On January 5, 2018, the United States Department of Labor announced that, going forward, it would utilize the “primary beneficiary” test for determining whether interns are employees under the FLSA, consistent with recent rulings from appellate courts. Its updated Fact Sheet #71, a copy of which is linked here, explains the test, which examines “the ‘economic reality’ of the intern-employer relationship to determine which party is the ‘primary beneficiary of the relationship.” Fact Sheet #71 outlines 7 factors that courts should apply on a fact specific basis in making this determination, with no single factor being dispositive:

  1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation.
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A recent article in The New York Times questioned the propriety and effectiveness of a sexual harassment investigation conducted by a company’s Human Resources Department. The article noted the “inherent conflict of interest” at play because HR departments “while officially responsible for fielding employee complaints, also work for a company that faces potential liability.” The authors’ conclusion was that “[t]he result can often be that human resources personnel are more inclined to suppress allegations than get to the bottom of them.”

While I would question the above characterization/conclusion, and my own experience with HR-led internal investigations is that the great majority of HR departments conduct fair, honest, good-faith investigations, the article raises an interesting issue: Should HR departments more often look to outside consultants and law firms to conduct the investigations?… Read More...

Sexual Harassment Complaint Form

The latest headlines confirm the 2016 findings published by the Equal Employment Opportunity Commission (EEOC) that workplace harassment too often goes unreported. The EEOC reports that “approximately 70% of the individuals who experienced harassment never even talked with a supervisor or manager,” meaning that they didn’t report it to their employer.… Read More...

In a decision with potentially huge ramifications for the construction industry, the Fourth Circuit Court of Appeals found that employees of a framing and drywall subcontractor were also the employees of a general contractor for purposes of federal employment laws. Therefore, contractors might find themselves on the hook for their subcontractors’ violations of the law, even if the general contractor had nothing to do with the alleged violation.… Read More...

Haynsworth Sinkler Boyd’s Employment Group is pleased to announce the schedule for our upcoming Employment Law Seminars.
HR professionals are invited to join us for a program that will cover current issues in Employment law in a fast-paced, plain-English way. These complimentary seminars qualify for 3.0 hours of continuing education credit with CLE, SHRM and HRCI credit available.… Read More...

Late Thursday evening after President Trump issued an Executive Order earlier in the day directing various administrative agencies to take suggested actions for the hope of reducing the cost of health insurance, discussed here, the Trump Administration announced it would terminate cost-sharing reduction (“CSR”) payments based upon guidance to the Administration by the Department of Justice indicating that there is no federal appropriation for the CSR payments.… Read More...

In a one page opinion, the United States Supreme Court remanded one of the two “travel ban” cases pending SCOTUS review. The Order remanded Trump v. International Refugee Assistance Project back to the 4th Circuit Court of Appeals because the case is now “moot” – the Court found no controversy because the challenged Executive Order 13780 “expired on its own terms.” The Court provided no opinion on the merits of the case.… Read More...