Today we want to hit a few of the highlights that have occurred in the employment law arena over the last couple of weeks.  While there are many stories that have come out, the most compelling to me include interns, the new Family and Medical Leave Act (FMLA) regulations, and the President’s comments on minimum wage.

The Wall Street Journal ran an interesting video entitled “Fashion Week: The Secret Life of Interns” (see the video here).  It was an interesting enough video for those that like these kinds of things, but it raises some important legal questions for employers. The story has is about unpaid interns who work like crazy during fashion week.

The question the story poses for employers is whether these interns really qualify? The Department of Labor Wage & Hour Division (WHD) has set forth six (6) requirements that must be met for employees to be considered interns and therefore avoid the Fair Labor Standards Act’s (FLSA) minimum wage and overtime requirements.  The internship must be similar to training which would be given in an educational environment and for the benefit of the intern.  The intern must not displace regular employees and must not be entitled to a job at the conclusion of the internship.  Finally, the employer that provides the training should derive no immediate advantage from the activities of the intern (and indeed may be impeded by the intern) and the employer and intern must understand that the intern is not entitled to wages.

FMLA Regulations:
The WHD issued final regulations relating to military leave and airline flight crews.

Military Leave Provisions:
The regulations now provide an extension of military caregiver leave to eligible family members of recent veterans with a serious injury or illness incurred in the line of duty.  They also provide provide for military caregiver leave to cover serious injury or illnesses that result from the aggravation of an injury or illness during military service of a preexisting condition. This applies to both current servicemembers and veterans.  Qualifying exigency leave has been extended to eligible employees with covered family members serving in the Regular Armed Forces.  The regulations now include a foreign deployment requirement for qualifying exigency leave for deployment of all servicemembers (National Guard, Researves, and Regular Armed Forces).  And there is now a flexible, three-part definition of serious injury or illness of a veteran has been established.

Airline Flight Crews:
Two major changes have occurred relating to airline crews. First, special hours of service eligibility requirements for airline flight crew employees has been updated. Second, specific provisions relating to calculating the amount of FMLA leave used by airline flight crew employees.

Minimum Wage:
President Obama made mention of raising the minimum wage in the State of the Union address and has continued to reiterate the same message since.  The platform presented included calls to raise the minimum wage to $9.00 per hour.  Regardless of the political discussion on whether to raise the minimum wage, the key for employers is to know what the requirements are for their business.  Employers are reminded that many states have different minimum wages than the federal government and should keep up to date on changes in wage and hour laws.

Employers are also reminded that the FLSA has many exceptions and exemptions to the minimum wage and overtime requirements.  Employers should regularly review position descriptions to determine if employees may qualify for these exceptions and exemptions to ensure labor costs are efficient as possible.

Action Items:
Employers should:

  1. Revise their policies and practices if legal updates require;
  2. Review exempt classifications of current employers to ensure they continue to qualify;
  3. Review non-exempt positions that may qualify for exemptions; and
  4. Set a regular schedule to review policies and procedures to ensure compliance with federal, state, and local laws and regulations.

Please contact us if you have any questions or would like assistance regarding these matters.

UPDATE: on Wednesday, February 20, 2013 at 11:39AM

It appears that the fashion industry has already been hit with a lawsuit from its interns.  Apparently, Elite Model Management was sued in a collective action under the Fair Labor Standards Act (FLSA) by a former intern.  The former intern alleges that the company misclassified young workers as unpaid interns in violation of the FLSA.  The lawsuit alleges damages in the amount of $50 Million.

Employers looking to use interns should carefully review the regulations to assure they are in compliance with all the statutory and regulatory requirements prior to doing so.  The DOL and plaintiffs firms are proactive in pursuing these issues.

See a brief article in the New York Post here.