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Home > Federal Law Articles > FLSA > Employees Covered (FLSA)

Articles Discussing What Employees Are Covered By The FLSA.

The Misclassification Conundrum: US DOL Attempts to Bring Clarity and Predictability to the Economic Reality Test, but Should Companies Rely Upon It?

January 13, 2021 | Ford Harrison Filed Under: Employees Covered (FLSA)

Determining who is an employee seems like a simple concept, but actually requires a complex analysis that varies depending on the applicable state and statute.

DOL Releases Proposed Regulation on Independent Contracting

September 23, 2020 | Littler Filed Under: Employees Covered (FLSA)

Littler

On September 22, 2020, the U.S. Department of Labor (DOL) released a long-anticipated proposed rule addressing when a worker is an employee or independent contractor under the Fair Labor Standards Act (FLSA).

CDC Issues Interim Guidance to Help Employers Plan and Respond to Coronavirus Disease

February 19, 2020 | Hirsch Roberts Weinstein LLP Filed Under: Employees Covered (FLSA)

This month, the Center for Disease Control and Prevention (“CDC”) published Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (officially named COVID-19 by the World Health Organization) to help prevent workplace exposures to acute respiratory illnesses, including COVID-19. While much is unknown about COVID-19 and how the disease spreads, COVID-19 is spreading person-to-person in China and some limited person-to-person transmission has been reported in other countries, including the U.S.

Employee Volunteer Community Service: Compensable or Not?

September 12, 2019 | Nexsen Pruet Filed Under: Employees Covered (FLSA)

Many employers provide employees with the opportunity to participate in community service projects during their off-duty time, like mentoring youth, cleaning waterways, painting and repairing shelters, and building affordable housing.

Fifth Circuit Finds Directional Drillers Are Independent Contractors

March 12, 2019 | Littler Filed Under: Employees Covered (FLSA)

Littler

On February 28, 2019, the United States Court of Appeals for the Fifth Circuit issued an important decision involving whether contract workers in the oil patch were entitled to overtime. In William Parrish, et al. v. Premier Directional Drilling, L.P., No. 17-511089, the Fifth Circuit reversed a trial court decision and rendered judgment in favor of Premier Directional Drilling, L.P. (“Premier”). Following a fact-intensive inquiry, the Fifth Circuit concluded that the directional drillers were not employees and not entitled to overtime under the Fair Labor Standards Act (“FLSA”).

Sixth Circuit Rules that Moonlighting Police Officers are Employees, not Independent Contractors

February 20, 2019 | Jackson Lewis Filed Under: Employees Covered (FLSA)

Jackson Lewis

The Sixth Circuit Court of Appeals recently concluded that all officers of a private security and traffic control company were “employees,” rather than independent contractors under the Fair Labor Standards Act (“FLSA”). The case is Acosta v. Off Duty Police Services, Inc., Nos. 17-5995 and 17-6071 (6th Cir. Feb. 12, 2019).

Second Circuit Sheers Cosmetology Student’s Claims in Intern-or-Employee Case

February 11, 2019 | Jackson Lewis Filed Under: Employees Covered (FLSA)

Jackson Lewis

Concluding that a student at a for-profit cosmetology academy was the “primary beneficiary” of the hours he spent training at the academy’s salon, the Second Circuit Court of Appeals has upheld the district’s court’s determination that the student was an intern, and not an not employee entitled to minimum wage or overtime under the FLSA or the New York Labor Law. Velarde v. GW GJ, Inc., 2019 U.S. App. LEXIS 3536 (2d Cir. Feb. 5, 2019). The Second Circuit has jurisdiction over New York, Connecticut and Vermont.

Independent Contractor Misclassifications is Focus of New Jersey-U.S. Labor Department Partnership

August 13, 2018 | Jackson Lewis Filed Under: Employees Covered (FLSA)

Jackson Lewis

Demonstrating a heightened focus on worker misclassification, the New Jersey Department of Labor has entered into a memorandum of cooperation with the U.S. Department of Labor with respect to enforcement actions related to independent contractor misclassifications.

Dear Littler: Do We Have to Pay Our Summer Interns?

May 15, 2018 | Littler Filed Under: Employees Covered (FLSA)

Littler

Dear Littler: I work in the corporate office of a national retailer. We plan to hire several local student interns to work for us this summer, primarily in accounting and marketing. We enjoy sponsoring this program, and it works out well. In fact, in the past, we have hired a handful of summer interns as full-time employees after they graduated. We intend to offer some basic training on specific job duties, along with some broader exposure to various departments and our industry. Interns will likely assist our regular staff with “real” work, under close supervision. We like our internships to be unpaid because then we can take on more students and put the funding into memorable program activities. But now I’m wondering: should we be paying these interns?

Second Circuit Provides Guidance on Intern-Employee Test

March 5, 2018 | Ford Harrison Filed Under: Employees Covered (FLSA)

Executive Summary: On December 8, 2017, the United States Court of Appeals for the Second Circuit (which has jurisdiction over federal district courts in Connecticut, New York and Vermont) ruled in favor of an employer, holding that six unpaid interns were not “employees” for purposes of the Fair Labor Standards Act (FLSA). See Wang v. Hearst Corp. To reach its conclusion, the court used the flexible “primary beneficiary test” it first promulgated in Glatt v. Fox Searchlight Pictures. The court’s application of the test in Wang created some confusion for employers.

DOL Adopts New Test for Determining When Interns are Protected by FLSA

January 31, 2018 | Nexsen Pruet Filed Under: Employees Covered (FLSA)

This month, the Department of Labor (DOL) announced that it will be using a new method to determine whether interns and students employed by a for-profit employer should be paid employees under the Fair Labor Standards Act (FLSA) and, thereby, entitled to minimum wage and overtime pay.

DOL Updates Guidance on Unpaid Interns, Embracing Circuit Courts’ Approach

January 22, 2018 | Littler Filed Under: Employees Covered (FLSA)

Littler

The U.S. Department of Labor recently announced a significant change in its interpretation of the Fair Labor Standards Act (FLSA) with respect to interns. The FLSA, of course, regulates an employer’s duty to pay minimum wage and overtime compensation to its employees. For years, the DOL has employed a six-factor test to determine whether these requirements apply to interns working for private employers.

Labor Department Adopts ‘Primary Beneficiary’ Test for Determining Employee Status of Interns, Students

January 17, 2018 | Jackson Lewis Filed Under: Employees Covered (FLSA)

Jackson Lewis

The Department of Labor has decided to align its analysis under the Fair Labor Standards Act (FLSA) of the intern-vs.-employee determination with that of the majority of federal appellate courts to have addressed the issue, abandoning the stricter Obama-era analysis. The agency announced on January 5, 2018, that it was adopting the “primary beneficiary” test to determine the employee status of interns and students.

U.S. DOL Endorses Primary Beneficiary Test for Internships

January 8, 2018 | Ford Harrison Filed Under: Employees Covered (FLSA)

Executive Summary: Recently, the US Department of Labor (DOL) announced that it will adhere to a new test for determining whether interns qualify as employees under the Fair Labor Standards Act (FLSA). The FLSA requires for-profit employers to pay “employees” for their work; however, whether interns or students qualify as “employees,” and, thus, are entitled to compensation for services provided, has been the subject of considerable litigation. In its statement, the DOL abandoned the six-factor test it instituted in 2010, and instead endorsed the “primary beneficiary” test which was established by the Second Circuit in Glatt v. Fox Searchlight Pictures, Inc. Further, the DOL stated that the Wage and Hour Division’s investigators will “holistically analyze internships on a case-by-case basis.” This is a strategic change in the DOL’s enforcement policies to align its procedures with several circuit court decisions.

It’s Cut and Dry: Ninth Circuit Adopts “Primary Beneficiary” Analysis, Concludes Cosmetology and Hair Design Students Were Interns, Not Employees

December 26, 2017 | Jackson Lewis Filed Under: Employees Covered (FLSA)

Jackson Lewis

Former students at a cosmetology and hair design school with locations in California and Nevada were interns and not employees entitled to wages under the FLSA or state law, the Ninth Circuit has held. Benjamin v. B&H Education, 2017 U.S. App. LEXIS 25672 (9th Cir. Dec. 19, 2017). In so concluding, the Ninth Circuit adopted the non-exhaustive, multi-factor “primary beneficiary” test established by the Second Circuit in Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528 (2nd Cir. 2016) (discussed at length here], concluding that this test “best captures the Supreme Court’s economic realities test in the student/employee context and that it is therefore the most appropriate test for deciding whether students should be regarded as employees under the FLSA.”

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