in any court of competent jurisdiction. The suit must be brought within two years after an alleged violation. Employers can be found liable for compensatory damages, attorney’s fees and costs, punitive damages, and any legal and equitable relief the court deems just and proper.

The amendment to the bill that was passed limits an employee’s sharing of another employee’s wage information to information that (1) is about another of the employer’s employees and (2) was voluntarily disclosed by the other employee.

I’ve noted before that I think many of the provisions are duplicative of federal law and a concern that there isn’t a big public policy need to create a new cause of action here.

But it’s a bit too late for that. The Governor proposed this bill so he is very likely to sign it.  The provisions go into effect on July 1, 2015.  (Contrast that with other bills that go into effect on October 1, 2015.)

Another bill that passed in the closing days was House Bill 6707 which allows employers to fire employees for failing some off-duty drug tests without impacting their unemployment rating.  It awaits the Governor’s signature.  As recapped by the General Assembly:

This bill expands the circumstances under which a private-sector employer can discharge or suspend an employee without affecting the employer’s unemployment taxes. It creates a “non-charge” against an employer’s experience rate for employees discharged or suspended because they failed a drug or alcohol test while off duty and subsequently lost a driver’s license needed to perform the work for which they had been hired. (The law disqualifies a person from operating a commercial motor vehicle for one year if he or she is convicted of driving under the influence (DUI.)) In effect, this allows the discharged or suspended employee to collect unemployment benefits without increasing the employer’s unemployment taxes.

Several other bills failed in the final days including a low wage penalty, paid family & medical leave, a minimum work week for janitors, limits on criminal background checks and on credit reports,

Overall, it was a busy year for the legislature. For employers, the next few months should keep you busy with a review of your existing policies and procedures to ensure compliance with these new laws.

These are not the interns you are seeking
These are not the interns you are seeking

Believe it or not, harassment against summer interns isn’t directly prohibited under Connecticut law.  (But treating them like employees without paying them is against the law.)

This is not, however, a column about the best ways to harass your interns.  Indeed, regardless of the law, it’s bad in so many ways.  (And the CHRO has taken the position — yet to be tested in courts — that interns are already covered.)

But all that is about to change. Earlier this week, the Connecticut General Assembly passed legislation (Senate Bill 428) that would make it illegal to do so and allow those interns to file claims not only with the Connecticut Commission on Human Rights & Opportunities but ultimately in Superior Court too.

The bill, which awaits the Governor’s signature, would go into effect October 1, 2015 and has several important aspects that employers should be aware of now.  The bill follows a trend in California, New York, and other states to protect interns more explicitly under the law.

So, who IS an intern?

An intern is defined as someone who performs work for an employer for the purpose of training, provided:

  1. the employer is not committed to hire the person performing the work at the conclusion of the training period;
  2. the employer and the person performing the work agree that the person performing the work is not entitled to wages for the work performed; and
  3. the work performed meets five conditions.

Those five conditions are that the work:

  • supplements training given in an educational environment that may enhance the employability of the person;
  • provides experience for the benefit of the person;
  • does not displace any employee of the employer;
  • is performed under the supervision of the employer or an employee of the employer; and
  • provides no immediate advantage to the employer providing the training and may occasionally impede the operations of the employer; and

If you’ve seen some or most of these factors before, that’s because the U.S. Department of Labor has outlined something similar in its definition of interns.

And what exactly is prohibited?

Well, for most part, the things that are prohibited against employees are prohibited against interns.

For example, the bill prohibits discrimination based on an intern’s race, color, religious creed, age, sex, gender identity or expression, sexual orientation, marital status, national origin, ancestry, present or past history of mental disability, intellectual disability, learning disability or physical disability, including, but not limited to, blindness. The bill’s prohibition covers hiring, firing, and advertising internships.

It also prohibits sexual harassment against interns.

The bill also bans an employer from retaliating against an intern for filing a complaint or testifying in a proceeding about a discrimination complaint.

For employers, this new law (when signed by the governor) should lead to a few steps being taken:

1) Amend your policies and procedures to cover interns. That includes your anti-harassment policies.

2) Educate your managers and your interns on what is appropriate in the workplace.  It is particularly important for the interns who may have had little workplace experiences before this.

3) If you have insurance, ask your insurer whether it will cover claims made by interns (who are not, by the way, defined as employees).

4) Consider the risk factors of continuing an internship program.  If these interns can now bring suit against your company, I have no doubt that some companies may say that the risk is too high.

There are still unanswered questions about this. If an unpaid intern gets “fired”, what are his or her damages? There is no back pay so then what? Reinstatement? And if the employer has the right not to hire the person after the training period, then what?

Fortunately, this bill seems to be in search of a problem that doesn’t seem particularly rampant.  In the testimony in support of the bill, not a single example of intern discrimination or harassment was identified, even by the Connecticut Commission on Human Rights & Opportunities.

That said, stay tuned for more as the particulars of this bill get incorporated into everyday practice.

 

congresswhouseI confess that when I first heard the story last week that some Capitol Hill lawmakers were refusing to meet alone with female subordinates, I didn’t pay much attention to it.   Lawmakers just being lawmakers.

(I was also reminded of the old Billy Joel song, I Don’t Want to Be Alone Anymore, but I digress….)

Over the weekend, I was listening to Slate’s Political Gabfest podcast (which I highly recommend) which talked about the story more in detail.

And the more I heard, the more I wondered whether any private employers adopted this practice.

For companies, though, this type of practice is just trouble waiting to happen.

First the backstory. During a recent survey, female staffers reported on sexist behavior at Congress.  Some inadvertent.  But some of it was not.  According to the Washington Post story on it:

The worst transgression, which multiple women reported (and National Journal’s interviews with male colleagues confirmed), was a more deliberate inequity: In some offices, only male staffers can spend time one on one with their (male) bosses.

“There was an office rule that I couldn’t be alone with the congressman,” one anonymous staffer reported.

Another: “I was not allowed to staff my boss at certain events without another male staffer present — because I was a woman.”

And another: “My former boss never took a closed-door meeting with me in the span of working for him, off and on, over a 12-year stretch. Even when I was in a position of senior leadership.”

One woman said she was told she could no longer join her GOP congressman boss at events because the chief of staff decided her presence in so many photos was “not appropriate.” In another case, a similar call was made at the behest of the wife of an unnamed Southern Republican, because the Mrs. thought such interactions looked “unseemly.”

Now, this isn’t the first time I’ve heard of such an isolation rule. In schools, for example, teachers are often taught not to be alone with students.  And in sex harassment prevention training course, we sometimes talk about how it’s not a good idea for co-workers at a conference to meet up in one’s hotel room or to force employees to share a hotel room to “cut costs”.

But obviously, this Capitol Hill story goes much further.  And as the Slate Political Gabfest folks correctly note, it may very well be unlawful discrimination — at least as applied to the private workplace.

As one employment law attorney noted in a story for the National Journal:

[The attorney] worries that limitations on what female staffers could do in a congressional office compared to male staffers would hinder hiring decisions. And even for women who do get hired, the lack of one-on-one time could prevent them from moving up within their offices. “You’re not being perceived as a professional,” [she] said.

“So much happens in creating trustful relationships and if you can’t develop a trustful relationship where you’re having some one-on-one time, as the men apparently are getting—I can see many reasons why this is a terrible idea, terrible in the sense of discriminatory,” [the attorney] added, calling the practice “clearly unlawful.”

In short, such a practice is just a bad idea.  If a supervisor is worried about perceptions, he or she has a few choices.  Among them: 1) Refuse to meet with ANY subordinate alone, thereby treating everyone the same; or 2) Meet with subordinates of both genders alone and just avoid any appearance of impropriety.

And a supervisor can do common sense things too — like avoid meeting a subordinate in a hotel room during an off-site conference to avoid the appearance that anything other than work behavior is expected.

But let’s call treating employees differently because of their gender for what it is: Discrimination.

While the temperatures this morning didn’t feel much like summer, the season is upon us. And be honest — when you think of summer do you think a) hot dogs or b) wage & hour issues for interns? If you answered b), you probably need some help.  Which is why my colleague Jarad Lucan has drafted this timely post to remind us all about the rules of the road for interns.

While we have discussed the rules on unpaid interns in the past, it seems that every summer a court gives employers a reason to review their internship programs to make sure that they comply with the requirements of the Fair Labor Standards Act (FLSA).

Recently, a federal judge in the Southern District of New York granted a conditional certification of a possible nation-wide class action involving current and former unpaid interns of Warner Music Group.

Essentially, the interns claim they were entitled to the minimum wages and overtime because they performed similar work as actual employees, did not receive academic credit, and Warner derived a direct benefit from their work.

In order to assist employers with designing a valid unpaid internship program, the Department of Labor (DOL) has outlined six factors to determine whether an intern is exempt from wage an hour laws.  We’ve touched on them before but they are worth repeating here:

  • The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
  • The internship experience is for the benefit of the intern;
  • The intern does not displace regular employees, but works under close supervision of existing staff;
  • The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
  • The intern is not necessarily entitled to a job at the conclusion of the internship; and
  • The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

But, in plain English, what do these factors really mean?

Put simply, the first two factors mean that the primary purpose of your internship program must be for the intern to learn, with performing work being only secondary.

The third, fifth, and six factors mean that your internship program should clearly set out which current employee will oversee the intern, and that the intern will not be offered a job following completion of the program.

The fourth factor means that the intern is essentially getting in the way of your operations. As a reminder, all six factors must be met for your unpaid internship program to pass scrutiny.

No doubt hiring unpaid interns is now a risky endeavor. If you have some this summer, make sure that they meet the DOL’s guidance on the subject.  Once you’ve done so, you can enjoy the summer.

The word “Interns” has turned into a dirty word for employment lawyers lately. But before you panic, it’s time to separate fact from fiction.

Now, it IS true that a few years back, the United States Department of Labor signaled employers that it would start cutting down on the practice that some employers used of hiring unpaid interns to do real work instead of paying employees.  (And yes, I covered THAT too.)

The USDOL released a fact sheet on the subject too at the time. But over the last two years, we just haven’t seen an epidemic of cases about this issue.

That’s not to say that there haven’t been notable cases; but misclassification of employees remains a much larger issue for employers to be concerned about. 

Nevertheless, as employers start to think about their summer plans, it’s important to think about how you structure your internship program.    How so? By reviewing six factors that the USDOL will look at too.

  • The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
  • The internship experience is for the benefit of the intern;
  • The intern does not displace regular employees, but works under close supervision of existing staff;
  • The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
  • The intern is not necessarily entitled to a job at the conclusion of the internship; and
  • The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

Here’s a simpler “test”: If you’re bringing on unpaid interns to do work in place of regular employees, it’s probably not going to fly.

An “intern” doesn’t have to be a dirty word.

 

With the Department of Labor’s crackdown on unpaid interns continuing this year (for background, see my prior post), it seems appropriate to delve into the topic in some more detail.  

Fortunately, I’ve been asked to join The Proactive Employer in a podcast on the topic on Friday morning.  Details and signups are available here. 

So what will we cover in the podcast? In this installment, we’ll be discussing internships, the potential risks of unpaid internships, and how employers can provide internship opportunities while minimizing litigation risk.  The host is Dr. Stephanie Thomas, who the Director of the Equal Employment Advisory and Litigation Support Division(EEA/LS) of MCG International.

In the meantime, if you’re interested in getting started on this issue, take a look at this publication from the Department of Labor, which addresses a whole host of topics.