Ahhhh… summer. Backyard cook-outs. Days at the pool. And the venerable June-August tradition of giving college students a taste of real work experience without denting your payroll. But wait — various media outlets are reporting that the days of the “unpaid internship” are over.1 Are they? It may be soon to tell. But what can this issue teach us about the nearly 80-year-old federal law governing compensation of virtually all employees in the United States, the Fair Labor Standards Act (FLSA2)? The FLSA was enacted in 1938 as part of the package of Depression-era laws designed to protect workers from oppressive employment conditions. It established a minimum national wage, restricted child labor, and required overtime pay for work in excess of 40 hours in a single workweek3. The general rule of the FLSA is that an employee must be compensated for all time worked. There are, however, numerous exceptions to this rule. For example, employees who are paid on a salary basis of at least $455/week and have managerial, professional or other responsibilities requiring “judgment and discretion with respect to matters of significance” may be exempt from overtime. Employees in certain industries may also be exempt from overtime.4 Interstate commercial truck drivers, for example, are exempt from overtime and are instead subject to hours-of-service regulations enforced by the U.S. Department of Transportation. Back to internships. In fact, the term “intern” is not mentioned in the statute. So, applying the general rule, if an intern is an “employee,” then he or she must be paid the federal minimum wage of $7.25/hour.5 But remember, there are numerous exemptions to the FLSA, established by both Congress and the courts. In 1947, the U.S. Supreme Court held that “trainees” of a railroad employer were not “employees” under the FLSA6. Central to the Court’s decision was that the “trainees” 1) received “practical training” from the railroad; 2) did not displace regular workers for the railroad; and 3) provided no immediate advantage to the railroad’s business; and, in fact, at times “impeded” it. So if an intern qualifies as a “trainee,” then he or she is exempt from the minimum wage requirement of the FLSA. Under guidelines established by the U.S. Department of Labor (“DOL”),7 the employer must demonstrate8 that it meets all six of the following criteria to qualify for this exemption:
For most employers, “OSHA” is (quite literally) a four-letter word. It stands for the Occupational Safety and Health Administration, an agency within the U.S. Department of Labor established by the Occupational Safety and Health Act of 1970 (OSH Act).1 Most employers are familiar with OSHA’s role in enforcing workplace safety and health regulations, but it has other roles as well: 1) it has the authority to develop new regulations to address health or safety hazards in the workplace; 2) it conducts training and offers voluntary compliance programs for employers; and 3) it enforces the so-called “whistleblower” provisions of over 20 federal laws – many having nothing to do with workplace safety or health.
Does a for-profit corporation have a right to the “free exercise” of religion guaranteed under the First Amendment? On March 25, 2014, the United States Supreme Court will hear arguments in a case that has local interest because one of the parties, Conestoga Wood Specialties Corporation, is headquartered in Lancaster County. The case also has national interest because of its roots in the controversial “contraceptive mandate” required by the Patient Protection and Affordable Care Act – AKA “Obamacare” – a federal law that survived constitutional challenge in 2012. Resolving the case will require the Supreme Court to consider two branches of constitutional law: one involving the right to “free exercise” of religion in the context of commercial activity; and the other involving the scope of First Amendment protections for corporations. The Supreme Court’s earlier cases on these issues form part of the “legal family tree” of Conestoga Wood, a case that, at its core, questions whether corporations can be exempted from government regulation under the “free exercise” clause of the First Amendment.
Virtually all businesses are covered by the federal Occupational Safety and Health Act, which requires employers to provide their employees with a “safe and healthful workplace.” The law is enforced by the Occupational Safety and Health Administration (“OSHA”), an arm of the U.S. Department of Labor. While OSHA standards vary among industries, virtually all employers must maintain records of workplace injuries and illnesses, notify employees of hazards associated with chemicals used in the workplace (including printer and copier toner), and ensure the work environment is free from “recognized” safety hazards (such as blocked employee exits, slick floors, or torn carpeting). OSHA is also the federal agency that investigates employee complaints regarding an employer’s failure to comply with workplace safety standards.
Baulig Law can assist employers in ensuring compliance under the OSHA standards that apply specifically to them. Many OSHA standards require preparation of a written “program” that must be tailored to the employer’s specific needs and must be available upon inspection. A niche area for the firm is assisting physician and dental offices with compliance with the Bloodborne Pathogens standard and other regulations that are often cited during OSHA inspections of health care facilities. OSHA fines and penalties can be significant – up to $7,000 per day per violation – so it makes good business sense to be prepared in case an OSHA inspector knocks on your door.