Articles

Wage Laws Prevent Unpaid Interns Used As Employees

Employers who exploit unpaid interns as employees will find that they will incur liability for unpaid wages under the Fair Labor Standards Act, (“FLSA”).

In a recent case in this circuit, unpaid interns who had worked on the movie “Black Swan” prevailed in a lawsuit they had filed alleging the company violated the federal FLSA and state wage laws by not paying them. The lawsuit sought payment for wages and overtime. Glatt v. Fox Searchlight Pictures Inc., 2013 U.S. Dist. LEXIS 82079, 20 Wage & Hour Cas. 2d (BNA) 1436, 2013 WL 2495140 (S.D.N.Y. June 11, 2013). The interns’ duties concerned building sets and performing administrative and accounting functions.

Interestingly enough, the U.S. Labor Department already had in place regulations that provided that an employer must pay an intern at least the minimum wage if the following rules were not observed:

1. The work or training performed is an extension of a trade studied by the student. The work must be “similar to training which would be given in an educational environment.”
2. The work or training is for the benefit of the student intern.
3. The intern does not replace an employee and works under close supervision.
4. The employer derives no immediate advantage from the intern’s activities and in fact the employer’s business may be “impeded.”
5. The intern is not entitled to a job at the conclusion of the internship, i.e., there is no promise of a future job.
6. The employer and the intern both understand that the intern is not entitled to wages during the internship.

These rules apply to Connecticut employers, as well. With a predominance of unpaid internships, especially in the white collar occupations, and studies showing that unpaid internships frequently lead to employment, expect that there will be more of these cases filed and won.

FEDERAL FMLA LAW CHANGES TO REFLECT “SPOUSE” COVERAGE FOR SAME SEX COUPLES.

In the wake of the Supreme Court’s June ruling on same-sex marriage, the U.S. Department of Labor, (“DOL”), updated its “Fact Sheet” on the Family and Medical Leave Act, (“FMLA”).

The DOL clarified that the definition of “spouse” will depend on state law:

Spouse: Spouse means a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including “common law” marriage and same-sex marriage.

Therefore, in Connecticut, which has recognized same-sex marriages, the FMLA, both under state and federal FMLA law, will cover same-sex spouses. For employers in states other than Connecticut which recognize such marriages, the FMLA will also apply to such spouses.

Those employers who are affected include:

1. Those employers with 50 employees. If there are fewer than 50 employees, the employer is not covered by the federal FMLA.
2. Those employers who have 75 employees within Connecticut are covered by Connecticut’s FMLA law. The CTFMLA has protected same-sex spouses for the last few years.
3. For employers in Connecticut with 50-74 employees, only the federal FMLA law is applicable.

The qualifying reasons for 12 workweeks of (unpaid) leave under the FMLA are as follows:

• The birth of a child and to bond with the newborn child within one year of birth.
• The placement with the employee of a child for adoption or foster care and bond with the newly placed child within one year of placement.
• To care for the employee’s spouse, son, daughter, or parent who has a serious health condition.
• A serious health condition that makes the employee “unable to perform the functions” of his or her job.
• Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty.
• To care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the servicemember (military caregiver leave).

Enforcement of FMLA violations, such as interference and retaliation for exercise of such rights, are made through either filing a complaint with the Labor Department of a private lawsuit against an employer in court.

There are number of issues involving FMLA leave which require professional consultation. For example, to determine what constitutes a “serious health condition” and whether an employee is “unable to perform the functions” of his/her position, consult with an experienced employment attorney.

The Busca Law Firm has successfully litigated FMLA cases at both the Connecticut Department of Labor and Connecticut federal district court.