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.

2016labordayWhy do we celebrate Labor Day?

And should it be celebrated on a Tuesday instead?

It’s one of those holidays that we celebrate, but my guess is that most people have no idea on the answer.  But several (many?) years ago, I touched on this on the blog and I thought it would be fun to resurrect some of those facts.

Indeed, Slate magazine had a good explainer way back in 2010 on the subject.  Turns out Grover Cleveland has a lot to do with it but its origins go back even further than that.

Though President Grover Cleveland declared Labor Day a national holiday in 1894, the occasion was first observed on Sept. 5, 1882, in New York City. A parade was organized by the city’s Central Labor Union, a branch of the Noble Order of the Knights of Labor, a secretive labor union founded in 1869 by a clique of Philadelphia tailors. Historians still debate over whom, specifically, to credit with the idea of a holiday dedicated to the workingman. Some say that Labor Day was the brainchild of Peter J. McGuire, co-founder of the American Federation of Labor. Others argue that Matthew Maguire, the CLU’s secretary, was the holiday’s mastermind and that he doesn’t receive proper credit because he ticked off the mainstream labor movement by running for vice president on the National Socialist Labor Party ticket in 1896.

According to Ted Watt’s The First Labor Day Parade, the September date was chosen because it coincided with a Knights of Labor conference in New York, thus guaranteeing a sizable turnout for the festivities. Though the event wasn’t particularly festive, at least by today’s standards: It resembled a protest far more than a parade, with CLU members required to march in support of the eight-hour workday. (Those who ditched faced fines.)

The U.S. Department of Labor’s website delves into the controversy over how the holiday started as well with this background explainer page too.

More than 100 years after the first Labor Day observance, there is still some doubt as to who first proposed the holiday for workers.

The most fascinating part to me was that it was first celebrated on a Tuesday!

But now, every year, the USDOL devotes new webpages to this day.  And it even posted a video about the work it is doing on the subject. 

And how did such a holiday then become the traditional end to the summer season? Well, I’ll leave that to the experts. But in the meantime, enjoy this list of top 10 workplace songs (plus some alternates).  And be sure to check out the comments on the post where my labor law friends post a “union-friendly” list too including “Bread and Roses”.  

Five years ago during summer, I posted a series of questions for employers to think about during the summer season.  I figured it was time to take a look back at them and update them.

Vacations/Paid Time Off — Vacations are a common part of the summer season. Some companies use “Paid Time Off”, while other companies specifically designate that employees can use vacation time.  The latest trend is the “unlimited” vacation policy that says that the employee can take time off so long as the job is getting done.   But can the employer do anything to regulate these vacation Considerations?

Yes, particularly if the employer’s policies are up to date.  What are some questions for an employer to consider?

  • Do your policies require employees to seek time off in advance?
  • Do you require employees to coordinate with other vacation schedules?
  • Do you have a “use it or lose it” policy on vacations, where employees are required to use vacation time by the end of the year, or do you allow for some carryover? If so, how much?
  • Do you have employees vacation time on a pro-rata basis? In other words, do employees get a day vacation for each month during the year worked?
  • Do your policies dictate that if the employee does take vacation time that has not accrued, what the penalties are?

Friday Sick Days — There’s nothing quite as intoxicating in the summer as the long three-day weekend.  And, with that comes “Friday Fever” .  The symptoms? An otherwise healthy employee calling in on a beautiful sunny Friday.  What are some questions to consider?

  • Does it make sense to change to a simple “Paid Time Off” policy that doesn’t distinguish between vacation and sick time?
  • What documentation do you ask employees for when out on sick days?
  • Do you pay employees for a paid holiday, like Memorial Day, if the employee has been absent the day before or after such a holiday, without approval?

Summer Parties and Office Dress – As with the office party around the December holidays, many companies have corporate outings.  With the warm weather, some might even include swimming or decent amounts of alcohol.  Summer dress codes also tend to allow for more revealing attire. What can the employer consider for these summer outings and summer dress?

  • Are the employers policies on harassment and discrimination up to date and do they make explicit reference to the fact that “work” also includes company-sponsored outings?
  • Are dress codes easy to understand and enforce? Do they provide employees with sufficient guidance on what is expected of them?
  • Have expectations been set up for employees about what is proper behavior and dress at corporate summer functions?
  • Are any summer hires (college or high-school interns) apprised of the rules and regulations of the company, and have employees been advised how to deal with these employees?

These questions are by no means exhaustive, nor are the topics, but with summer in full swing, it’s another way to get through the dog days of summer.

Happy Independence Day

With July 4th weekend upon us, I wanted to first wish all of you a Happy Independence Day!

In the meantime, for those who are still looking for things to work on this weekend, I refer back to post in 2008 that talked about summer-related employment law issues.  Here are a few highlights:

Vacations/Paid Time Off — Vacations are a common part of the summer season. Some companies use “Paid Time Off”, while other companies specifically designate that employees can use vacation time.  But can the employer do anything to regulate it? Yes, particularly the employer’s policies are up to date.  What are some questions for an employer to consider?

  • Do your policies require employees to seek time off in advance?
  • Do you require employees to coordinate with other vacation schedules?
  • Do you have a “use it or lose it” policy on vacations, where employees are required to use vacation time by the end of the year, or do you allow for some carryover? If so, how much?
  • Do you have employees vacation time on a pro-rata basis? In other words, do employees get a day vacation for each month during the year worked?
  • Do your policies dictate that if the employee does take vacation time that has not accrued, what the penalties are?

Summer Parties and Office Dress – As with the office party around the December holidays, many companies have corporate outings.  With the warm weather, some might even include swimming or decent amounts of alcohol.  Summer dress codes also tend to allow for more revealing attire. What can the employer consider for these summer outings and summer dress?

  • Are the employers policies on harassment and discrimination up to date and do they make explicit reference to the fact that “work” also includes company-sponsored outings?
  • Are dress codes easy to understand and enforce? Do they provide employees with sufficient guidance on what is expected of them?
  • Have expectations been set up for employees about what is proper behavior and dress at corporate summer functions?
  • Are any summer hires (college or high-school interns) apprised of the rules and regulations of the company, and have employees been advised how to deal with these employees?

Hopefully, you’ll all be able to enjoy the great weather and the holiday.  Even employment law professionals and human resources managers need a vacation day.

Summer's Here

At long last, Governor Rell has signed a bill this week that I’ve reported on lots before that allows 15-year-olds to once again work in grocery stores and some other limited capacity roles.  The law, which is effective immediately, also retroactively makes legalcourtesy morgue file "golf" any 15-year-olds that have been working in the stores since the previous law expired last year.

The law, which is now codified at Conn. Gen. Stat. 31-23 does a little more than you might originally think: Specifically:

  • 14 year olds can work as a  a caddie or in a pro shop at any municipal or private golf course
  • 15 year olds can work in any mercantile establishment, as a bagger, cashier or stock clerk.

There are restrictions however on the work such as the time of day and the length of the workday.   Golf courses and stores should review the law carefully and set forth proper policies regarding employment of 14 and 15-year-olds.

Other blogs have picked up on the law this including the New Haven Independent.

The Memorial Day Holiday Weekend has turned into the "unofficial" beginning of the summer season (though it hasn’t exactly felt like summer yet in Connecticut).  With that, there are a whole host of issues that also make an annual re-appearance.  Here are a few to think about. 

Vacations/Paid Time Off — Vacations are a common part of the summer season. Some companies use "Paid Time Off", while other companies specifically designate that employees can use vacation time.  But can the employer do anything to regulate it? Yes, particularly the employer’s policies are up to date.  What are some questions for an employer to consider?

  • Do your policies require employees to seek time off in advance?
  • Do you require employees to coordinate with other vacation schedules?
  • Do you have a "use it or lose it" policy on vacations, where employees are required to use vacation time by the end of the year, or do you allow for some carryover? If so, how much?
  • Do you have employees vacation time on a pro-rata basis? In other words, do employees get a day vacation for each month during the year worked?
  • Do your policies dictate that if the employee does take vacation time that has not accrued, what the penalties are?

Friday Sick Days — There’s nothing quite as intoxicating in the summer as the long three-day weekend.  And, with that comes "Friday Fever" .  The symptoms? An otherwise healthy employee calling in on a beautiful sunny Friday.  What are some questions to consider?

  • Does it make sense to change to a simple "Paid Time Off" policy that doesn’t distinguish between vacation and sick time?
  • What documentation do you ask employees for when out on sick days?
  • Do you pay employees for a paid holiday, like Memorial Day, if the employee has been absent the day before or after such a holiday, without approval?

Summer Parties and Office Dress — As with the office party around the December holidays, many companies have corporate outings.  With the warm weather, some might even include swimming or decent amounts of alcohol.  Summer dress codes also tend to allow for more revealing attire. What can the employer consider for these summer outings and summer dress?

  • Are the employers policies on harassment and discrimination up to date and do they make explicit reference to the fact that "work" also includes company-sponsored outings?
  • Are dress codes easy to understand and enforce? Do they provide employees with sufficient guidance on what is expected of them?
  • Have expectations been set up for employees about what is proper behavior and dress at corporate summer functions?
  • Are any summer hires (college or high-school interns) apprised of the rules and regulations of the company, and have employees been advised how to deal with these employees? 

These questions are by no means exhaustive, nor are the topics, but with summer season here, it’s too easy to just "pass" on the issues for a later time.  Considering these issues now, before they arise, can help prevent some a serious summer heartburn later on.

Today is the final day of the General Assembly and the Paid Sick Leave proposal (S.B. 217) is expected to come before the House before the close of business.  But, perhaps in a sign that it is doomed to die a procedural death, it has drawn nearly 25 proposed amendments.  

One of the listed amendments is just a head scratcher.  Specifically, House Amendment 6092 (proposed by House Republican Leader Lawrence Cafero and Rep. Aman) would, in essence, allow employees to use paid sick leave for the first day of summer, the first day of fishing or hunting season, or, and I kid you not, the opening day of baseball season. 

Don’t believe me? Here’s the actual language:  

(e) No employer shall require documentation of an illness, injury or health condition, as described in subsection (b) of this section, if the employee uses a paid sick day on the twenty-first day of the month of June, the first day of a sport-fishing or hunting season authorized pursuant to chapter 26 of the general statutes, or the opening day of the official Major League Baseball season. " 

Thus, under this amendment, an employee could take the day off to attend the Opening Day of baseball season, and the employer would just have to "take the employee’s word" that the day was a paid sick leave day.  The Office of Fiscal Analysis even issued a one sentence report indicating that it would have no "fiscal impact" in the state.

Because the proposal comes from two Republican lawmakers (who, as a group, have expressed skepticism about the bill), I think it’s fair to say that this proposal will go nowhere. Maybe it is just being used to make a point that the paid sick leave bill will be difficult to enforce. But, given the ramifications of the Paid Sick Leave act bill, as I’ve covered before, one has to wonder what they were thinking in taking the time to draft an actual amendment on this topic.

The General Assembly starts again this morning. Grab your popcorn. Should be a fun last day.