Thursday, January 18, 2018

Update on Unpaid Interns

Several years ago, the Department of Labor issued a Fact Sheet (#71) addressing when internships may be unpaid (versus falling under the general FLSA employment requirements, including the requirement that employers pay workers at least a minimum wage and overtime). The Department advocated for a stringent six-factor test that would have led to many unpaid internships being deemed unlawful, and requiring many unpaid interns to receive minimum wage and overtime.

DOL's 6-factor test did not fare well in the courts. One high-profile example was Glatt v. Fox Searchlight Pictures, involving interns who worked on the movie Black Swan. The Second Circuit rejected the DOL's 6-factor test and instead used the "primary benefit" or "primary beneficiary" test. "[T]he proper question is whether the intern or the employer is the primary beneficiary of the relationship."

Not official use.
This month, the DOL abandoned its 6-factor test and issued an updated version of Fact Sheet 71. The new Fact Sheet basically reiterates (almost word for word) the test from Glatt:
In short, this test allows courts to examine the “economic reality” of the intern-employer relationship to determine which party is the “primary beneficiary” of the relationship. Courts have identified the following seven factors as part of the test:  
1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.  
2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.  
3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit. 
4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.  
5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning. 
6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern. 
7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship. 
Courts have described the “primary beneficiary test” as a flexible test, and no single factor is determinative. Accordingly, whether an intern or student is an employee under the FLSA necessarily depends on the unique circumstances of each case.
Generally, this test will make it easier for unpaid internships to pass FLSA muster.

Thursday, January 11, 2018

3d Cir: FCA retaliation requires "but for" causation

Not official use.
Last week, the Third Circuit issued a precedential opinion in DiFiore v. CSL Behring LLC. DiFiore claimed that her employer fired her (technically, constructive discharge) in retaliation for whistleblowing activity. In particular, she internally reported concerns about "the activities of CSL and its employees in marketing drugs for off-label use and including off-label use in sales forecasts."

DiFiore included a claim of retaliation under the False Claims Act (FCA). The Third Circuit concluded that a jury instruction that FCA retaliation required "but for" causation (as opposed to the lower burden of a "mixed motive" instruction) was appropriate.

Happy New Year!

Happy New Year! I was out of town for the first 9 days of 2018, so I'm just now getting back in the swing of things. For the most part, it was family vacation time. However, the last day (Jan. 9) I visited the United States Supreme Court and got sworn in to the SCOTUS bar! Obligatory SCOTUS-steps selfie on the right.

Now, I just need a Supreme Court case and I'm all set!

Wednesday, December 20, 2017

Lawffice Links - NLRB-mageddon

Wow, the NLRB has been busy. So busy, that I literally can't even keep up. Maybe they'll take a break over the holidays so I can properly digest all of this stuff. Here's my feeble Twitter attempt to hit some highlights.

Here are some Lawffice Links on the subject.
What's truly amazing is that this has largely flown under the radar. I remember when the then-new joint employer standard was a top trending topic on Twitter. That decision has now been overruled, along with several other major reversals, and I hardy hear anything about it (I mean, in the mainstream media and social media trends - obviously, the #emplaw nerds are all over it). I'm sure this is only the beginning. 

Sunday, December 17, 2017

What is "religion" anyway? Third Circuit weighs in.

Title VII prohibits workplace discrimination based on religion, and requires reasonable accommodation of sincerely held religious beliefs. So, what is "religion" in this context? The Third Circuit recently issued a precedential decision on this issue in Fallon v. Mercy Catholic Medical Center.

Fallon was an intake worker for the medical center, which required employees to be inoculated against the flu. Fallon refused because he believed the vaccine did more harm than good. Although the hospital exempted some employees based on disability or religion, it refused to excuse Fallon and terminated him.

Fallon filed a religious discrimination/accommodation complaint against the hospital. The District Court dismissed the case because Fallon's beliefs were not religious in nature. On appeal, the Third Circuit affirmed.

What is religion?

The Third Circuit did not break new ground here, relying on past precedent:
In United States v. Seeger . . . the Supreme Court put forward a standard for determining whether a belief is religious: “[D]oes the claimed belief occupy the same place in the life of the objector as an orthodox belief in God holds in the life of one clearly qualified for exemption?” . . . . 
Judge Adams proposed a modern definition of religion [in the concurring opinion in Malnak v. Yogi]. We later adopted this definition in Africa v. Commonwealth of Pennsylvania, describing it as follows: 
"First, a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters. Second, a religion is comprehensive in nature; it consists of a belief system as opposed to an isolated teaching. Third, a religion often can be recognized by the presence of certain formal and external signs." 
This definition has met with considerable agreement.
That all sounds good, but can sometimes be difficult to apply in practice.

Why were Fallon's belief's not a religion?

Fallon believed that "one should not harm [his] own body" and that the flu vaccine would do just that. To Fallon, getting the vaccine would "violate his conscience as to what is right and wrong." He even drew support from comparable Buddhist teachings. Yet, he lost. Why?

The Court sums up in two succinct paragraphs:
Not official use.
It does not appear that these beliefs address fundamental and ultimate questions having to do with deep and imponderable matters, nor are they comprehensive in nature. Generally, he simply worries about the health effects of the flu vaccine, disbelieves the scientifically accepted view that it is harmless to most people, and wishes to avoid this vaccine. In particular, the basis of his refusal of the flu vaccine—his concern that the flu vaccine may do more harm than good—is a medical belief, not a religious one. He then applies one general moral commandment (which might be paraphrased as, “Do not harm your own body”) to come to the conclusion that the flu vaccine is morally wrong. This one moral commandment is an “isolated moral teaching”; by itself, it is not a comprehensive system of beliefs about fundamental or ultimate matters. Thus, we do not believe that either of the first two factors in Africa is met here.  
Fallon fares no better under the third factor. Fallon’s views are not manifested in formal and external signs, such as “formal services, ceremonial functions, the existence of clergy, structure and organization, efforts at propagation, observation of holidays and other similar manifestations associated with the traditional religions.”

A single strongly held belief - even if it's about right/wrong and a matter of conscience (i.e. "one general moral commandment") - does not constitute a religion under Title VII.

Wednesday, December 13, 2017

Updated Chart: EEOC Charges versus Unemployment Rate

A few years back, I hypothesized that there would be a correlation between the number of EEOC charges and the unemployment rate. I made a pretty chart and there was a pretty strong correlation (.895). A reader asked for an updated chart, and who am I to deny the people what they want?

Here's the new chart:

Here's the data:

Year  EEOC Charges Unemployment Rate
1997 80680 4.6
1998 79591 4.3
1999 77444 4
2000 79896 4.2
2001 80840 5.7
2002 84442 5.8
2003 81293 5.7
2004 79432 5.3
2005 75428 4.7
2006 75768 4.6
2007 82792 5
2008 95402 7.8
2009 93277 9.8
2010 99922 9.1
2011 99947 8.3
2012 99412 8
2013 93727 6.6
2014 88778 5.7
2015 89385 4.9
2016 91503 4.8

For the unemployment rate, I used the rate as of January  for the following year (e.g. as of January 2017 the rate was 4.8 so I used that as the rate for 2016). One could argue for something more nuanced (perhaps an average rate across the year?). Also, for EEOC charge statistics . . . we should presumably see some increase over time based solely on an increase in the population. Perhaps charting charges as a percentage of population? 

In any event, the correlation was not quite as strong after factoring in the past few years, but still clearly exists. One day I may dig a little deeper into the data. 

Monday, December 4, 2017

MORE Miles on Service Animals and the ADA

Great news! Bloomberg BNA used some of my interview for a second piece on the ADA implications of service animals in the workplace: Helping Workers Who Rely on Animals Without Making a Mess. Enjoy!