Alabama Employment Law Report : Alabama Employment Lawyer & Attorney : Daniel J. Burnick : Sirote & Permutt Law Firm

Last Wednesday, Sirote & Permutt hosted a seminar that addressed issues surrounding the legality of unpaid summer interns.  On Friday, Roy Williams, with the Birmingham News, published a story entitled "Grads may face hard lesson as they join job market", writing that "Continued weakness in the entry-level job market could force many newly-minted grads to accept lower-paying service sector positions or forsake income entirely by volunteering or accepting unpaid internships, according to" Challenger Gray & Christmas, a Chicago based outplacement firm.

Last month, the Department of Labor published Fact Sheet 71, entitled "Internship Programs Under the Fair Labors Standards Act".  The fact sheet sets forth the test for unpaid interns in the for profit sector:

1.  The internship, even thought it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;

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

3.  The intern does not displace regular employees, but works under close supervision of existing staff;

4.  The employer that provides the training derives no immediate advantage from the activities of 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.

If all 6 factors are met, the intern can be an unpaid "trainee".  The DOL takes the position that if ALL 6 factors are not met, the person is an "employee" and should be paid at least minimum wage pursuant to the FLSA.

There have been a great number of articles published about summer internships and whether or not they should be paid.  In the New York Times , Nancy Leppink, the acting director of the DOL's wage and hour division, was quoted as saying "If you are a for-profit employer or you want to pursue an internship with a for-profit employer, there aren't going to be many circumstances where you can have an internship and not be paid and still be in compliance with the law."  The article notes that at Stanford University, there were 643 postings for unpaid internships for this past academic year, more than triple the number posted 2 years ago.  In 1992, 9% of graduating students held internships, compared to 83% of graduating students in 2008.  It is estimated that 1/4 to 1/2 of the internships are unpaid.  Two examples of questionable unpaid internships set forth in the New York Times article are:

1.  "One Ivy League student said she spent an unpaid three-month internship at a magazine packaging and shipping 20 or 40 apparel samples a day back to fashion houses that had provided them for photo shoots"; and

2.  "At Little Airplane, a Manhattan children's film company, an N.Y.U. student who hoped to work in animation during her unpaid internship said she was instead assigned to the facilities department and ordered to wipe the door handles each day to minimize the spread of swine flu."

An interesting rebuttal to the DOL's position was published in Swarthmore College's  Daily Gazette.  Soren Larson wrote that "It definitely makes me feel all fuzzy inside to know that people at the Labor Department believe that someone in the world should pay unpaid interns a living wage.  But the Labor Department has no business telling young Americans that they cannot exchange free labor for profitable market skills, connections, and impressive resume filler vital for getting that next job."

Articles on this topic have also been written in Time, The Wall Street Journal, and USA Today.  The Beasley Allen law firm, based out of Montgomery, in it's most recent "The Jere Beasley Report", May 2010, had an entry entitled "Having unpaid interns is not always legal".  In this entry, the firm states: "The abuses we are seeing is where an intern is hired and is doing the exact same job that other paid employees are doing.  In fact, many of them are separately assigned work and have minimum oversight.  Similarly, if an intern is simply making coffee, running errands and cleaning all day, without receiving any educational experience, then the internship probably violates federal law and should be paid."  Beasley Allen is one of the most successful plaintiff's firms in Alabama, and is apparently trying to generate interest in handling these types of cases.

Practice pointer.  The issue of unpaid interns is high on the list of the DOL.  It is also generating interest in the plaintiff's bar.  Most interns and most companies will not complain to the DOL or to a law firm: both receive benefits from the relationship.  But with numerous employers posting unpaid intern positions in public places, such as college campuses, it is easy for the DOL to determine which companies are using unpaid interns.  Also, some of the unpaid interns may become disillusioned with the position, such as those mentioned above, and may actively seek out legal advice.  With all the publicity about this topic in numerous publications, I anticipate that there will be an increase in FLSA claims over the unpaid intern issue. 

• Email This
• Print
• Comments
• Trackbacks

The EEOC continues to pursue lawsuits against employers for sexual harassment as well as other claims.  In Alabama, the EEOC announced a settlement with Jack Marshall Foods, Inc., a KFC franchisee based out of Tuscaloosa.  The EEOC filed it's suit in March, 2009, alleging that sexual harassment was taking place at the KFC restaurant in Monroeville.  The suit claimed that that Jack Marshall tolerated male employees openly describing sexual desires and interests with female employees and engaged in unwelcome sexual conduct including touching and groping.  Jack Marshall agreed to pay $1.05 million to settle the lawsuit brought on behalf of 19 female employees.  It should be noted that at least 3 of the female plaintiffs were teenagers at the time the harassment occurred.

In Kansas, the EEOC filed suit on May 20 alleging that an 18 year old server at a Cactus Grill restaurant was sexually harassed by one of it's managers.  The EEOC press release states that "an assistant manager at the restaurant asked the server for sex, touched her, and made unwelcome sexual advances toward her.  The harassment was so intolerable that the server was forced to quit her job, amounting to an unlawful constructive discharge."  The press release also quoted the director of the St. Louis District office as saying "Sexual harassment in the workplace is always wrong, but harassment of teenage workers, who are often in their first 'real' job, is even more egregious... Employers must provide safe, harassment-free workplaces for all of their employees, including teenagers". 

Practice pointer.  The EEOC remains active in Alabama, and around the country, in filing suits and settling claims of harassment.  Both these cases involve teenagers: it should be noted that the EEOC has a specific web site dealing with teenagers in the workplace, In light of the fact that many businesses hire teenage summer help, now is the time for employers to make sure that their entire workforce, including the summer labor force, is trained on harassment and discrimination in the workplace.

GINA UPDATE.  In what appears to be the first publicly released complaint filed under the Genetic Information Nondiscrimination Act, Pamela Fink filed suit against her employer in Connecticut alleging she was fired as the result of a positive test for BRAC2, the breast cancer type 2 susceptibility protein.  According to Business Insurance, when she received the positive result, Ms. Fink took medical leave for a double mastectomy.  The day before her second and final surgery, she received a mid year review that was "negative and scathing", was fired, and told her position had been eliminated.  In a related article by Judy Greenwald with Business Insurance entitled "Discrimination claims rising in wake of genetic bias law", the following was written : “I think the EEOC, under the current administration, is being very proactive” in pursuing claims under its jurisdiction, said Daniel J. Burnick, a shareholder with law firm with Sirote & Permutt P.C. in Birmingham, Ala. In addition, more employees “are looking to the EEOC and/or the court system in an attempt to either protect their jobs or receive compensation should they lose their jobs.”

Practice pointer.  I expect there to be more claims filed under GINA as more people become aware of it.  As you can tell from Ms. Fink's complaint, timing is very important:  the fact that she was reviewed and fired while on medical leave is suspect, to say the least. 

• Email This
• Print
• Comments
• Trackbacks

I have written in the past about violence in the workplace and the problems associated with the presence of firearms in the workplace. Last week, in the case of M&J Materials v. Isbell, the Alabama Court of Civil Appeals found that summary judgment in favor of the employer was appropriate when a worker, who had suffered a compensable on the job injury, was discharged for pointing a gun at a manager.  Thanks to one of my associates from my Huntsville office, Michael Pillsbury, for the summary of the case:

Stanford D. Isbell (Employee) injured his right wrist on June 15, 2006 while working for M & J Materials, Inc. (Employer). Sometime between April 2006 and June 2006, Employee, while still employed by Employer, brought a firearm to Employer's place of business. While showing the firearm to his co-workers (but not management), Employee aimed the firearm at a member of the management team while the manager's back was to Employee. The firearm did not discharge but this conduct made several co-workers uncomfortable and was soon reported to management who terminated Employee. Upon his termination, Employee filed suit against Employer for retaliatory discharge. Employer's motion for judgment as a matter of law was twice denied and Employer appealed. In order to prove a prima facie case of retaliatory discharge, the employee must show: 1) an employment relationship, 2) an on-the-job injury, 3) knowledge on the part of the employer of the on-the-job injury, and 4) subsequent termination of employment based solely upon the injury and the filing of a worker's compensation claim. The Court focused on the fourth element as Employee had provided evidence that the first three elements had been satisfied. Failure by the Employee to prove any of the four elements listed above was grounds for judgment as a matter of law in favor of Employer.

Employer's stated basis for Employee's termination was that Employee had brought a firearm into Employer's place of business. The Court noted that an employer's stated basis for a discharge is sufficient to defeat the fourth element listed above when the facts surrounding the stated basis are undisputed and the employee has not provided substantial evidence that a) the stated reason for termination has been applied in a discriminatory manner to employees who have filed worker's compensation claims, b) company policy does not support the termination, or c) the employer disavowed the stated reason or has otherwise admitted it is pretextual. The Court held that there was no dispute that Employee brought a firearm to Employer's place of business and aimed it at his supervisor. The Court further held that the Employer's policy against possession of weapons in Employer's place of employment was not being applied in a discriminatory manner against employees who had filed a worker's compensation claim. This matter was remanded to the trial court for proceedings consistent with the determinations of the Court of Civil Appeals.

Practice pointer.  Any time a weapon, be it a gun, knife, baseball bat or other type of weapon, is brandished in the workplace, whether as a joke or as a threat, it must be taken seriously.  There is no room for error in dealing with potentially violent employees.  In the Isbell case, termination was the correct course of action to take to protect all of the employees.

UNPAID SUMMER INTERNS

There is a great deal of discussion in the legal community about the legalities of unpaid summer interns.  It appears as if there will be a crackdown on employers who improperly use unpaid interns to take the place or supplement regular employees.  I have heard on at least 4 occasions in the last 2 weeks about my own relatives and friends who are working in unpaid positions this summer in jobs for which they should be paid.  Sirote & Permutt's next seminar is scheduled for Wednesday, May 19th from 11:30 a.m. to 1:00 p.m.  It will be presented live in the Birmingham office, and will be shown via video conferencing my Huntsville and Mobile offices.  if you are interested in attending, please feel free to contact me so we can plan accordingly.

• Email This
• Print
• Comments
• Trackbacks