Chevron Deference: The Agency’s Mulligan

by Emmanuel Bello

Recently, the Department of Labor reclassified Home Health Aides as employees. Effective January 1, 2015, they will no longer be exempt from the Fair Labor Standards Act’s minimum wage and overtime requirements.[1] This is a major breakthrough for workers who have suffered over a century of marginalization. However, what does this really mean for domestic workers? Have the lawmakers done enough to rectify their misinterpretation of the FLSA? To answer this question, we can look to the seminal case, Long Island Care at Home, Ltd. v. Coke,[2] and analyze what this could mean for the plaintiff and the 1.9 million domestic workers currently in the United States.[3]

Evelyn Coke was a home health care attendant (HHA) who worked for a home health care agency for nine years without minimum wage or overtime protections.[4] As a HHA, Coke provided, among other services, assistance with administering medication, doctor’s visits, and ambulation transfers.[5] The Court consistently referred to the services she provided as “companionship services.”[6] The Court relied on the principle of Chevron deference[7] when it accepted the Department of Labor’s interpretation of the FLSA, excluding home health care workers from receiving minimum wage or overtime pay regardless of employer.[8] This interpretation is in direct conflict with the General Regulation, which defines exempted domestic work as “services of a household nature performed by an employee in or about a private home (permanent or temporary) of the person by whom he or she is employed.”[9] How can the Court agree that this regulation can reasonably be interpreted to extend to home health care providers employed by an agency?

The Court reasoned that the General Regulation should not be read literally.[10] Instead, the regulation should be interpreted as providing a definition for the type of work that is not covered under the FLSA.[11] In other words, the fact that Coke was employed by an agency is irrelevant to the analysis. The type of work that Coke performed and the agency’s interpretation of domestic work were the sole bases for excluding her from FLSA protection. Despite this analysis, the new regulation still excludes domestic workers engaged in companionship services and employed by individuals, families, or households.[12] At the same time, agencies are not allowed to invoke this exemption even if the worker is engaged in “companionship services.”[13]

If the definition of companionship services has not changed, why is the nature of the employee-employer relationship relevant? And if the interpretation of companionship service has not changed, what has? The Department of Labor acknowledges that these services are essential to “the long term care system (which heavily relies on home care services), and the broader health care system.”[14] This system was developed to reduce the rising cost of health care and to provide long-term care for patients who prefer to rehabilitate in the comfort of their home instead of a nursing home or hospital.[15]

Could this new interpretation be driven by the fact that the aging baby boomers have created a growing market unable to satisfy the demand for cheaper health care services?[16] Or could this be an attempt to recover some of the billions of revenue lost every year due to the misclassification of workers as independent contractors instead of employees?[17] Whichever self-serving justification compelled the promulgation of the new regulation, none of them reflect the need to take care of the millions of HHA’s like Coke, who have worked for years without the guarantee of minimum wage or overtime pay, and with very little savings to cover their health care costs when they reach old age. Without the employee designation, they have contributed very little their long-term care provided through Medicaid. So although this regulation is a step in the right direction, it is a rather small step.

[1] Minimum wage, overtime protections extended to direct care workers by U.S. Labor Department, U.S. Dep’t of Labor (Sept. 17, 2013),

[2] 551 U.S. 158 (2007).

[3] D.O.L., supra note 1.

[4] Coke, 551 U.S. 158, 164 (2007).

[5] Our Services, Long Island Care At Home, (last visited Nov. 15, 2014).

[6] Coke, 551 U.S. at 164.

[7] When Congress fails to expressly or implicitly address an issue that is within the scope of an agencies authority, courts will defer to the agency’s interpretation as long as it is reasonable. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984).

[8] Coke, 551 U.S. at 169.

[9] Labor, 29 C.F.R. § 552.3.

[10] Coke, 551 U.S. at 170.

[11] Id.

[12] Fact Sheet # 79A: Companionship Services Under the Fair Labor Standards Act (FLSA), U.S. Dep’t of Labor (Sept. 2013),

[13] Id.

[14] Brief for Petitioner at 3, Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007) (No. 04-1315), 2005 WL 1034096, at *3.

[15] D.O.L., supra note 1.

[16] Elizabeth Riordan, Where the Heart Is: Amending the Fair Labor Standards Act to Provide Wage and Overtime Pay Protection to Agency-Employed Home Health Aides, 85 St. John’s L. Rev. 837, 838 (2011).

[17] Billions in Revenue Lost Due to Misclassification and Payroll Fraud, Jobs With Justice, (last visited Nov. 15, 2014).

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The Abuses of Amazon: When Workplace Efficiency Overcomes Employee Rights

by Brian Kotkin

Over the past several years, it has been gradually revealed that, one of the world’s largest retailers, has an extraordinarily bad record when it comes to the welfare and safety of the employees in its warehouses (known internally as “fulfillment centers”).[1] Managers constantly track employees’ movements with satellite-navigation tags throughout their warehouses, punishing their employees for even a few minutes of wasted time.[2] In addition, conditions within Amazon’s warehouses are often dangerous: in one warehouse, Amazon employees were forced to work in the summer heat without air conditioning, resulting in enough workers going to the hospital and prompting a doctor to report it to federal regulators.[3] On top of that, it has been alleged in several lawsuits around the nation that Amazon has not provided employees with sufficient breaks or time to eat lunch, and has also deprived employees of overtime pay.[4]

Under the Fair Labor Standards Act,

no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.[5]

In theory, has attempted to adhere the above standard, and has denied all allegations that it has violated any laws.[6] However, it has attempted to get around the requirements for overtime by establishing a very strict time-management system that favors Amazon, accruing many hours of effective work over a period of time due to such things as favorable rounding policies for when employees clock in early or late.[7]

Amazon has also found other ways to deprive employees of deserved pay, such as by forcing employees to undergo security checks before their mandatory breaks, and at the end of their shifts each day, to make sure they are not stealing products from Amazon’s stock.[8] While such security checks are understandable, Amazon has failed to compensate employees for lost time, and employees do not receive additional time for their breaks for the time lost to the security checks.[9] This loss in pay, combined with the strict time schedule, has created an extremely stressful, and potentially hazardous, work environment for anyone who works at an Amazon warehouse.

What is most alarming about all of this, however, is that Amazon claims it is necessary to fulfill consumer demand for cheap and fast deliveries.[10] Rather than hiring more workers to fulfill their massive demand, they instead push efficiency on their existing workers, relying on the threat of unemployment to keep their workers at constant peak efficiency (a strategy known as “management by stress”).[11] This allows them to keep costs down while keeping productivity high, relegating the actual cost of Amazon’s business model to inside its warehouses, where they can remain hidden from the public.

The question is whether the public is willing to put up with Amazon’s abuses for the sake of low costs and fast delivery. The cost for this sort of procedure, right now, is laid on the shoulders of employees, who must pay for it in blood, sweat, and tears. This sort of efficiency is not worth it—not if the result is so heinous.

[1]   Simon Head, Worse than Wal-Mart: Amazon’s sick brutality and secret history of ruthlessly intimidating workers, (Feb. 23, 2014, 6:59 AM),

[2]   Id.

[3]   Angelo Young,’s Workers Are Low-Paid, Overworked And Unhappy; Is This The New Employee Model For The Internet Age?, International Business Times (Dec. 19, 2013, 8:25 AM),

[4]   See In re:, Inc., FLSA and Wage and Hour Litigation, 2014 WL 3695750 (W.D. Ky., 2014) (documenting Amazon’s labor abuses as attempts to toll the statute of limitations on abuse allegations).

[5]   29 U.S.C. § 207(a)(1) (2010).

[6]   Young, supra note 3.

[7]   Austin v., Inc., 2010 WL 1875811 (W.D. Wa., 2010).

[8]   Dave Jamieson, More Amazon Warehouse Workers Sue Retailer Over Unpaid Security Waits, The Huffington Post (Sept. 10, 2013, 7:41 AM),

[9]   Id.

[10]  Head, supra note 1.

[11]  Young, supra note 3.

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What’s Your Password? Employers Seek to Make Private Information Public

by Brian Idehen

Social media has been a recent hot button topic in labor and employment law. More specifically, there is a discussion as to whether passwords to personal social media accounts of employees should be made available to employers. Employers seek these passwords for purposes such as protection of proprietary information;[1] however, there is a fear that the information gathered would or could be used for the unauthorized monitoring of employees’ activities, and ultimately for violations of their rights.[2]

The National Labor Relations Act (“the Act”) allows employees to protect conversations that extend over Twitter and Facebook;[3] however, the Act does not extend protections over to passwords.   The purpose of the Act is to address conditions at work with or without a union,[4] and so conceivably the Act was only concerned with public information. However, employers are also concerned with what is said in private. Namely, employers do not want trade secrets, proprietary information, or anything that can be in violation of federal financial regulations passed between friends or foes.[5] But should employers be allowed to delve into the private lives of their employees, in the name of company preservation?

Twenty-eight states think the answer to that question should be no.[6] Legislation has been enacted or introduced in these states to offer protections for employee privacy in the workplace.[7] Similar to legislation protecting college students from having to give university administrators their passwords, states believe that personal online accounts should not be disclosed.[8]

One such state that protects these interests is New York. New York’s Senate Committee on Labor passed legislation “[p]rohibit[ing] an employer from requesting that an employee or applicant disclose any means for accessing an electronic personal account or service”[9] on May 13 of this year. This was on the heels of the States’ Assembly Committee on Labor in February of the same year stating enacting a bill that “[p]rotects the privacy of employees’ and prospective employees’ social media account [sic].”[10]

We see it more and more everyday: social media affects the lives and, in some instances, the livelihoods of employees and employers in America. Employers are potentially exposed in ways they have never considered before, and, as a result, are looking for ways to insulate themselves from this exposure. Courts have already held that employees who create and manage social media accounts for the company must turnover that login information upon termination;[11] however, there is no desire for that sort of protection to extend to the personal accounts of those same employees it seems.

This issue is not one that is going to go away anytime soon, however. Twenty-two states including Alaska, Colorado, and Oregon have not adopted such legislation, and there does not seem to be any initiative moving towards doing so. Seeing as how this is not a federally regulated issue, and there is such a close split between the states that have adopted legislation and the ones that have not, this seems like a ripe issue to reach the Supreme Court in the coming years.

[1] Employer Access To Social Media Usernames and Passwords, National Conference of State Legislatures, (last visited October 27, 2014).

[2] Id.

[3] The NLRB and Social Media, National Labor Relations Board, (last visited October 27, 2014).

[4] Id.

[5] National Conference of State Legislatures, supra note 1.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Venkat Balasubramani, Ex-Employee Converted Social Media/Website Passwords by Keeping Them From Her Employer-Ardis Health v. Nankivell, Tech. & Mktg. L. Blog (October 26, 2011),

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Shahs of Sunset Fans, Rejoice!

by Melissa Tsynman

While a majority of the country is currently freaking out over Ebola, ISIS, and Border Patrol, reality fans of the popular Bravo program, Shahs of Sunset, are impatiently waiting for the reality show to premiere after a successful three seasons. If you are one of these fans, you may be wondering whatever happened to the fourth season premiere, scheduled for October 13.[1] Yet, what fans do not know, is that the show has recently had more drama off camera than even its most jaw-dropping reunion episodes. After a recent scandal by the network, fans may be disappointed to hear that they will have to wait a little longer to see their favorite “Bravo-lebrities.”

In an attempt to appropriate “a union contract, health benefits, and representation by the International Alliance of Theatrical Stage Employees (“IATSE”) Editors Guild Local 700,” fourteen of the production and postproduction workers were fired after they walked off in a strike, in hopes to be heard.[2] If you are thinking to yourself, “That doesn’t sound legal!”- you are right. The harsh decision by the show’s production company, Ryan Seacrest Productions (“RSP”), is considered a major no-no in federal law. In fact, Section 7 of the National Labor Relations Act (“NLRA”) specifically includes strikes “among the concerted activities protected for employees by this action.”[3] Further, Section 13 also concerns the right to strike.[4] Legally, the act of firing the striking employees is formally known as retaliation, which is federally banned under the False Claims Act.[5]

However, in a sneaky attempt to create a loophole, Bravo tried pulling a fast one by nixing RSP and taking over the show itself.[6] In other words, by switching the production company to the network itself, Bravo tried to argue that the fourteen former employees of RSP were never employees of the “new” production company, who was therefore not responsible for hiring them.[7]

Not so fast, Bravo. The IATSE “filed a complaint with the National Labor Relations Board” (“NLRB”) against both Bravo and RSP for “unfair labor practices, including retaliation.”[8] Of course, the IATSE was motivated by a little more than the show’s premiere. Allowing the production companies to bypass the law in this manner could potentially set a dangerous precedent among future companies. IATSE made an example of Bravo and RSP when they stated that, “It is an egregious violation of the law for any employer to discharge or otherwise retaliate against employees for exercising their right to organize. The Editors Guild and IATSE will aggressively defend the rights of our membership against all such violations.”[9] No standing ovation for you, Bravo.

Fortunately for fans, the show must go on. On October 10, less than two weeks after the complaint was filed, the Motion Picture Editors Guild released that “The crew of Shahs of Sunset voted unanimously to ratify a union agreement, ending the month-long strike.”[10] Though the first episode of the season has yet to debut, fans can rest assured knowing that the team behind the successful show is back in action, and in full compliance with labor regulations.

[1] Dominic Pattern, Bravo Advertisers Targeted in ‘Shahs of Sunset’ Strike, Deadline (Sept. 19, 2014, 4:13 PM),

[2] David Robb, IATSE Rallies Against Bravo’s At NBC Universal HQ, Deadline (Oct. 7, 2014, 1:40 PM),

[3] The Right to Strike, National Labor Relations Board, (last visited Oct. 27, 2014).

[4] Id.

[5] 31 U.S.C. § 3730 (2012).

[6] Robb, supra note 2.

[7] Id.

[8] Id.

[9] Dominic Pattern, UPDATE: Union Blasts Bravo Over Cutting Striking ‘Shahs Of Sunset’ Editors, Deadline (Sept. 26, 2014, 3:04 PM),

[10] Dominic Pattern, ‘Shahs of Sunset’ Strike Over: Deal Ratified With Ryan Seacrest Productions, Deadline (Oct. 10, 2014, 7:37 PM),

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The Color Battles: Louboutin’s Control Over the Red Sole

by Tania V. Parker

One of the Second Circuit’s recent decisions has set the fashion industry ablaze. In Christian Louboutin S.A., L.L.C. v. Yves Saint Laurent America Holding, Inc., the Second Circuit held that a single color can serve as a trademark in the fashion industry.[1] This overturned the district court’s ruling stating that a single color does not meet the commercial purposes for trademark protection.[2] The circuit court ruled that the red sole design by Christian Louboutin qualified as being valid and enforceable under the Lanham Act.[3]

The question is whether the Second Circuit‘s decision will give Christian Louboutin a monopoly over red-soled shoes. The federal antitrust laws are meant to ban unlawful business practices.[4] For example, the Sherman Act prohibits any “restraint of trade.”[5] A “restraint of trade” is defined as an activity that prohibits a business from conducting its general business in a way that it normally would have, had there not been a restriction.[6] Antitrust laws are meant to protect competition of businesses, all for the benefit of the general public.[7] Section 2 of the Sherman Act bars companies from monopolizing, or attempting to monopolize, trade or commerce.[8] Any potential violations by Christian Louboutin would fall under this category. However, interpretations of this section demonstrate that the law is violated when a business attempts to establish a monopoly through “unreasonable methods.”[9]

Christian Louboutin has not engaged in any behavior that rises to the level of creating a monopoly. Christian Louboutin has not started buying out its competitors to create a super itinerary of shoe designers. On the opposite end of the spectrum, Luxottica, the Italian glasses company, has bought several other sunglasses companies, and also manufacturers most designer sunglasses.[10] Luxottica currently manufactures glasses for twenty-one companies, including the Google Glass, and controls 80% of the major brands in the eyeglass industry.[11] However, according to the FTC, certain “monopolistic” practices are permissible.[12] These practices are permissible so long as they do not include price fixing or other methods that substantially harm consumers.[13]

Until Christian Louboutin starts buying Stuart Weitzman, Brian Atwood, Jimmy Choo, Giuseppe Zanotti, and Steve Weitzman—in an effort to not only control, but to own the entire market for designer shoes—they should be safe from antitrust litigation. Having only one brand design (a red lacquered sole) does not constitute a monopoly. Chrisian Louboutin does not own every shoe line, nor does he price his products to drive out his competition. Having a hold on the market of red soled shoes does not take away from other shoe designers, especially if they are not and have not used red soles in their designs. But more importantly, granting trademark protection to Christian Louboutin does not adversely affect consumers.

[1] Christian Louboutin S.A. v. Yves Saint Laurent America Holdings, Inc. (Louboutin II), 696 F.3d 206, 228 (2d Cir. 2012).

[2] Christian Louboutin S.A. v. Yves Saint Laurent America, Inc. (Louboutin I), 778 F.Supp.2d 445, 451 (S.D.N.Y. 2011).

[3] Louboutin II, 696 F.3d at 228

[4] The Antitrust Laws, Federal Trade Commission (Oct. 26, 2014, 3:13 PM),

[5] 15 U.S.C. §1 (2004).

[6] What is “Restraint of Trade”?, Rottenstein Law Group LLP, (Oct. 26, 2014, 6:01 PM),

[7] Id.

[8] Single Firm Conduct, Federal Trade Commission (Oct. 26, 2014, 3:30 PM),

[9] Id.

[10] Christina H., 6 Secret Monopolies You Didn’t Know Run the World, Cracked (Oct. 27, 2010),

[11] Ana Swanson, Meet the Four-Eyed, Eight-Tentacled Monopoly That is Making Your Glasses So Expensive, Forbes (Sept. 10, 2014),

[12] Single Firm Conduct, Federal Trade Commission (Oct. 26, 2014, 3:30 PM),

[13] Antitrust Monopoly, Girard Gibbs LLP (Oct. 26, 2014, 6:06 PM),

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Wait . . . You Don’t Make Minimum Wage?

by Amy Pimer

The Fair Labor Standards Act (FLSA) allows employers to include potential tips earned in calculating what they need to pay their employees in order to comply the federal minimum wage requirements.[1] This is done through the process of using a tip credit, which is allows employers to provide a cash wage that is less than the federal minimum wage under § 3(m) of FLSA.[2] A tipped employee is anyone who makes more than $30 per month in tips.[3] The federal minimum wage is $7.25 an hour and the maximum tip credit available to employers is $5.12.[4] This results in an hourly rate for tipped employees of $2.13.[5] Although, if an employee works in a state that has a minimum wage higher than the federal standard, they are entitled to the higher wage.[6] But does this type of a procedure make it possible for someone to earn a living?

Currently, “[n]ineteen states use the federal $2.13 tip wage, while [twenty-four] states have set a subminimum tip wage above that. Seven other states, most of them in the West, require waiters’ base pay to be at least the state minimum wage.”[7] While there are a few states paying their tipped employees the full minimum wage, this leaves most of these employees reliant on tips to make up the difference in pay. While at first it may not seem difficult to make up for the approximate $5 per hour difference, a server’s ability to do so is based on several factors beyond his or her control. These include but are not limited to: the size of the bill, the size of a server’s station, the seasons, and the mood of customers.[8] In addition to these factors, tipped employees are often required to tip out non-tipped employees such as hostesses, bartenders, and busboys.[9] Further, tipped employees often cannot rely on steady work hours. Employers often call employees in at the last minute to deal with popular dining or drinking times, and send people home when it is slow to save on expenses.[10] Additionally, some restaurants require wait staff to pay for tables that walk out on their bills, further decreasing the amount of tipped income they take home at the end of the day.[11]

With all the above factors stacked against tipped employees, are they really making that money back on a steady basis? A bill recently went before the legislature to raise the minimum wage, which included increasing wages for tipped employees.[12] The new proposed laws “called for the tipped wage to rise gradually so that by 2020 it would equal 70% of the proposed new minimum of $10.10 an hour.”[13] This would have increased the minimum wage for tipped employees for the first time since 1991.[14] However, every House Republican and six House Democrats voted against the bill, leaving the rate unchanged.[15] After the vote, President Obama issued an executive order raising the minimum wage “for contract workers performing services and those in construction.”[16] White House spokesman Bobby Whithorne stated, “Higher wages will attract higher-quality workers who are more productive, reduce turnover, which can significantly offset the cost of providing higher wages.”[17] The executive order issued by President Obama will also require employers to “ensure that tipped workers earn at least $10.10 an hour…[and] that amount increases by 95 cents per year until it reaches 70% of the regular minimum wage.”[18] This order will take affect on January 1, 2015.[19]

This change to the minimum wage laws will help lift the burden that waiters feel, by ensuring that they actually get paid at least minimum wage. Lawmakers and legislators need to continue stay on top of updating wage standards, to prevent another twenty years from going by while tipped employees lose out on earned wages.

[1] See Fact Sheet #15: Tipped Employees Under the Fair Labor Standards Act (FLSA), U.S. Department Lab. Wage & Hour Division 1, (last updated July 2013).

[2] Id.

[3] See Wage and Hour Division: Minimum Wages for Tipped Employees, U.S. Department Lab. (Sept. 1, 2014),

[4] See Wage and Hour Division, supra note 3.

[5] See id.

[6] See Wages: Minimum Wage, U.S. Department Lab., (last visited Oct. 22, 2014).

[7] See Steven Greenhouse, Proposal to Raise Tip Wages Resisted, N.Y. Times (Jan. 26, 2014),

[8] See Jeanna Smialek, Waitresses Stuck at $2.13 Hourly Minimum for 22 Years, Bloomberg (Apr. 25, 2013, 12:01 AM),

[9] See Fact Sheet #15, supra note 1.

[10] See Anna Haley-Lock, Waiting Tables for a Living: How Employers and Geography Affect Working Conditions, 30 Focus 30, 30 (2013), available at

[11] See Luke O’Neil, Victimized Twice, Slate, (last updated Dec. 9, 2013).

[12] See Will Wrigley, House Republicans Unanimously Vote Down Minimum Wage Increase, The Huffington Post, (last updated Mar. 15, 2013, 6:41 PM).

[13] See Wrigley, supra note 12.

[14] See Id.

[15] See Id.

[16] See Roger Runningen & Kathleen Miller, Obama to Raise Minimum Wage for Contractors to $10.00, Bloomberg (Jan. 28, 2014, 3:50 PM),

[17] See Roger Runningen, supra note 16.

[18] See Laura Clawson, Obama to Sign Order Raising Minimum Wage for Federal Contract Workers, Daily Kos (Feb. 12, 2014, 5:15 AM),

[19] See Clawson, supra note 18.

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Watch Your Language: How an Accent Affects One’s Employment

by Andrey Vitko

The world is becoming a more and more international place. People from all over the world immigrate to different countries – and, obviously, they need to work. It can be a bearable task to learn a different language, but some people have a hard time learning to pronounce new sounds that they did not learn when they were young.[1] The result is accent, a specific way of pronunciation of a language, associated, for example, with a particular nation or region. So the question becomes, can one’s accent affect one’s employment status?

Apparently, it can. An example is the case of an ex-Russian truck driver, Ismail Aliyev, who was allegedly fired because of his hard Russian accent.[2] Ismail and his family fled from Russia to the state of Utah, seeking political asylum as Turks.[3] He started to work as a licensed truck driver in 2009, and, as his lawyer contended, this is where the first employment problem he encountered arose.[4]

This problem occurred in September 2012, when Ismail worked for GNB Trucking Company, a small business that owns and operates FedEx-branded trucks.[5] In September, as Aliyev says, he received a warning about his accent from a weigh-station.[6] It is unclear whether Ismail passed the English language sufficiency test at the company.[7] His son, who speaks flawless English, maintains that his father passed the test, while Ben Ishhanov, a manager for the trucking outfit, stated that Ismail failed the test given in the FedEx’s office.[8]

Subsequently, Ismail Aliyev filed a lawsuit at the end of 2012, with Robert Wilde as his representative.[9] Plaintiff contended that he was fired due to his national origin, and therefore his civil rights had been violated.[10] Defendant moved for dismissal for the failure to state a claim.[11] The court found these facts:

On August 25, 2011, Ismail was stopped by an inspection officer from the Iowa Department of Transportation for an inspection.[12] Among issuing a citation for exceeding the maximum hours of service in one shift, the inspector made a report claiming that Mr. Aliyev is a “Non-English Speaking Driver.”[13] The federal requirement is that the driver “can read and speak the English language sufficiently to converse with the general public, to understand highway traffic signs and signals in the English language, to respond to official inquiries, and to make entries on reports and records.”[14] It further provides that “a motor carrier shall not require or permit a person to drive a commercial motor vehicle unless that person is qualified.”[15]

FedEx claimed that the company fired the plaintiff on the basis of federal requirement, while Ismail states that the company was required to perform a check before dismissing him.[16] The plaintiff, however, was not able to support his claim with any law.[17] The court ruled that “this disagreement . . . does not give rise to any inference that FedEx Ground terminated him on the basis of national origin, especially in light of the language of the regulations, which could arguably support FedEx Ground’s decision.”[18] Subsequently, on April 3, 2014, The United States District Court for the District of Utah granted the defendant’s 12(b)(6) motion.[19]

Ismail Aliyev may have lost this case, but there are more language-related violations happening and probably many more will happen, as the U.S. Equal Employment Opportunity Commission estimated that the percentage of workplace discrimination complaints based on national origin rose by 76% from 1997 to 2011, with more than 11,800 complaints filed.[20] Only time will tell, how many more claims will be filed, if the trend stays.[21] And the trend is likely to stay, as more and more people travel and work around the world.

[1] Betty Birner, ed., Why Do Some People Have an Accent?, Linguistic Society of America, (last visited Oct. 24, 2014).

[2] Alanna Byrne, 5 labor and employment issues to watch in 2013, Inside Council (Jan. 25, 2013),

[3]Discrimination Against Foreign Accents: A Growing Problem, Associated Press (Nov. 30, 2012, 8:55 AM), available at

[4] Id.

[5] Sami Martin, FedEx Driver Fired Over Accent Files Suit, Claims Discrimination, The Christian Post (Nov. 29, 2012, 8:04 AM),

[6] Id.

[7] FedEx fires driver over Russian accent, lawsuit says, Associated Press (Nov. 28, 2012), available at

[8] Id.

[9] Complaint Against All Defendants, Aliyev v. Fedex Ground Package Sys., Inc., No. 2:12-CV-1079-TC, 2014 WL 1338583 (D. Utah, 2014), ECF No. 2.

[10] Aliyev, 2014 WL 1338583, at *1.

[11] Id.

[12] Id.

[13] Id.

[14] Id.; see also General Qualifications of Drivers, 49 C.F.R. § 391.11(b)(2) (2014).

[15] Aliyev, at *1; see also 49 C.F.R. § 391.11(a).

[16] Aliyev, at *2.

[17] Id.

[18] Id., at *5.

[19] Id., at *9.

[20] Paul Foy, More Workers Claiming Job Discrimination Over Language, Accents, Insurance Journal (Dec. 4, 2012),

[21] See id.

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V.32 Symposium (Misclassification): Recap of Panel No.3

by Charles Smith

Evolution of the Unpaid Internship

Internships, as explained by Michael Tompkins, could be traced back to the times of apprenticeships.[1] Even though the use of internships is a common tool utilized by today’s employers, internships were virtually unheard of when the Fair Labor Standards Act (“FLSA”) was enacted, [2] and the catalyst that promotes today’s use of unpaid internships stems from the recession.[3] There is no specific number, but it is assumed that at least half a million Americans hold unpaid internships every year.[4] Unpaid internship positions started with admirable intentions, and allowed individuals to demonstrate a genuine interest in a company and particular position.[5] The intern benefited by being offered an opportunity to show potential, and the employer got an individual who was able to hit the ground running once fully employed.[6] While the use of internships has been beneficial, the potential abuse of unpaid internships led to several cases of first impression as well as legislative efforts to regulate the use of unpaid internships.[7]

Evolution of the Legal Status of the Unpaid Intern

Under federal law, the standard under which employees are required to be paid is the Fair Labor Standards Act.[8] It requires both minimum wage and overtime hours to be paid.[9] FLSA defines employee broadly – “any individual employed by an employer,” and uses words such as “to suffer or permit to work.”[10] Internships have evolved from the FLSA standard under the Supreme Court case Walling v. Portland Terminal Co., which recognized that the FLSA definition does not make all persons who, without any express or implied compensation agreement, work for their own advantage on the premises of another “employees.”[11] The court made the determination that certain individuals who work for the employer might not actually be covered under the FLSA; these individuals were classified as “trainees,” which has evolved into today’s classification of unpaid interns.[12] The factors the court looked to in determining whether the individuals were considered trainees included: no immediate advantage to the employer, required close supervision, individual’s work did not expedite the company business, and the individual was not guaranteed positions.[13]

In April 2012, the U.S. Department of Labor came out with a six-factor test to determine whether an individual was an employee or unpaid intern at for-profit companies. The test was as follows:

  • The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
  • The internship experience is for the benefit of the intern;
  • 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;
  • The intern does not displace regular employees, but works under close supervision of the existing staff;
  • The intern is not necessarily entitled to a job at the conclusion of the internship; and
  • The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

The first factor describes that the internship position must be educational in nature. The second, third, and fourth factors are the most important due to the fact that the majority of litigation involves those factors.[14] The Department of Labor has taken the position that every single element must be met for a position to be classified as unpaid internship, but, according to Amy Melican, there has been established test in the Second Circuit and the Department of Labor test should be viewed as a guideline.[15]

Since the U.S. DOL released the test that serves as a guideline in determining whether an intern should be paid, several other states has released their own tests: New York included, which came out with an eleven factor test that resembles the federal test.[16] Several industries have pushed back against the regulations—in particular, the legal industry—which utilized unpaid legal students to do work.[17] The Department of Labor responded to the criticism by allowing law students to do pro-bono work, but law students are not allowed to work on paid client work and activities.[18]

Court interpretations have varied among the circuits including a “totality of the circumstances test,”[19] “primary benefits to each party test,”[20] and the “economic reality test.”[21] In Reich v. Parker Fire Protection, the court concluded that individuals were not entitled to pay after they were instructed to do several tasks that firemen would normally do after they were given some training. The court stated that from the totality of the circumstances it concluded that they were not employees, and thus, gave deference to the DOL six-factor test. In Solis v. Laurelbrook Sanitarium, the court regarded the DOL test as a poor indicator of whether an individual was an employee, and boiled the determination down to who was the primary beneficiary in the relationship. In the more recent case of Kaplan v. Code Blue Billing & Coding, students sued Kaplan saying they should be paid for their work, and the court employed an economic reality test in its conclusion.[22]

The arguments used in favor for unpaid interns include: investment in training of future talent, continued development and engagement of future talent for the industry, allows students to go through less scrutinized process to gain experience in new field, students can learn the industry, decide whether they want to pursue a career in that field, students can apply classroom learning in “real-world” environment, provides networking opportunities for students, and allows companies to “give back” by through education/community service.[23] The arguments against unpaid interns include: makes it harder to find entry level work if companies can hire unpaid interns to fill roles, creates economic glut if companies do not offer paid positions for entry level workers, disadvantages lower socioeconomic classes who cannot afford to have unpaid positions, may result in students incurring additional debt, and unpaid interns do not have access to company-sponsored health and other benefits.[24]

Effect of Academic Credit

By offering academic credit to a worker who is nonpaid, a presumption of educational benefit to the intern is created. The DOL stated that, “the more an internship program is structured around a classroom or academic experience as opposed to the employer’s actual operations, the more likely the internship will be viewed as an extension of the individual’s educational experience.”[25] But the fact that the interns received academic credit was given little weight by the court: “[a] university’s decision to grant academic credit is not a determination that an unpaid internship complies” with wage and hour laws.[26] Including an academic component and oversight furthers that presumption of educational benefit, such as memorandums of understandings (“MOUs”) between field placement/supervising personnel at the college or university and employers.[27] MOUs can include language relating to the educational objectives, supervision expectations for frequent written and oral feedback and assessment, the obligations to help the student achieve specific learning goals, and a prohibition on billing for student work.[28]

A local example of academic credit for student work, as stated by Chris Caruso, is the externship program at the law school.[29] Each employer seeking law students to work for school credit is vetted by law school administrators.[30] The administrators employ standards closely related to the DOL six factors.[31] There are some schools, though, which instituted a policy of not awarding credit for internships to undergraduates, such as Yale and Harvard.[32] Students have been known to actually take summer courses at a different school, which allows unpaid externships, because they believed the program to be beneficial.[33]

Collective Action/Class Actions

Standards for Rule 23 certification are extremely difficult in the present environment.[34] The possible claim from a single case would not produce the type of damages lucrative enough for each case to be litigated individually.[35] Thus, class or collective actions are necessary, and firms are looking to the courts in determining how to create a cohesive class.[36] The inquiry as to what binds the class together is an ongoing determination.[37] As well, it has been difficult to find named plaintiffs to join as class members for fears of being blacklisted, and not finding a job.[38] Finally, federal courts do not favor the creation of class actions, so any developments in this area will be in the local courts.[39]

Minimizing Risk When Using Interns

To minimize risk, employers should maintain documentation regarding the intern’s understanding that his or her activities will bot be compensated.[40] Employers should, as well, track internship hours and the work that is being performed.[41] Creation of MOUs should be utilized when academic credit is connected to the work.[42] Also, if the intern ultimately transitions to a paid position, the employer should expand or differentiate between the work done as an intern.[43]

[1] Michael Tompkins, Senior Associate, Leeds Brown Law, PC, Speaker at Hofstra Labor & Employment Law Journal Symposium Unpaid Interns on the Misclassification of Workers (Oct. 24, 2014).

[2] Id.

[3] Amy F. Melican, Senior Associate, Proskauer Rose LLP, Speaker at Hofstra Labor & Employment Law Journal Symposium Unpaid Interns on the Misclassification of Workers (Oct. 24, 2014).

[4] Tompkins, supra note 1.

[5] Id.

[6] Id.

[7] Id.

[8] Melican, supra note 3.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Meryl Kaynard, General Counsel, CUNY Queens College, Speaker at Hofstra Labor & Employment Law Journal Symposium Unpaid Interns on the Misclassification of Workers (Oct. 24, 2014).

[15] Melican, supra note 3.

[16] Id.

[17] Id.

[18] Id.

[19] See Reich v. Parker Fire Protection Dist., 992 F.2d 1023 (10th Cir. 1993).

[20] See Solis v. Laurelbrook Sanitarium & Sch., Inc., 642 F.3d 518, 525 (6th Cir. 2011).

[21] See Kaplan v. Code blue Billing & Coding, 504 Fed.Appx. 831 (11th Cir. 2013).

[22] Melican, supra note 3.

[23] Tompkins, supra note 1.

[24] Melican, supra note 3.

[25] Kaynard, supra note 13.

[26] See Glatt v. Fox Searchlight Pictures, Inc., 293 F.R.D. 516 (S.D.N.Y. 2011)

[27] Kaynard, supra note 13.

[28] Id.

[29] Christopher J. Caruso, Associate Dean for Career Services, Maurice A. Deane School of Law at Hofstra University, Remarks at the Hofstra Labor & Employment Law Journal Symposium Unpaid Interns on the Misclassification of Workers (Oct. 24, 2014).

[30] Id.

[31] Id.

[32] Melican, supra note 3.

[33] Id.

[34] Tompkins, supra note 1.

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] Id.

[40] Melican, supra note 3.

[41] Id.

[42] Id.

[43] Id.

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V.32 Symposium (Misclassification): Recap of Panel No.2

by Jacqueline A. Smith

Does Your Employer Owe You an I.O.U.?

Employers that have at least two employees, and revenue of at least $500,000 in annual sales or business, are subject to the Fair Labor Standards Act (“FLSA”).[1] The FLSA creates additional guidelines for the employer in the interest of protecting employees’ rights.[2] The extent of an employee’s rights often hinge on their classification in the employer-employee relationship, i.e.: part-time versus full-time, independent contractors, etc.[3] The FLSA classifies employees into one of two categories to determine their eligibility for overtime payments: exempt and non-exempt.[4] This classification is significant because non-exempt employees are entitled to overtime payments, whereas exempt employees are not.[5] Due to dense and confusing case law on the subject, many employers wrongfully classify their employees as exempt.[6] Thus, many employees are paid less than they should be, and many employers are vulnerable to litigation and damages based upon the misclassification.[7] In fact, most large employers, including many big-box retail stores, have been hit with litigation based on the exempt versus non-exempt classifications, and most have been forced to pay back-wages based on lost overtime.[8] Employers may argue three primary categorical exemptions that their employees may fall under: executive, administrative, or professional.[9] If the employer prevails in proving that their employee falls under one of these categories, then the employee is exempt from overtime wages.[10]

For many years, big retailers were the primary target of misclassification claims; however, there has recently been a rise in “mom-and-pop” stores as the named defendants in such cases.[11] Many employers wrongfully believe that their employees are exempt from overtime wages merely because the employee is paid a salary; the fact that an employee is salaried is not determinative of their classification and can lead to major liability issues.[12] This problem commonly arises in the cases of retail managers.[13] For example, an assistant manager at a supermarket who regularly works over forty hours a week, is a salaried employee, and who spends the majority of their work time in nonsupervisory roles stocking shelves, would likely be deemed to be a non-exempt employee and qualify for overtime pay.[14] Many employers would wrongfully conclude that since the employee is salaried and holds the title as an assistant manager, the employee should be categorized under the executive exemption and not qualify for overtime.[15] But even with the many tests the courts have put forth, the bottom line is usually – what are the daily tasks of the employee?[16] As explained in the example, the assistant manager was primarily conducting non-supervisory work, and thus, that is an important factor to consider for whether an employee qualifies under the executive exemption.[17] An employer needs to carefully consider and monitor the work of their managers in order to determine whether they qualify as an exempt employee.[18] The classification of an employee as exempt or non-exempt hinges on the primary duties of that employee, the employee’s role in management, any concurrent duties of the employee, and the employee’s supervisory authority.[19]

Damages may be significant in misclassification cases, especially in light of the rise in class and collective action cases.[20] Money damages are calculated based on one of two methods in misclassification cases, either under the fluctuating work week method, or the non-fluctuating work week method.[21] Under either calculation the loss of pay and resulting damages can be thousands of dollars per year for the average salaried employee.[22] In New York State, an employee may receive damages for miscalculated pay, looking back six years.[23] Furthermore, if the employee wins, the employer must pay for the employee’s attorney’s fees. [24]

The problem is further complicated because in the case of store managers, if the employer misclassified the employee as exempt, the employer likely does not have time records for that worker because they were paid on a salaried basis.[25] The panelists urged that even if the employer thinks their employee is exempt it is recommended that the employer keep time records of the employee, because otherwise the court will accredit the employee’s version of hours worked.[26]

[1] Justin Marino, Associate, Littler Mendelson, P.C., Speaker at the Hofstra Labor & Employment Law Journal Symposium on the Misclassification of Workers (Oct. 24, 2014).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Holly Rich, Associate, Littler Mendelson, P.C., Speaker at the Hofstra Labor & Employment Law Journal Symposium on the Misclassification of Workers (Oct. 24, 2014).

[10] Id.

[11] Marino, supra note 1.

[12] Id.

[13] Rich, supra note 9.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Marino, supra note 1.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Irv Miljoner, Dist. Dir., U.S. Dep’t of Labor/Wage and Hour Div., Long Island Dist. Office, Justin Marino, Associate, Littler Mendelson, P.C. & Holly Rich, Associate, Littler Mendelson, P.C., Speakers at the Hofstra Labor & Employment Law Journal Symposium on the Misclassification of Workers (Oct. 24, 2014).

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V.32 Symposium (Misclassification): Recap of Panel No.1

by Alexa Zelmanowicz

Misclassification of Independent Contractors

The 2014 Hofstra Labor & Employment Law Journal annual Symposium focused on the misclassification of workers. One of the most common misclassifications is the misclassification of employees as independent workers. A panel of three highly respected and successful attorneys took the stage to discuss how and why misclassifying puts both workers and the public at a disadvantage.[1] Ms. Terri Gerstein, Mr. Jeffrey M. Shlossberg and Mr. Christopher A. Nicolino led the panel on Misclassifying Independent Contractors.

The cost of business is cheaper for an employer when workers are classified as independent contractors.[2] An employer does not have to pay FICA, unemployment insurance, OSLA, paid sick leave, health insurance, and the like, for independent contractors.[3] The unfortunate truth is that often employers misclassify a worker, in bad faith, to save money on taxes and expenses.[4] The obvious disadvantage for workers is that they do not receive entitled benefits.[5] A worker may be operating under the assumption that he or she is, in fact, an employee and may reasonably rely on federally mandated insurances.[6] The panel highlighted the most harmful effect purposeful misclassification has on the public.[7] When a business does not consider its workers as employees, the business is able to save money on employee spending and taxes.[8] These practices result in honest business owners having a competitive disadvantage against bad-faith competitors.[9] A disadvantage for the public is taxes that should be paid for unemployment insurance are not.[10] This state level problem results in good-faith citizens having to make up the difference of the millions in necessary unemployment taxes.[11]

The test for determining classification primarily focuses on “Direction and Control” by the employer on the employee.[12] Examples of direction and control are: 1) employer creates schedule, 2) employer supplies tools, 3) payment methods, such as hourly pay, and 4) the work that is being performed by the worker is directly related to the subject matter of the business.[13] When an employer creates the schedule, the scales tip towards employee status.[14] The same is true when the employer supplies tools and pays hourly.[15] Mr. Schlossberg stated that it is particularly strong evidence of employee status when the worker is performing duties and creating goods that are essentially the subject matter of the business. [16]

Several states are cracking down on the practice of misclassifying workers.[17] In some states, if an employer does not have insurance for someone it should, the employer is charged $2000 for each ten-day period.[18] In Florida, to avoid under the table payments, every time a business cashes a large check, the Attorney General is alerted.[19] There is a particular focus on the construction industry when it comes state mandated regulations and fines. New York and California recently enacted legislation that gives a presumption of employee over independent contractor in for construction disputes.[20] All three-panel members spoke highly of states that are becoming leaders in a new frontier for protecting employees as well as the public. The increase in attention to misclassification has the panel members’ optimistic towards the future.

[1] Terri Gerstein, Jeffrey M. Shlossberg and Christopher A. Nicolino led the panel on Misclassifying Independent Contractors.

[2] Terri Gerstein, Labor Bureau Chief, Office of N.Y. State Att’y General, Speaker at the Hofstra Labor & Employment Law Journal Symposium on the Misclassification of Workers (Oct. 24, 2014).

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Terri Gerstein, Labor Bureau Chief, Office of N.Y. State Attorney General, Speaker at the Hofstra Labor & Employment Law Journal Symposium on the Misclassification of Workers (Oct. 24, 2014); Jeffrey M. Schlossberg, Counsel, Jackson Lewis P.C., Speaker at the Hofstra Labor & Employment Law Journal Symposium on the Misclassification of Workers (Oct. 24, 2014).

[8] Gerstein, supra note 2.

[9] Id.

[10] Terri Gerstein, Labor Bureau Chief, Office of N.Y. State Attorney General, Speaker at the Hofstra Labor & Employment Law Journal Symposium on the Misclassification of Workers (Oct. 24, 2014); Jeffrey M. Schlossberg, Counsel, Jackson Lewis P.C., Speaker at the Hofstra Labor & Employment Law Journal Symposium on the Misclassification of Workers (Oct. 24, 2014).

[11] Christopher A. Nicolino, Deputy Bureau Chief, Labor, Ins. & Revenue Crimes Bureau, Office of the Suffolk County Dist. Att’y, Speaker at the Hofstra Labor & Employment Law Journal Symposium on the Misclassification of Workers (Oct. 24, 2014).

[12] Jeffrey M. Schlossberg, Counsel, Jackson Lewis P.C., Speaker at the Hofstra Labor & Employment Law Journal Symposium on the Misclassification of Workers (Oct. 24, 2014).

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Christopher A. Nicolino, Deputy Bureau Chief, Labor, Ins. & Revenue Crimes Bureau, Office of the Suffolk County Dist. Att’y, Speaker at the Hofstra Labor & Employment Law Journal Symposium on the Misclassification of Workers (Oct. 24, 2014).

[18] Id.

[19] Id. (explaining that this is done to make sure workers are not being paid under the table

[20] Id.

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