April 17, 2014

5 Tips for Finding the Right Lawyer for Your Case

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Employment law is highly technical. Winning an employment law case requires knowledge of case law, statutory law, constitutional law, and regulatory law. There are rarely simple employment cases.

Therefore, you need to retain someone who knows what they are doing. Here are five ways to find the right lawyer for your case:

  1. The lawyer should advertise himself as one who represents employees as opposed to, for instance, an attorney who describes himself as a general litigator. 
  2. Look for a lawyer who puts his advertising dollars where his mouth is; that is, the attorney should do more than simply say he does employment law. He should have written about the topic and have information to give you about employment law. 
  3. The lawyer should be able to tell you about employment cases that he has successfully litigated in the recent past. 
  4. The lawyer should have experience in the particular area in which you need help. A breach of contract case in Virginia is very different from a race discrimination case in DC. 
  5. The lawyer should have trial experience. Defendants are more likely to offer favorable settlements if they believe your attorney will take your case to trial, if necessary. However, extensive trial experience is not necessary. Civil cases, like employment cases, most often settle before trial. If it came down to it, I would choose the experienced employment lawyer over a seasoned trial lawyer without employment law experience.

April 10, 2014

How Do Lawyers Charge Their Clients?

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Employment lawyers get paid in various ways. Today I'll describe five of the most common.

1. Hourly

The most traditional way lawyers bill in any practice is by the hour. Rates in this area vary but can range anywhere from $250 to $500 per hour. The advantage of this type of system is that the lawyer gets paid only for the time he or she works on your case. The disadvantage is that the bill for any particular month will be unpredictable.

2. Retainer Payments

Many lawyers who bill hourly require what is called a retainer. This is a down payment by the client toward future fees. The client gives the lawyer a sum of money, which the lawyer deposits into a trust account. These funds still belong to you, the client. The lawyer will deduct funds from the trust account, according to an agreement with you, as he works on your case. An "evergreen" trust account is one that, by agreement, you must replenish when the balance of the account drops below a certain amount. The amount you put in the trust account is chosen by the lawyer. Generally, the more complicated the matter (for instance, matters in active litigation), the bigger the retainer.

3. Contingency 

Contingency fee agreements are those in which the lawyer collects fees only if you win: that is, his fees are "contingent" upon your success in either settlement or trial. Generally, a lawyer in these situations gets a third of the money that you win. So, if you settle your case for $10,000, the lawyer would get $3,330, regardless of how much work the lawyer has put into the case. These fee agreements are the norm in physical injury cases. The advantage to these fee arrangements for the clients is clear: you don't have to pay anything unless you win. The disadvantage is that you may end up paying more to the lawyer than you would have if you paid hourly. For instance, let's use the example above and assume you win $10,000. Let's also assume that your lawyer spent five hours total on the case and charges an hourly rate of $300 per hour. Under a contingency fee arrangement, you pay $3,300, but if you paid hourly, you'd pay less than half of that amount: $1,500 (5 x $300). Another disadvantage to contingency fee arrangements is that lawyers who use them are (understandably) very careful to take only those cases that have a good chance of success. Thus, a lawyer who bills on contingency may not take your case simply because it has a good, but not great, chance of success. Some employment lawyers bill on contingency, though many do not given the uncertain nature of employment litigation. 

4. Contingent Hourly Billing 

This is a variation of the straight contingency case. In these cases, like straight contingency cases, clients do not pay their attorney unless they win at trial or receive a settlement. Unlike a straight contingency fee case, the lawyer keeps track of his hours and bases his fee on an hourly rate rather than on the percentage of the win. Thus, if you win $10,000 and the lawyer has billed five hours at $300 per hour, he gets $1,500. But if he has billed 20, he gets $6,000. These arrangements apply only when there is a "fee-shifting" statute. That is, a statute that allows a court to award attorneys' fees to the winner. In an employment context, this means that, if you sue your employer and win, the employer must pay its attorneys' fees AND yours. Discrimination and civil rights statutes often have fee-shifting provisions. Fee-shifting does not apply to breach of contract and defamation cases. Thus, if you win one of these cases, you must pay your own attorneys' fees. 

5. Mixed Hourly/Contingent

This is an arrangement in which the client pays a portion of the hourly rate with the rest to be recovered only if the case settles or if there is a victory at trial. For instance, if your attorney's hourly rate is $300, a mixed contingency arrangement might be an agreement by which the client pays $200 per hour with the attorney collecting the remaining $150 at settlement or trial, plus a percentage of the winnings, though less than the third in a full contingency case. Your attorney will generally choose the arrangement that will work best after reviewing your case and paying close attention to the likelihood of achieving settlement or victory at trial. That is, the attorney will determine the risk of losing the case. Cases are expensive to litigate, both in terms of cost and attorney time. An attorney will not take on a case on full contingency---and bear all the risk of loss---if you have a weak case. However, an attorney may take such a case if the client is willing to bear all of the risk by paying a straight hourly rate.

April 3, 2014

Is It Illegal to Discriminate Against an Employee Who Seeks a Work-Life Balance?

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There has been a spirited debate in this country about the role of women in the workplace. Whether it involves Sheryl Sandberg's best-selling book, Lean In, or the furor about Melissa Meyer's decision to end telecommuting at Yahoo, the issues of family and work are hot buttons--and well they should be.

But it is important to remember that these debates are, in large part, not legal ones. To the contrary, in most places in this country, it is perfectly legal for a company to pay an employee less, or even fire her, if she made no secret about the fact that she planned to prioritize her family over her work and acted accordingly by working fewer hours than other employees provided that--and this is key--the company applied this policy in a neutral manner to both men and women and regardless of the reason for leave. For instance, it would be legal for a company to cut the pay of a Stan when he starts to take significant time off from work to take care of his two daughters, as long as the company did the same thing to Stacy, who chose to take significant time off for sailing. In essence, companies are allowed to reward those who demonstrate loyalty to the company.

How This Plays Out in Court

An excellent example of this was a case brought by the EEOC against Bloomberg Media claiming that the company had a pattern and practice of discriminating against pregnant women and those with children by reducing their pay and responsibilities at work. At the close of discovery, the court dismissed the bulk of the EEOC's case, finding that the evidence failed to show that those who prioritize family over work were not systematically discriminated against. The full name of the case is EEOC v. Bloomberg L.P. In addition to the class action, several individual plaintiffs joined the lawsuit. The court allowed many of the individual cases to proceed.

Agree or disagree with her decision, Judge Preska issued a well-written explanation of the intersection between the law and the national debate over work-life balance:

Absent evidence of a pattern of discriminatory conduct--i.e., a pattern that women or mothers were discriminated against because of their pregnancy as compared with others who worked similar schedules--the EEOC's pattern or practice claim does not demonstrate a policy of discrimination at Bloomberg. It amounts to a judgment that Bloomberg, as a company policy, does not provide its employee mothers with a sufficient work-life balance. There is considerable social debate and concern about this issue. Former General Electric CEO Jack Welch stated, "There's no such thing as work-life balance. There are work-life choices, and you make them, and they have consequences." (citation omitted) Looking at it purely from a career- or compensation-focused point of view, Mr. Welch's view reflects the free-market employment system we embrace in the United States, particularly for competitive, highly paid managerial posts such as those at issue here. But it is not the Court's role to engage in policy debates or choose the outcome it thinks is best. It is to apply the law. The law does not mandate "work-life balance." It does not require companies to ignore employees' work-family tradeoffs--and they are tradeoffs--when deciding about employee pay and promotions. It does not require that companies treat pregnant women and mothers better or more leniently than others. All of these things may be desirable, they may make business sense, and they may be forward thinking. But they are not required by law. The law simply requires fair treatment of all employees. It requires holding employees to the same standards.


In a company like Bloomberg, which explicitly makes all-out dedication its expectation, making a decision that preferences family over work comes with consequences. But those consequences occur for anyone who takes significant time away from Bloomberg, not just for pregnant women and mothers. To be sure, women need to take leave to bear a child. And, perhaps unfortunately, women tend to choose to attend to family obligations over work obligations thereafter more often than men in our society. Work-related consequences follow. Likewise, men tend to choose work obligations over family obligations, and family consequences follow. Whether one thinks those consequences are intrinsically fair, whether one agrees with the roles traditionally assumed by the different genders in raising children in the United States, or whether one agrees with the monetary value society places on working versus childrearing is not at issue here. Neither is whether Bloomberg is the most "family-friendly" company. The fact remains that the law requires only equal treatment in the workplace. Employment.

I am not suggesting that work-life issues in the workplace can never result in violations of the law. Clearly, they can. Indeed, many work-life issues arise when a company or a manager takes action based on discriminatory beliefs about how an employee should create that balance. Still, as the Bloomberg case illustrates, a company is not required to facilitate a sensible work-life balance, though it certainly makes good business sense to do so.

March 27, 2014

6 Ways to Wreck Your Employment Law Case, Part 3


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In this final post of a three-part series (see
posts one and two here), I'll cover two additional ways you
may be unknowingly harming your legal claims against your employer.

5. You fail to bring your case at all.

A woman once came to me to discuss blatant and
cruel mistreatment heaped upon her by her boss at a large retail store. She
told me she was one of the few to speak out against him. She said that there
were other workers in the store who were afraid to report the manager's abuse.
Several of the workers were elderly, and some did not speak English well. They
were scared of losing their jobs. This woman came to me after making several
unsuccessful attempts to use the company's "confidential" complaint
hotline. As I talked to her, it became clear that she had a strong case that
her boss not only discriminated against her because of a disability but also
repeatedly retaliated against her when she asked for simple accommodations at
work that would allow her to do her job. Had she not come to me (or another
lawyer), nothing would have been done about it. Her case makes me wonder how
many people in that store alone experienced unlawful discrimination that will
never be remedied.

Moral: Don't be afraid to ask for help.
Seeing a lawyer is confidential and does not obligate you to do anything. And
don't give up just because one lawyer decides not to take your case. Call two
or three lawyers for a consultation before you decide that you do not have a
case.

6. You bring a case when you do not have one.

The flip side to number five is that not all
unfair--or even cruel-- actions in the workplace are illegal. A woman once came
to see me when she had been fired from her administrative assistant position
after taking time off to attend her grandfather's funeral. During her approved
absence, one of the business owners--who was difficult to work with--needed
something in the administrative assistant's files but could not find it. A
quick call to the assistant would have solved the problem, but the business
owner did not bother to make the effort.

The angry owner fired the assistant two days
after she returned from the funeral. Unfair? Yes. Illegal? In this case, no.
While one could appropriately call this "wrongful termination," it
was not wrongful in a legal sense.

The legal definition of wrongful termination
is quite narrow--that is, the termination must have been for a discriminatory
or illegal purpose (e.g., to stop you from reporting fraudulent behavior).

Moral: Much improper behavior in the
workplace is not illegal, and bringing a lawsuit will only be a waste of money
and time. Determining what is illegal in the workplace can be difficult, and
sometimes it is not intuitive. What should you do? You guessed it-- see a
lawyer. However, if you've talked with three or four lawyers who are
knowledgeable in employment law and each of them tells you that you do not have
a case, you probably do not have a case. Using the courts to try to remedy improper,
but not illegal, conduct can be a time-consuming and costly mistake.

March 20, 2014

6 Ways to Wreck Your Employment Law Case, Part 2

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In our last post, we discussed two ways many people unintentionally sabotage their employment law cases. Today, we'll look at two more common mistakes made by employees who have potential claims against their employer.

3. You have removed files from your employer's computer to use in your case.

It is tempting to copy a bunch of files off your employer's computer that you believe might help your case.

Printing or copying company emails addressed to you might not cause a problem, but taking material not addressed to you could actually expose you to civil and, in rare cases, criminal penalties. The Computer Fraud and Abuse Act is primarily targeted at hackers seeking to access government or business computers, but the language of the Act is broad, making it illegal to access material on a computer hooked up to the Internet without authorization. Employers have threatened to bring suit under the Act against employees who copy large amounts of company electronic data for their own personal use--for example, in a lawsuit against the company.

As a practical matter, it is unlikely that an employer would win such a lawsuit, and the chances are slim that the government would prosecute a private litigant for this activity. But why give yourself the hassle? If you know of documents that could be relevant to your case, note the existence of the documents and where they can be found on the company's computer. If you sue, your attorney can ask for, and in most cases is entitled to receive, these documents.

What if you have already taken these documents? Don't worry. Just tell your attorney. He or she should make an index of the documents and then return them to the company. The attorney will then turn right around and ask for them in discovery.

Moral: Never remove files from your company's computer with the intent of using them for your case. Simply make a note of where the documents can be found. If you have already removed files, let your attorney know.

4. You signed a severance agreement without consulting a lawyer.

You've had problems at work. Your boss was giving you a hard time for coming in late a few times a week. You were late because you are caring for a disabled parent. When your boss writes you up, you complain to HR. A week later, the HR Director meets with you and tells you that "things are just not working out" but says the company doesn't want any hard feelings. He offers you a severance of three months' salary. The severance agreement is four pages long and filled with legalese. You take it home, stunned. A week later, ready to be done with the whole experience, you sign the agreement and mail it in.

One month later, you learn from a colleague that your boss sent an email about you that said: "It was either the job or the invalid. She chose the invalid." When you consult with a lawyer, you learn that it is illegal for an employer to fire an employee simply because he or she has to care for a disabled family member. But now, it's too late to do anything about it. You've already signed away your right to sue in court.

Moral: Do not sign a severance agreement without seeking advice from legal counsel. And do not let your employer bully you into signing one. Many employers will allow you a week to consider and may even encourage you to consult a lawyer. If your employer does not offer you time to consider the agreement before signing, ask for a few days to review it before you decide what to do.

March 13, 2014

Recipe: Tom Spiggle's Never-Get-Sick-Even-If-You-Have-a-Bunch-of-Germy-Kids Oatmeal

oatmeal.jpgThese health claims have been evaluated by no one, true enough. But I can say that I have gotten sick less--and with four kids ages 8 to 1, I have plenty of opportunity--since I started eating this oatmeal. So here goes. 

The amounts are suggestions. Feel free to experiment.

Ingredients and Directions

• ½ cup of rolled oats
• ½ cup milk (I use 2%)
• ¼ or ½ cup water (or milk again), whichever you prefer (more if you like it a bit soupy (me), and less if you like it to be like cement (my wife))

Microwave for 6 minutes at 60% power (time may vary by microwave). While it is cooking, prepare the following ingredients:

• 3 or 4 sliced dates (You can substitute raisins, but I've found that they aren't sweet enough alone. If I use them, I add about a teaspoon of brown sugar.)
• ¼ cup chopped walnuts
• ¼ cup chopped pecans
• ¼ cup apple, peeled and chopped
• 1 tsp of chopped ginger, raw (Ginger is my secret ingredient. Raw ginger has a kick, but I've found that it is balanced out by the dates. If you think it's too much, try candied ginger.)

Dump it all in, mix it up, and enjoy. Even share it with your germy toddler who begs for it although she's already had her breakfast.

Overnight Version

You can also make this the night before and heat it in the morning. I even like to eat it cold. (Note that the longer you let it sit, the more liquid the oats will absorb, so you can expect the consistency to be thicker if you leave it overnight.)

Heavy-Duty Version

If you want to transform this into I-Have-a-Big-Meeting-and-Will-Not-Be-Able-to-Eat-Lunch Oatmeal, substitute a higher fat milk than you usually do (e.g., use whole milk if you usually use 2%). Also add ⅛ cup (or a splash) of heavy cream. This stuff will power you most of the day.

March 6, 2014

6 Ways to Wreck Your Employment Law Case, Part 1

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Employment law is highly technical and can be overwhelming. You might feel as if you have a case but you are wondering what to do next. You may be unsure about how your case would do in court, or you may have so many questions that you don't know where to begin. While it is a good idea to consult an attorney knowledgeable in employment law, you can start by avoiding these five pitfalls.

1. You fail to go to the EEOC or file suit quickly.

Many employment claims--particularly those involving discrimination--require that you go the U.S. Equal Employment Opportunity Commission (EEOC) before you sue in court. Failure to do so may mean that you will forever lose your right to sue your employer. For federal employees, you have as little as 45 days to bring your case to your agency's EEO officer. For employees of private employers, you have either 180 or 300 days to file a charge. Filing a charge is not a difficult task, and it is free. If you have questions about filing with the EEOC, contact the agency (www.eeoc.gov), or go to your local field office.

You can also satisfy this requirement by visiting your state counterpart to the EEOC. In the District, it is the Office of Human Rights. In Virginia, it varies by county, but most counties have a Human Rights Commission, including Arlington (703-228-3929), Fairfax (703-324-2953), and Alexandria (703-746-3140).

Please note that you may not be required to go to the EEOC to preserve your claim. For instance, overtime claims and those involving the Family and Medical Leave Act (FMLA) are not handled by the EEOC, and you are not required to file with another agency before going to court.

Other claims that come up in the employment context may have short time limits. For instance, in most states, unwanted touching ("assault and battery") has a short statute of limitations of only one year. I had one case in which my client's supervisor spat in her face during an argument. She didn't realize this was illegal and didn't visit a lawyer until one year later, when it was too late to sue for assault.

Moral: If you believe you have an employment claim, consult an employment attorney or contact the EEOC as soon as possible.

2. You rely only on the EEOC.

While you may be required to bring your claim to the EEOC first (depending on the claim), don't stop there.

There are many top-notch investigators and attorneys at the EEOC, but this is not universally true. Your case may be assigned to a mediocre case agent or one who is overworked and therefore unable to do a good job. If that's the case, the agency is likely to decline to take your case. This does not mean that you have a "bad" case; it just means that you need a lawyer to take your case to court.

Moral: The EEOC may be a necessary first step, but in many cases, it is only a first step. Don't give up just because the EEOC or your state agency doesn't give you the help you need and deserve.

Next time, I'll reveal two more ways you may inadvertently destroy your chances of filing a successful lawsuit.


February 27, 2014

5 Things to Consider When Negotiating an Employment Contract

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If you're lucky enough to be in a position to negotiate for a new job, particularly one with an employment contract, congratulations. But before you sign on the dotted line, try to keep in mind everything that could go wrong on your job. This can be difficult to do given that you are going into a new position with expectations that it will work out. So, when looking at the agreement, think about what protections you would want if your employer fires you.

Some of the most important provisions to think about are these:

1.     Termination for cause: This is a big one. Employers in almost every state have a tremendous advantage in that employment agreements, even written ones, are assumed to be "at will," which means any party can end the relationship at any time for any legal reason. A contract provision requiring termination for cause means that your employer must have a good reason for ending the relationship. It's also a good idea to define the term "for cause" in the contract, outlining exactly what the employer will deem to be "cause."

2.     Signing bonus: Most executive positions have a signing bonus, and for good reason. Executives in a position to demand a written contract often have other offers or an existing position that they have to forgo to take the new job. A signing bonus can provide some protection to the executive if the job goes south quickly. Make sure that it is a true signing bonus and does not require you to be on the job for a certain amount of time. (I once had an executive client who was fired from his new job, which paid in excess of $300,000, within one week of starting. The signing bonus provision provided that he would be paid within 10 days of starting his job. The employer argued that it meant he had to be employed for 10 days before being eligible. It eventually abandoned that argument.)

3.     Stock options/benefits: In some employment contracts, the benefits and stock options are worth more than the salary. If you are in that position, you probably have some familiarity with what agreement would be favorable to you. Nevertheless, given the complexity of these agreements, it could be well worth your while to consult an attorney. For those new to the game, a big issue is when stocks "vest"--that is, become yours. Your contract should provide for what happens to your stock options if you leave the company.

4.     Non-competes: These provisions prevent you from competing with your former employer when you leave. The most important terms are time and geography. How long will the restriction last? What area does it apply to? Within a 30 mile radius of the company? The entire state? The entire Eastern seaboard? Courts do not like overly restrictive non-competes, but they are more likely to enforce a broad non-compete if it is part of a severance agreement.

5.     Intellectual property: You may create things for your company. The company will want the unique things you create--called intellectual property--to belong to it, not you.

These contractual provisions are very complicated and warrant review by a lawyer, particularly noncompetes and clauses affecting intellectual property. To ensure you get the maximum protection, consult an attorney before signing on the dotted line.


February 20, 2014

Avvo Recognizes Tom Spiggle's Awesomeness

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Avvo is an online service with an attorney locator-function and other services for individuals looking for an attorney.

Using some secret formula that allows the program to peer into an attorney's soul, Avvo also rates attorneys on a scale from 1 to 10. Studies have conclusively proven that attorneys who score a 10 are better than those who do not.

The Spiggle Law Firm is pleased to announce that Tom Spiggle has achieved a rating of 10 out of 10.

When interviewed about this at his home, Mr. Spiggle said, "You know, when I look at myself in the morning and flex before brushing my teeth, I always say to myself, 'You, Tom Spiggle, are not an 8.0 or a 9.0 or even a 9.9: you are a 10!' I am so glad that now Avvo, using its soul-peering capability, has confirmed what we all know to be true."

Never content to rest on his laurels, Mr. Spiggle said that even though Avvo stops at 10, he will push forward to 11, noting, "You see, most attorneys will be practicing law at 10. You're on 10 here, all the way up, all the way up, all the way up. You're a 10 in your practice. Where can you go from there? Where? . . . Eleven. Exactly. One better."

February 13, 2014

Internships and the Minimum Wage, Part 2

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In our last post, we discussed the basic rules that determine whether interns are entitled to be paid the minimum wage. Today, we'll look at how several courts have interpreted these rules.


Federal Court Orders Movie Studio to Pay Interns Back Wages

In June 2013, the trainee exception entered the national consciousness with a New York federal court's decision in Glatt v. Fox Searchlight Pictures. In that case, the court considered the six factors listed in the Department of Labor's 2010 Fact Sheet and determined that under the totality of the circumstances, interns performing low-level tasks that immediately advantaged a movie studio did not fit the trainee exception and had to be paid. The court noted that the work performed by the interns was menial and essential, that their experience did not approximate an educational environment, and that benefits like references or knowledge of production office functions were incidental to employment and not the result of a uniquely educational program. In the aftermath of this decision, many former interns initiated suits against employers, and several companies suspended their unpaid internship programs.

How Do Federal Courts in D.C., Maryland, and Virginia View Unpaid Internships?

In McLaughlin v. Ensley, the Fourth Circuit, which hears appeals and establishes binding precedents for federal courts in Maryland and Virginia, considered how to apply the trainee exception to the FLSA in light of Walling v. Portland Terminal. While the court acknowledged the existence of the Department of Labor's Wage and Hour Division's test, the court determined that Fourth Circuit precedent required them to apply the general test of "whether the employee or the employer is the primary beneficiary of the trainees' labor." The court considered the breadth of skills the trainees learned and the transferability of their training to other employers. Applying that test, the court found that trainees who worked for a week learning how to deliver and service a vending machine route were entitled to pay under the FLSA.

Since then, only a few district court decisions in the Fourth Circuit have interpreted the trainee exception, but each has followed the primary beneficiary test, including Carter v. Mayor & City Council of Baltimore City and Reich v. Shiloh True Light Church of Christ. In Reich, the district court acknowledged that McLaughlin "expressly disregard[ed] the Wage and Hour Division's six part test" and found "the primary beneficiary test enunciated in Ensley is directly controlling." Applying the primary beneficiary test, the court found that child laborers were entitled to pay when they helped complete 97 construction projects for a church that made hundreds of thousands of dollars from the work of purported volunteers. In Lane v. Carolina Beauty Systems, Inc., 1992 WL 228868 (M.D.N.C. 1992), a district court found that a trainee was the primary beneficiary of her position as a teaching assistant where the school did not receive an immediate benefit and the trainee received experience that allowed her to sit for an examination sooner.

Meanwhile, neither the D.C. Circuit Court of Appeals nor the lower D.C. District Court has announced an interpretation of the trainee exception.

February 6, 2014

Internships and the Minimum Wage, Part 1

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The concept of a minimum wage is so fundamental to our American sense of employment justice that we usually only discuss and debate the rate workers must be paid, not the existence of a minimum generally. However, if you or someone you know is trying to break into a certain field, you may be (painfully) aware that the minimum wage does not apply to a growing number of positions called unpaid internships, where the intern works in exchange for training and experience. Today's post looks back at the origin of the exception that allows unpaid internships, and the next post will explore its modern limits through some case examples.

Where Did the Law Allowing Interns to Work for Free Originate?

In 1938, Congress passed the Fair Labor Standards Act, which established the minimum wage and overtime requirements for many jobs. Less than 10 years later, the U.S. Supreme Court announced the "trainee" exception, allowing employers to use unpaid workers in educational or training settings in Walling v. Portland Terminal Co. The Court held that the FLSA's definition of employee--that is, a worker entitled to wages--did not include a person whose work serves only his own interest and not the interest of the person giving him instruction. In crafting an exception to the employee wage requirements, the Court noted that the trainees at issue in Walling did not displace any regular employees, did not expedite the employer's business and often impeded efficiency, and worked in an environment that was similar to a vocational school.

What Are the Modern Rules for Unpaid Internships?

Considering the U.S. Supreme Court's "trainee" exception, the U.S. Department of Labor issued a Fact Sheet to be used as guidance when determining whether positions must be paid. The fact sheet outlines six criteria:

  1. The internship, even though it includes actual operation of the facilities of the employer, is 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 does not displace regular employees, but instead 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 six factors are met, the relationship is within the "necessarily narrow" exception to the FLSA minimum wage requirements. 

The Fact Sheet also provides greater guidance for each criterion.

1. Similar to an Education Environment and the Primary Beneficiary of the Activity

The more the internship is structured around classroom or academic experience and the less it is structured around the employer's actual operation, the more likely it fits within the FLSA exception. "[T]his often occurs where a college or university exercises oversight over the internship program and provides educational credit." The more the internship provides general skills and not skills particular to the operation, the more likely it fits the FLSA exception because the intern does not perform the routine work of the business and the business does not depend on the intern. However, if interns perform "productive work (for example, filing, performing other clerical work, or assisting customers), then the fact that they may be receiving some benefits in the form of a new skill or improved work habits" does not exclude them from the minimum wage requirements.

2. Displacement and Supervision Issues

When employers provide job shadowing opportunities or when an intern performs minimal work and learns skills under the close supervision of an employee, the internship is likely to be viewed as educational. However, if the intern receives the same level of supervision and training as regular employees, the relationship probably falls outside of the FLSA exception. Additionally, interns used to substitute for regular workers or to augment the existing workforce must be paid in accordance with the FLSA. In general, if the employer would have hired someone but for the existence of the internship, then the intern must be paid.

3. Job Entitlement

The internship should have a fixed duration, established at the outset. Unpaid internships should not be used as a trial period for a person seeking employment at the end of the internship, and if the intern "is placed with the employer for a trial period with the expectation that he or she will be hired on a permanent basis, that individual generally would be considered an employee under the FLSA."

Tune in next time as we look at how courts have evaluated these factors.

January 30, 2014

What If I Find Myself in a Sticky Situation at Work?

sticky.jpgThere are times when workplace problems can result in criminal liability. Any time you get caught up in a workplace investigation, you should be concerned about potential problems with law enforcement.

In most other areas, you know when you might have a criminal law problem. Rob a store or get pulled over while driving drunk, and you know you'll be in trouble with the law. However, in "white-collar" investigations--ones that often start in the workplace--it can be difficult to tell when you have violated some obscure regulation. This is particularly true in heavily regulated businesses like government/military contracting, pharmaceuticals, shipping, and import-export companies. It is also true for multinational corporations with significant dealings with Second or Third World countries.

General Tips for All Investigations

The difficulty with investigations conducted by these types of employers is that they are conducted without regard for employee constitutional rights. For instance, if you work for a pharmaceutical company and get interviewed by compliance, you may have no idea what the investigation involves or that what you say could be turned over at a later time to federal law enforcement. They could use that interview against you without regard for your right to speak to law enforcement and to contact a lawyer.

The bottom line: For these reasons, you should always consult a lawyer if you get called for an interview by your company's compliance officer or your company's attorney. An attorney does not necessarily need to accompany you to the interview, but he or she can advise you of your rights and determine whether you have any criminal law exposure.

What's Different About Government Investigations

The same issues also apply to government employees, but government employees face an added layer of difficulty because workplace investigations in the government are often conducted by internal affairs or someone with the Office of the Investigator General (OIG). Sometimes, these offices can be very aggressive in their investigations for political reasons. In addition, in some instances, lying to an OIG investigator can violate federal law. In rare instances, employees can get caught up in a full-on criminal investigation. In extreme situations, this can involve the FBI (or another government agency) raiding an employer to seize documents and to attempt to speak to employees. Unlike investigations by a company's compliance office, these are either criminal investigations or prosecutions, and agents should advise you of your rights not to speak to them--that is, your Miranda rights. But these are trained investigators, and they will attempt to get you to talk anyway. In fact, it is lawful for them to lie to you in an effort to urge you to talk.

The bottom line: For many reasons, it is never in your best interest to talk to law enforcement, even if you have done nothing wrong. Asking for an attorney will never hurt you (even if the agents suggest otherwise). If you find yourself in this situation, unequivocally tell the agents that you do not wish to talk and that you want your attorney.

 

January 23, 2014

Porn, Your Credit, and Your Job, Part 4

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Last time, we talked about how an employer could legally fire you if your credit history revealed an $8,000 unpaid balance for a porn subscription.

Keep in mind, however, that the unpaid balance must be the actual reason that the company refused to hire you. By that, I mean the company can't just use your credit history as the legitimate reason that it refused to hire you when the real reason is that you are an African American, a woman, or disabled.

Indirect Evidence of Discrimination

How would you know that your credit history was merely a pretext--or an excuse--for real discrimination? In many cases, you wouldn't. All you would know is that you didn't get hired. But if it became apparent to you that the company was hiring a lot of Caucasian people and not hiring a lot of qualified African American applicants, then something else may be going on. In a lawsuit, your attorney would be looking for evidence that the company turned you down, citing concerns about credit history, while also hiring a bunch of white people with equally troubling credit histories. This is called indirect evidence.

Direct Evidence of Discrimination

Of course, you might find more direct evidence once you started digging around. Take this case, for instance. Here, the company--a national food distributor and marketer--refused to hire women for positions in distribution factories, according to the EEOC. In some cases like these, the plaintiff must rely primarily on statistical analysis to help show that there was a pattern or practice of refusing to hire a certain class of people. Not so in this case. Again, according to the EEOC, senior managers made comments that "were tantamount to directing the managers to favor males and to discriminate against females in hiring." The lawsuit claims that one vice president said, "Why would we ever waste our time bringing in females?" Remember, this is a lawsuit, so none of these claims have been proven. Regardless, the point is the same. If there is evidence like this in your case, the company could not easily hide behind the fact that you had a blemish on your credit history, particularly if it hired men with less-than-perfect credit records.

Future Implications

As more data becomes available on individuals, this area of the law will continue to develop. For instance, this series of posts has been about what happens if an employer learns of your red-light district activities through your use of work property or if it is reflected on your credit history. But consider this question: what if your employer could buy information about your activities on the Internet? Sophisticated marketers do this all the time. It may become possible, and inexpensive, in the near future, for a prospective employer to buy this information. As long as the company does this in a nondiscriminatory way (and lawfully obtains the information--and much of it would be fair game since you give up a significant amount of privacy when you use the Internet), there would be nothing illegal about employers using this information in hiring decisions, just as they currently do for credit and criminal history checks.

What You Can Do to Protect Yourself

What's the answer here? There is no one answer, but here are some action points for you:

·         Don't use your work computer for visiting the red-light district!

·         Know your credit history, and make sure that it is accurate.

·         If you have trouble getting in touch with the credit agency, call a lawyer who handles consumer rights cases.

·         Know that, in most states, a private employer can look at your credit history but must get permission from you to do so.

·         Do some research to see whether your state puts further restrictions on use of credit reports.

·         If you have a bump or two in your history, explain the issue to your employer.

·         Call an employment lawyer if you think an employer discriminated against you based on your sex, race, age, or disability and is simply using your credit history as a cover.

January 21, 2014

Porn, Your Credit, and Your Job, Part 3

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To answer the question from our last post about whether watching porn can affect your credit history and in turn affect your career, let's move away from my completely gratuitous detour into the world of porn to learn about how employers can and can't use your credit score.

First, it is perfectly legal in most states for an employer considering you for a position to receive a copy of your credit history--but not your credit score. Some organizations criticize this practice, noting the fact that some groups are more likely than others to have poor credit histories and that these histories often have mistakes. Nevertheless, many employers--as many as 60%--use a prospective employee's credit history as an indication of reliability. The Consumer Finance Protection Bureau has some really good information about credit scores and how to ensure that yours are accurate. Look here for more.

However, under the Fair Credit Reporting Act, a company cannot access your credit history without your consent. This is why it is often a good strategy to explain any credit problems that you have--especially if there are disputed issues on your report--to the employer requesting access to your history.

What If There's a Mistake on Your Credit History?

If the employer declines to hire you based on a mistake on your credit history, could you sue the company and win? In most states, the answer is no. The company would not be liable. Note that some states--Hawaii, Illinois, and Oregon, for instance--do limit employers' ability to use credit history in hiring decisions. Also, the party, like the credit reporting agency itself, might be covered by the FCRA. Therefore, an individual can sue the credit reporting agency under the FCRA for damages. So, if you think the problem may lie with your credit history and your credit history has inaccuracies, go talk to a lawyer. I'd look for an attorney who focuses her practice on consumer rights. Here is one example.

What About Bankruptcy?

It's worth noting that, strangely, although an employer can lawfully refuse to hire you because you have filed for bankruptcy, an employer cannot discriminate against you for filing bankruptcy if you are a current employee. You have even broader protections if a government entity is discriminating against you. For more, check out this article.

How Does Porn Relate to My Credit History?

Now, back to the porn. Let's assume that back in your youth you went a little crazy when you got your first credit card--and before you could enjoy the stuff for free--you used the card to sign up for a couple of porn subscription sites. You forgot about one of them until you got a bill from it for $8,000. Now, you didn't watch that much porn. Unfortunately, you couldn't prove otherwise, and you couldn't pay $8,000. Therefore, you just didn't pay. The company never sued you for it, and you promptly moved on with your life. But the $8,000 site is on your credit history. The name of the company, "Fun in the Dark--Adults Only," is listed on your history along with the unpaid debt. A company would be perhaps misguided, but well within its rights, to refuse to hire you for that reason.

In our next post, you will find out how you still might be able to make a legal claim for discrimination, even if your credit history reveals a slightly checkered past. 

January 20, 2014

Dr. King, Are We Winning the Battle Against Discrimination?

As our nation celebrates Martin Luther King Day, it seems appropriate to ask, How are we doing? What would Dr. King think if he were alive today?

Certainly, we have made great strides in many respects. Historically disenfranchised groups have more opportunities today than they did in Dr. King's day. Overt racism is not tolerated in the same way today (though it clearly still exits and flourishes in the dark corners of the Internet).

But as I wrote in a blog post last year, a study by the American Bar Association reports that African Americans are more likely than other races to represent themselves in court, which is a sure way to lose. As the article notes, one possibility is that some African Americans lack the resources to find a lawyer to help them.

This explanation makes sense to me. I am not social scientist, but this anecdotal experience suggests resources may be an issue. Some of you may be familiar with Avvo, a website with information about lawyers and other resources for people seeking an attorney. The site has a section that allows people to post a question for lawyer to answer. I sometimes review the questions posted for Virginia and the District of Columbia. There are often more posted for Virginia, particularly Northern Virginia. Certainly, the population difference is an explanation. There are more people in Virginia than DC. But I'm guessing that part of the reason is that there are more folks with resources--many of them white--in Northern Virginia than in D.C., ones who can fire up their laptop after to work to post a question on Avvo. (I am not saying that everyone who posts on Avvo is well-to-do. I know that many are not. Nor is this a criticism of Avvo. It is a great site that provides useful information to people seeking legal services.) I am sure that many, many people living in southeast D.C., most of whom are African American, experience discrimination. They just may not know about Avvo, much less have Verizon Fios (or a similar expensive service) that allows them to access Avvo in a split second.

Some of those commenting on the article suggest that the reason may be that African Americans are flocking to court bringing meritless cases in large numbers. Maybe. Or maybe it is because African Americans continue to experience real discrimination, yet--at least in some cases--lack resources to effectively fight back. Perhaps racism really isn't as underground as we like to think.