Labor and Employment Law Commons^™

Waging The War Against Unpaid Labor: A Call To Revoke Fact Sheet #71 In Light Of Recent Unpaid Internship Litigation, Rachel P. Willer

Law Student Publications

Part I of this comment provides an overview of prevailing agency and judicial interpretations of unpaid internships. Part II describes recent internship litigation and the trend towards courts abandoning the Wage and Hour Division's six-factor test in favor of a more expansive primary beneficiary test. Part III suggests that Fact Sheet #71 is an outdated model that is inapplicable to contemporary internships. The Wage and Hour Division's six-factor test lacks the "force of law" and should not warrant undue judicial deference. Alternatively, the primary beneficiary test, articulated in the Second Circuit's holding in Glatt v. Fox Searchlight Pictures, Inc. …

Waging The War Against Unpaid Labor: A Call To Revoke Fact Sheet #71 In Light Of Recent Unpaid Internship Litigation, Rachel P. Willer

University of Richmond Law Review

Part I of this comment provides an overview of prevailing agency and judicial interpretations of unpaid internships. Part II describes recent internship litigation and the trend towards courts abandoning the Wage and Hour Division's six-factor test in favor of a more expansive primary beneficiary test. Part III suggests that Fact Sheet #71 is an outdated model that is inapplicable to contemporary internships. The Wage and Hour Division's six-factor test lacks the "force of law" and should not warrant un- due judicial deference. Alternatively, the primary beneficiary test, articulated in the Second Circuit's holding in Glatt v. Fox Searchlight Pictures, Inc." …

Joint Employers: The Nevada Casino Operator's Role In Regulating Labor Conditions Of Venue Employees, Mary Tran

UNLV Gaming Law Journal

No abstract provided.

Wage Theft As Public Larceny, Elizabeth J. Kennedy

Brooklyn Law Review

Home care for the elderly and disabled is a rapidly expanding industry in which structural and regulatory factors contribute to worker vulnerability and exploitation. Systemic exclusion from core federal employment and labor laws, as well as many state and local regulations, results in minimal consequences for employers who violate standards. Despite recent movement at the federal level to create a “new mindset” of rights and regulations, home care workers must be equipped with creative ways to enforce these new rights and to challenge existing gaps in enforcement. With the understanding that two-thirds of the home care industry is financed by …

Disability Rights And Labor: Is This Conflict Really Necessary?, Samuel R. Bagenstos

Indiana Law Journal

In this Essay, I hope to do two things: First, I try to put the current labor-disability controversy into that broader context. Second, and perhaps more important, I take a position on how disability rights advocates should approach both the current contro-versy and labor-disability tensions more broadly. As to the narrow dispute over wage-and-hour protections for personal-assistance workers, I argue both that those workers have a compelling normative claim to full FLSA protection—a claim that disability rights advocates should recognize—and that supporting the claim of those workers is pragmatically in the best interests of the disability rights movement. As to …

"An Equally Divided Court": Workplace Law In The U.S. Supreme Court 2015-2016, Ruben J. Garcia

Scholarly Works

The 2015-2016 Term of the United States Supreme Court was scarcely halfway over when Justice Antonin Scalia passed away on February 12, 2016. This event and the political gridlock over his successor defined the Term in some ways more than the actual decisions of the Court, particularly when the resulting vacancy led an “equally divided” Supreme Court to affirm the courts below in a one sentence judgment. The most watched of these cases in workplace law was Friedrichs v. California Teachers Association, where the Supreme Court’s 4-4 tie avoided the overruling of decades of precedent upholding the constitutionality of agency …

Will Work For Free: The Legality Of Unpaid Internships, Nicole M. Klinger

Brooklyn Journal of Corporate, Financial & Commercial Law

This Note addresses the current ambiguity in the law regarding if unpaid interns are employees under the Fair Labor Standards Act. The Note explores relevant case law throughout the circuit courts, but primarily focuses on the Second Circuit’s recent decision in Glatt v. Fox Searchlight Pictures. It argues that the primary benefits test created by the Second Circuit in Glatt does not adequately protect unpaid interns nor does it inform employers of the standards they need to meet in order to adopt legal unpaid internship programs. Instead, courts should adopt a clearer, more rigid test that finds an intern not …

Protecting Society From Teenage Greed: A Proposal For Revising The Ages, Hours And Nature Of Child Labor In America, Andrea Giampetro-Meyer, Timothy S. Brown S.J.

Akron Law Review

The first section of this Article presents a picture of child labor throughout American history. It looks at child labor from the turn of the century to date. This section helps the reader understand the extent of changes in child labor over time. The second section presents a summary of federal and state child labor laws. This section shows that attempt to control employers who exploit children have changed only marginally. The third section of this Article explores social science data on the pros and cons of teenage employment.

This section focuses on the issue of teenage greed. First, the …

Paradise Lost? State Employees' Rights In The Wake Of "New Federalism", Christina M. Royer

Akron Law Review

This Comment analyzes the resurgence of sovereign immunity under the Eleventh Amendment – what could be construed as a sort of “new federalism” – specifically in the context of federal employment statutes and state employees’ rights there under. The analysis focuses on the Fair Labor Standards Act (hereinafter FLSA), the Age Discrimination in Employment Act (hereinafter ADEA), and the Family and Medical Leave Act (hereinafter FMLA), because these statutes appear to be among those that are the most threatened by the Supreme Court’s recent actions. This Comment concludes that, because the scales are now tipped in favor of states' rights …

No Pay, No Gain? The Plus Side Of Unpaid Internships, Chad A. Pasternack

The Journal of Business, Entrepreneurship & the Law

Recent cases out of the Southern District of New York have shined a spotlight on the phenomenon that is the unpaid internship with for-profit companies. These rulings, awaiting scrutiny by the Second Circuit, have opened the floodgates for countless interns to challenge their “employers” for the minimum wage they may be owed under the Fair Labor Standards Act (FLSA). This article examines the evolution of testing for employment under the FLSA, which varies greatly among the circuits. It then argues for a limited exception to the FLSA inspired by the “small business exception” to the Affordable Care Act.

Summary Of Terry V. Sapphire Gentlemen’S Club, 130 Nev. Adv. Op. 87, Walter Fick

Nevada Supreme Court Summaries

The Court adopted the “economic realities” test of the Fair Labor Standards Act, and held as a matter of law that performers at the Sapphire Gentlemen’s Club were “employees within the meaning of NRS 608.010, and thus entitled to the minimum wages guaranteed by NRS Chapter 608.”

Subminimum Or Subpar? A Note In Favor Of Repealing The Fair Labor Standards Act's Subminimum Wage Program, Melia Preedy

Seattle University Law Review

This Note argues for the repeal of Section 14(c) of the Fair Labor Standards Act (FLSA), which continues to perpetuate a system allowing employers to pay less than minimum, or “subminimum,” wage to certain employees with disabilities. The Section 14(c) program is a relic of policy leftover from the 1930s and does not help the disabled community, but rather rests on the presumption that persons with disabilities never progress. In light of recent House Resolution 3086, Congress went against the current trend of encouraging maximum independence and equal opportunities for persons with disabilities and instead upheld the subminimum wage program; …

Breastfeeding And A New Type Of Employment Law, Marcy Karin, Robin Runge

Catholic University Law Review

No abstract provided.

Preserving The Sanctity Of Collective Bargaining: The Compensability Of Travel Time Following Flsa Section 203(O) Donning And Doffing Activity, Nicholas Hart

Catholic University Law Review

No abstract provided.

Christopher V. Smithkline Beecham Corporation: A Tough Pill To Swallow For Pharmaceutical Sales Representatives?, Hsuan Li

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Internships As Invisible Labor, Melissa Hart

Publications

No abstract provided.

The Fair Labor Standards Act: A Tool For Those Who Represent Employees, Claimants, And Plaintiffs, Joseph A. Schremmer, Sean M. Mcgivern

Faculty Scholarship

The Fair Labor Standards Act (FLSA) of 1938 is a comprehensive federal statute that regulates minimum wages, maximum hours, and child labor. This article is intended to provide background for the general practitioner in an effort to help advance the interests of Kansas Association for Justice clients and workers. The FLSA was created to hold disreputable employers to account for chiseling their workers. The tangle of rules and regulations that followed may have complicated the operation of a basically straightforward law. But as long as lawyers understand and can navigate these highly technical provisions, FDR’s grand vision for fair and …

Reply Brief. Sandifer V. United States Steel Corp., 134 S. Ct. 870 (2014) (No. 12-417), 2013 U.S. S. Ct. Briefs Lexis 3416, Eric Schnapper, Aaron B. Maduff, Michael L. Maduff, Walker R. Lawrence, Robert F. Childs, Jr., Abby Morrow Richardson, David L. Kern

Court Briefs

No abstract provided.

Brief For Petitioners. Sandifer V. United States Steel Corp., 134 S. Ct. 870 (2014) (No. 12-417), 2013 U.S. S. Ct. Briefs Lexis 2320, Eric Schnapper, Aaron B. Maduff, Michael L. Maduff, Walker R. Lawrence, Robert F. Childs, Jr., Abby Morrow Richardson, David L. Kern

Court Briefs

No abstract provided.

Christopher V. Smithkline Beecham Corporation: An Unsurprising Loss For Pharmaceutical Sales Representatives And An Erosion Of Power For Administrative Agencies, Anna Johnston

Proxy

No abstract provided.

Regulation By Amicus: The Department Of Labor's Policy Making In The Courts, Deborah Thompson Eisenberg

Faculty Scholarship

This Article examines the practice of “regulation by amicus”: that is, an agency’s attempt to mold statutory interpretation and establish policy by filing “friend of the court” briefs in private litigation. Since the United States Supreme Court recognized agency amicus interpretations as a source of controlling law entitled to deference in Auer v. Robbins, agencies have used amicus curiae briefs—in strategic and at times aggressive ways—to advance the political agenda of the President in the courts.

Using the lens of the U.S. Department of Labor’s amicus activity in wage and hour cases, this Article explores the tension between the …

Labor And Employment Law, Eric Wallace

Law Student Publications

During the past two years, there have been several significant developments in labor and employment law, both on the state and federal levels. Because developments in both state and federal law likely will have a profound impact on employers and employees throughout Virginia, they warrant significant discussion in this survey. In addition to examining notable decisions from the Supreme Court of the United States, the United States Court of Appeals for the Fourth Circuit, and the United States District Courts for the Eastern District and Western District of Virginia, this survey also discusses decisions of the Supreme Court of Virginia …

Petition For A Writ Of Certiorari. Sandifer V. United States Steel Corp., 134 S. Ct. 870 (2014) (No. 12-417), 2012 U.S. S. Ct. Briefs Lexis 4304, Eric Schnapper, Aaron B. Maduff, Michael L. Maduff, Walker R. Lawrence, Robert F. Childs, Jr., Abby Morrow Richardson, David L. Kern

Court Briefs

QUESTIONS PRESENTED

Under the Fair Labor Standards Act, the period of time during which a covered employee must be paid begins when the worker engages in a principal activity. Donning and doffing safety gear (including protective clothing) required by the employer is a principal activity when it is an integral and indispensable part of the activities for which the worker is employed. Such requirements are common in manufacturing firms. However, under section 203(o) of the Act an employer need not compensate a worker for time spent in “changing clothes” (even if it is a principal activity) if that time is …

Are Pharmaceutical Sales Representatives Exempted From The Overtime-Pay Requirements Of The Fair Labor Standards Act?, Anne M. Lofaso

Law Faculty Scholarship

No abstract provided.

Kasten V. Saint-Gobain Performance Plastics: Protecting Oral Complaints At The Expense Of Workplace Complaints, Shaun O'Donnell

Proxy

No abstract provided.

Petition For A Writ Of Certiorari. Dellinger V. Science Applications International Corp. (No. 11-598), 2011 U.S. S. Ct. Briefs Lexis 2153, Eric Schnapper, Zachary A. Kitts, John J. Rigby

Court Briefs

QUESTIONS PRESENTED (1) Does the anti-retaliation provision in section 15(a)(3) of the Fair Labor Standards Act apply to retaliation by an employer against a job applicant? (2) Is the private cause action provided by section 16(b) of the FLSA available to a job applicant who is retaliated against by an employer?

Unpaid Internships & The Department Of Labor: The Impact Of Underenforcement Of The Fair Labor Standards Act On Equal Opportunity, Andrew Mark Bennett

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Defiling The Retaliation Doctrine: Kasten V. Saint-Gobain And The Anti-Retaliation Provision Of The Fair Labor Standards Act, Madeline Engel

Chicago-Kent Law Review

The anti-retaliation provision of the Fair Labor Standards Act makes it unlawful for an employer to retaliate against an employee who has "filed any complaint" under the FLSA. In Kasten v. Saint-Gobain Performance Plastics Corp., the Seventh Circuit declared its position in a growing circuit split as to whether an employee can "file" a verbal complaint of an alleged FLSA violation. Kasten answered the question in the negative, holding that verbal complaints are not protected activity under the Act. This note analyzes relevant Supreme Court precedent and the evolution of the circuit split, as well as principles of statutory …

Save The Children: The Legal Abandonment Of American Youth In The Workplace, Seymour Moskowitz

Law Faculty Publications

No abstract provided.

Dickens Redux: How American Child Labor Law Became A Con Game, Seymour Moskowitz

Law Faculty Publications

Millions of American teens are employed today in a variety of workplaces. The jobs they hold typically provide little human capital for their future economic self·sufficiency, and pose substantial immediate and long-term safety, academic, and behavioral risks for this generation. This Article seeks to answer the question of how American law and society reached this situation, which has such disastrous effects for working youth, their families, and society as a whole. Three main themes are developed:

1. Child labor has always been part of the American economy, from colonial times until today. While there have been more than 150 years …