Articles Discussing What Employees Are Covered By The FLSA.

The Republican leadership of a congressional oversight committee has started investigating inter-agency communications in response to the Obama Administration’s attempts to hold business franchisors accountable for labor law violations of their franchisees.

Earlier this week, the federal Department of Labor issued a new administrator’s interpretation (No. 2016-1) providing “additional guidance” for determining when an employee is considered “jointly employed” by two or more employers for purposes of the Fair Labor Standards Act (FLSA) and the Migrant and Seasonal Agricultural Workers Protection Act (MSPA).

Joining decisions from other parts of the country, a California federal judge has held that former cosmetology and “hair design” students were not “employees” 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).

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.

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.

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.

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).

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.