Last week, an Indiana federal court dismissed a lawsuit brought by former University of Pennsylvania (âPennâ) athletes against the National Collegiate Athletic Association (âNCAAâ) and a number of its member schools over their alleged employment status and corresponding minimum wage protection under the FLSA. Berger, et al. v. NCAA, et al., S.D. Ind., No. 1:14-CV-01710, 2016 U.S. Dist. LEXIS 18194, Feb. 16, 2016. In Berger, the Named Plaintiffs pursued a nationwide collective action against not only their own alma mater, but also more than 120 schools they never attended. Plaintiffsâ alleged in their Amended Complaint that, by virtue of their participation on Pennâs track and field team, they became employees of Penn for purposes of the FLSA entitled to be paid at least minimum wage for the âworkâ they performed as student athletes. The Court did not agree.
Articles Discussing What Employees Are Covered By The FLSA.
Congress Reacts to Obama Administration Moves on Joint Employer Liability
The Republican leadership of a congressional oversight committee has started investigating inter-agency communications in response to the Obama Administrationâs attempts to hold business franchisors accountable for labor law violations of their franchisees.
DOL Issues Administrative Interpretation Broadening Test for Joint Employment
Earlier this week, the federal Department of Labor issued a new administratorâs interpretation (No. 2016-1) providing âadditional guidanceâ for determining when an employee is considered âjointly employedâ by two or more employers for purposes of the Fair Labor Standards Act (FLSA) and the Migrant and Seasonal Agricultural Workers Protection Act (MSPA).
California Federal Court: Cosmetology and Hair Design Students Not âEmployeesâ Entitled to Minimum Wage
Joining decisions from other parts of the country, a California federal judge has held that former cosmetology and âhair designâ students were not âemployeesâ under the Fair Labor Standards Act or the wage-and-hour laws of California and Nevada entitled to minimum wage. Benjamin v. B & H Education, Inc., et al., 2015 U.S. Dist. LEXIS 144351 (N.D. Cal. Oct. 16, 2015).
Resource Update – Navigating the “Shadow Workforce” of Interns, Volunteers, Independent Contractors and Temporary Workers
With the recently published interpretation from the Department of Labor regarding who is considered an employee for the purposes of the Fair Labor Standards Act (and the DOL’s ominous pronouncement that “most workers are employees”) the shadow workforce of interns, volunteers, independent contractors and temporary workers has become even murkier. FordHarrison has prepared a Wage and Hour Toolkit, Shadow Workforce: Blurred Lines Can Lead to Real Wage Hour Liability, to help employers navigate this shifting and often perilous landscape. The Toolkit also provides best practices to help employers light a path through the dark to avoid wage and hour liability in these areas.
Uber Litigation Continues To Serve As Legal Lightning Rod for âOn Demandâ Economy
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 Administratorâs Interpretation (and the National Labor Relations Board also weighed in, modifying its view of âjoint employmentâ in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015)). A recent case involving Uber drivers may be a bellwether. OâConnor, et al. v. Uber Technologies, Inc., N.D. Cal. C-13-3826.
11th Circuit “Tweaks” Test For Whether Interns Are Employees
If you are a regular reader of this blog, you are probably familiar with the six-factor test that the U.S. Department of Labor uses to determine whether an intern should be considered an employee for purposes of the Fair Labor Standards Act.
Eleventh Circuit Adopts Second Circuitâs âPrimary Beneficiaryâ Test to Determine Compensability of Internships
The Court of Appeals for the Eleventh Circuit last week adopted the Second Circuitâs âprimary beneficiaryâ test as the appropriate test for determining whether an unpaid clinical intern was truly an âemployeeâ within the meaning of the FLSA. Schumann v. Collier Anesthesia, P.A., 2015 U.S. App. LEXIS 16194 (11th Cir. 2015).
“Yelping” Does Not Entitle You To Minimum Wage
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).
Second Circuit: MLB âFanfestâ Properly Treated as Exempt Recreational Establishment
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 âemployed by an establishment which is an amusement or recreational establishment . . . [which did] not operate for more than seven months in any calendar year.â On Friday, the Court of Appeals for the Second Circuit affirmed that decision.
‘Primary Beneficiary’ Test Determines Employee Status of Unpaid Interns, Federal Appeals Court Rules
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?
Lawmakers Introduce Worker Misclassification Legislation
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.
How Broad is Broad? New DOL Guidance Determines “Most Workers Are Employees”
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.
USDOL Issues Administrative Interpretation Reflecting Administrationâs View Of âIndependent Contractorâ Analysis Under FLSA
As previously promised, the Department of Labor today issued its eighth Administratorâs Interpretation (âAIâ) since the 2010 implementation of this form of guidance. Todayâs Interpretation, as expected, reflects the current Departmentâs position that the governing analysis is the economic realities test which, in the Departmentâs view, is used to determine âwhether the worker is economically dependent on the employerâ rather than the full âeconomic realitiesâ of the partiesâ arrangement. Unsurprisingly, under this analysis the Department expresses its view that âmost workers are employees under the FLSA.â DOL Administratorâs 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 âeconomic realitiesâ 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.
DOL Interpretation Says “Most Workers are Employees” Under the FLSA’s Broad Definitions
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.