Author: lawofficesofmitchellschleyllc

UNPAID INTERNSHIPS UNDER THE FAIR LABOR STANDARDS ACT: IS YOUR INTERNSHIP PROGRAM LEGAL?

Unpaid internships are common in many businesses throughout the country. Some interns enthusiastically accept unpaid opportunities to get exposure while others take unpaid internships because of a shortage of regular paid jobs. With the number of unpaid internship programs on the rise, interns need to know if they are entitled to be paid. This issue was given particular attention when unpaid interns working on the set of the film “Black Swan” filed a lawsuit for unpaid wages against Fox Searchlight Pictures. See Glatt v. Fox Searchlight Pictures, Inc.

In that decision, the court ruled that unpaid interns were “employees” covered by the federal FLSA and New York Labor Law, and therefore, should have been paid. The court stated that in order for a company to have an intern work without pay, the company must establish the following:

1. The internship needs to be similar to training that would be given in an educational environment;

2. The internship experience is for the benefit of the intern;

3. The intern is not there to do the work of a regular employee, but works under close supervision of existing staff;

4. The employer that provides the training gets no immediate advantage from having the intern and on occasion its operations may actually be impeded;

5. The intern is not necessarily entitled to a job at the conclusion of the internship; and

6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship. See U.S. Department of Labor, Fact Sheet #71: Internship Programs under the Fair Labor Standards Act (April 2010).

Unless the above factors are met, the court will likely rule that an intern should be paid.

The Glatt case is under appeal with the federal Second Circuit of Appeals in New York.

We will continue to monitor the developments in this area of the law.

NEW JERSEY BECOMES THE THIRTEENTH STATE TO PASS LAW PROTECTING SOCIAL NETWORKING ACCOUNTS OF EMPLOYEES

On August 29, 2013, Governor Chris Christie signed New Jersey Assembly Bill No. 2878 into law. This law, effective December 1, 2013, prohibits your company from requiring or requesting you as an employee or an applicant to provide your user name or password for your personal social networking accounts, such as Facebook, Twitter or Instagram. In order for an employee to have this protection, the social networking account must be used only for personal communications unrelated to the business purpose of the company. Thus, although personal social media accounts are safeguarded under this Act, employers may continue to implement policies pertaining to the use of employer-issued electronic devices and require login information for social networking accounts that are used for business purposes.

The law also contains an anti-retaliation provision which prohibits an employer from retaliating or discriminating against an employee because he or she has (1) refused to provide or disclose any user name or password to a social media account, (2) filed a complaint of an alleged violation of this Act, (3) testified, assisted, or participated in any investigation, proceeding or action concerning a violation of this Act, or (4) otherwise opposed a violation of this Act. If the company violates this new law, it may have to pay damages and attorney’s fees to the employee or job applicant.

GOVERNOR CHRIS CHRISTIE SIGNS INTO LAW THE NEW JERSEY SECURITY AND FINANCIAL EMPOWERMENT ACT ASSISTING VICTIMS OF DOMESTIC VIOLENCE AND SEXUAL ASSAULT AND THEIR CLOSE FAMILY MEMBERS

Governor Chris Christie recently signed into law the New Jersey Security and Financial Empowerment Act (“NJ SAFE Act”). The NJ SAFE Act became effective on October 1, 2013. This Act requires private employers, who employ 25 or more employees, to provide certain victims of domestic violence or sexually violent offenses up to 20 days of unpaid leave in a 12-month period. This Act also permits leave to be taken by an employee whose child, parent, spouse, domestic partner or civil union partner is a victim of domestic violence or sexually violent offense. To be eligible, the employee must have worked at least 1,000 hours during the immediately preceding 12-month period.

Under the Act, a leave of absence is permitted to be taken for a wide range of activities, which includes seeking legal assistance or medical attention, obtaining services from victim services organizations or counseling, and participating in legal proceedings or safety planning activities, among other things. The regulations also require employers to post notice of employee’s rights under the NJ SAFE Act in a conspicuous location in the workplace.

Lastly, it is important to be aware of the anti-retaliatory provision contained in the NJ SAFE Act. The Act prohibits an employer from discharging, harassing or otherwise discriminating or retaliating against an employee who has taken leave or requested to take leave that he or she was entitled to under the Act.