Articles Discussing What Employees Are Covered By The FLSA.

Cases challenging the independent contractor status of certain service providers under the wage-and-hour laws are likely to continue in the near future due to the difficulties in applying the law to complex factual patterns. The Department of Labor recently provided additional guidance for determining contractor status in the form of an Administrator’s Interpretation (and the National Labor Relations Board also weighed in, modifying its view of “joint employment” in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015)). A recent case involving Uber drivers may be a bellwether. O’Connor, et al. v. Uber Technologies, Inc., N.D. Cal. C-13-3826.

The Court of Appeals for the Eleventh Circuit last week adopted the Second Circuit’s “primary beneficiary” test as the appropriate test for determining whether an unpaid clinical intern was truly an “employee” within the meaning of the FLSA. Schumann v. Collier Anesthesia, P.A., 2015 U.S. App. LEXIS 16194 (11th Cir. 2015).

Another Court has joined those holding providers of content to online portals are not employees within the meaning of wage-and-hour laws. Joining a decision from the Court of Appeals for the Second Circuit, which rejected a claim brought by Huffington Post bloggers several years ago, Judge Richard Seeborg of the Northern District of California has rejected the FLSA complaint of individuals who claimed they were employees based on their writing of reviews contained on popular local restaurant review service Yelp. Jeung v. Yelp, Inc., 2015 U.S. Dist. LEXIS 107427 (N.D. Cal. Aug. 13, 2015).

Last year, Judge John G. Koeltl of the Southern District of New York ruled that individuals who served as volunteers at the 2013 Major League Baseball All Star Weekend FanFest, a four-day event centered around the All Star Game, were not entitled to minimum wage because they were “employed by an establishment which is an amusement or recreational establishment . . . [which did] not operate for more than seven months in any calendar year.” On Friday, the Court of Appeals for the Second Circuit affirmed that decision.

How should an employer determine whether unpaid interns at a for-profit employer are employees under the Fair Labor Standards Act entitled to compensation for services provided?

Two weeks after the U.S. Department of Labor issued an Administrator’s Interpretation cautioning that “most workers are employees,” Senators Bob Casey (D-PA) and Al Franken (D-MN) introduced a bill targeting worker misclassification. The Payroll Fraud Prevention Act of 2015 would make a number of amendments to the Fair Labor Standards Act to require employers to delineate employees from non-employee contractors, impose additional employer reporting requirements, and establish new penalties for misclassification violations.

In a move that is expected to have far-reaching consequences for employers, the U.S. Department of Labor issued new guidance on the classification of independent contractors as employees under the Fair Labor Standards Act (FLSA). Dr. David Weil, the DOL Wage and Hour Administrator, issued a July 15, 2015 Administrative Interpretation (the “Interpretation”) warning employers that the definition of “employ” is very broad under the FLSA.1 The guidance reads as an argument, complete with references to favorable federal court decisions, which will likely be used to support future DOL enforcement actions.

Executive Summary: Today, the Wage and Hour Division of the U.S. Department of Labor (DOL) issued an interpretation in furtherance of its Misclassification Initiative, which concludes that “most workers are employees under the FLSA’s broad definitions.” See Administrator’s Interpretation 2015-1: The Application of the Fair Labor Standards Act’s “Suffer or Permit” Standard in the Identification of Employees Who Are Misclassified as Independent Contractors. The Interpretation does not change the “economic realities” test courts currently apply in determining whether a worker is an independent contractor. It does, however, emphasize that each factor of the economic realities test must be applied consistently with the broad definition of “employ” found in the Fair Labor Standards Act (FLSA); that is, whether the worker is economically dependent on the employer and is, therefore, “suffered or permitted to work” by the employer.

The US Department of Labor (DOL) today issued a new “administrator’s interpretation” intended to help employers figure out whether to treat workers as employees or independent contractors under the Fair Labor Standards Act (FLSA).

As previously promised, the Department of Labor today issued its eighth Administrator’s Interpretation (“AI”) since the 2010 implementation of this form of guidance. Today’s Interpretation, as expected, reflects the current Department’s position that the governing analysis is the economic realities test which, in the Department’s view, is used to determine “whether the worker is economically dependent on the employer” rather than the full “economic realities” of the parties’ arrangement. Unsurprisingly, under this analysis the Department expresses its view that “most workers are employees under the FLSA.” DOL Administrator’s Interpretation No. 2015-1 (July 15, 2015). This view is consistent with the position expressed by DOL at the agency level in its investigations. The balance of the fifteen-page AI discusses the factors that should be used in applying the “economic realities” test and provides examples of workers who satisfy and fail to satisfy each factor, collecting case law finding workers to be employees under the FLSA.

On July 2, 2015, the U.S. Court of Appeals for the Second Circuit issued two eagerly awaited decisions that may dampen the recent wave of collective and class actions filed by unpaid interns claiming they should be paid employees. In Glatt v. Fox Searchlight Pictures, Inc. et al., Nos. 13-4478 & 13?4481 (2d Cir. 2015) and Wang v. Hearst Corp., No. 13?4480?cv (2d Cir. 2015) (summary order), the court announced a new “primary beneficiary test,” identified seven non-exhaustive factors relevant to classifying interns as employees in the for-profit sector, and rejected strict application of the six factor test promulgated by the United States Department of Labor (DOL). Equally noteworthy, the court largely foreclosed collective and class certification in intern cases by emphasizing the highly individualized inquiry required by its new test.

Employers across the country are increasingly utilizing independent contractors to fill an ever-expanding array of positions. These jobs range from sophisticated, high-tech engineers and logistics professionals to doctors, nurses, construction workers, and food service providers. But employers who seek to classify workers as independent contractors to avoid the expenditures associated with payroll, taxes, benefits, and capital improvements, or feel further incentivized to do so by the Affordable Care Act, should take note: Courts are sending a clear message that such practices can be costly.

A federal trial court in Florida recently issued a significant decision on the issue of unpaid trainees under the FLSA, finding that 25 former students of Wolford College were not employees when they participated in a clinical training program as part of the college’s Masters of Nurse Anesthesia program.

With the summer drawing near and many high school and college students looking to bolster their resumes, a new set of eager-to-please interns will appear in offices around the country, bringing some youthful exuberance to the office. For most, the addition of interns roaming the halls will be a positive experience for all involved. For others, however, in particular employers who may view interns as little more than “free labor,” costly litigation could be lurking right around the corner.

In the most recent development in the wave of wage and hour class and collective actions by unpaid interns, two different federal judges in the New York District Court for the Southern District of New York recently decided whether to conditionally certify putative collective actions filed by unpaid interns who claimed they did work customarily performed by paid employees but were not classified as employees and were not paid minimum wage and overtime as required by the FLSA. The judges each reached a different conclusion.