Articles Discussing What Employees Are Covered By The 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.

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).

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.

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.

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”).

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).

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.

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: 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?

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.

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.

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.

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.

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.

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.”