Intern or Employee? DOL Adopts Courts’ “Primary Beneficiary” Analysis for Determining When Your Unpaid Intern Will Be Deemed an Employee Under the FLSA
The use of unpaid interns is a common practice across many industries, especially in the D.C. Metro area. And the question recently addressed by the Ninth Circuit is not a new one: under what set of circumstances does an unpaid intern in the private sector cross the line and become an employee under the Fair Labor Standards Act (“FLSA”) and thus become entitled to compensation? Since 2010, the Department of Labor (“DOL”), when grappling with this question, has applied a . . . Read More
D.C. Circuit Weighs in on Employee’s Right to Union Representation at Disciplinary Meetings
In a recent ruling, the U.S. Court of Appeals for the D.C. Circuit has shed light on the scope of an employee’s right to union representation at an investigatory interview conducted by the employer. The prior case of NLRB v. J. Weingarten, Inc., 420 U.S. 251, 256 (1975) confirmed that an employee must be allowed to bring a union representative to any investigatory interview that he or she is required to attend, if the employee reasonably believes that the interview could . . . Read More
Restaurant Industry Headed To U.S. Supreme Court Over Tipping Practices
In 2014, the U.S. Department of Labor (“DOL”) Wage and Hour Division launched an aggressive enforcement initiative aimed at ensuring companies in the restaurant and food service industry comply with the federal minimum wage, overtime, and record-keeping requirements of the Fair Labor Standards Act (“FLSA”). Plaintiff-side employment lawyers took note immediately and began advertising to their target audience. It is not surprising, therefore, that servers, bartenders, and seasonal or event staff have advanced employee complaints based on alleged improper wage- . . . Read More
Contractor Execs Not Subject to Individual Whistleblower FCA Claims, Says Federal Judge
In a recent Memorandum Opinion, T.S. Ellis, III, U. S. District Judge for the Eastern District of Virginia, has ruled that the retaliation provision of the False Claims Act (“FCA”) does not permit a whistleblower plaintiff to sue individual employees of a corporate employer. In Irving v. PAE Government Services, Inc., et al., No. 1:16cv1617 (E.D. Va. Apr. 11, 2017), plaintiff was a former Deputy Program Manager and Chief of Security for defendant PAE Government Services, Inc. (“PAE”) in Kabul, Afghanistan. . . . Read More
4th Circuit Sets Forth Test for Determining What Constitutes “Joint Employer” for FLSA Purposes
In a pair of recent cases, the U.S. Court of Appeals for the 4th Circuit (which hears appeals from the federal courts of Maryland, Virginia, West Virginia, North Carolina and South Carolina) has set forth what will hereafter be the applicable test in those jurisdictions when determining whether two or more entities constitute “joint employers” for purposes of the Fair Labor Standards Act (“FLSA” or “the Act”). The FLSA, 29 U.S.C. §§ 201, et seq., requires employers covered by the Act . . . Read More
Seventh Circuit Rules That Sexual Orientation is a Protected Class Under Title VII
On April 4, 2017, the United States Court of Appeals for the Seventh Circuit ruled that a part-time math instructor at Ivy Tech Community College in Indiana could sue her former employer under Title VII of the Civil Rights Act of 1964 for failing to promote, then terminating, her because she is a lesbian. Title VII protects an individual from discrimination in employment based on that individual’s “race, color, sex, or national origin,” but it does not specifically delineate that . . . Read More
Whistleblowers Win Again: Your Confidentiality Agreements May Not Keep Your Information Safe
Imagine how you might react if an employee who agreed to keep your information confidential made it public, submitted it to a court as evidence in a public forum, or disclosed it to a jury. Furious may not even begin to describe it. Perhaps you would even seek legal recourse against that employee. But then you peel back a layer and find that the employee is claiming whistleblower status and arguing they should be protected from any such legal violations . . . Read More
Is Mediation Right for Your Dispute?
By Ambi Biggs You’ve probably heard that few cases that are filed in court actually are resolved by a trial. Although reported statistics vary, most depict that upwards of 90 percent of litigation results in a pre-trial settlement. These settlements can occur within days of the lawsuit being filed, after the discovery process has concluded, or even right on the steps of the courthouse as the parties arrive for trial. Considering the prospects of actually litigating a case to the . . . Read More
Keep an Eye Out for Identity of Interest Affiliation
By Julia Di Vito Anyone who does business with a small business government contractor will always want to be aware of any potential bases for affiliation that might arise. However, the so-called “identity of interest” affiliation, as described in 13 C.F.R. § 121.103(f), is a particularly easy type of affiliation for a firm to have and not even realize it. It is important to be aware of the way identity of interest affiliation can be found and how to avoid . . . Read More
2016 Saw Rise in False Claims Act Actions and Recoveries
By Ambi Biggs The U.S. government and whistleblowers brought an increased number of False Claims Act (“FCA”) cases – as well recovered a larger amount in settlements and judgements – in the fiscal year 2016, as compared to 2015. In 2016, the U.S. Department of Justice recovered $4.7 billion in settlements and judgments, the third highest annual recovery ever for the department in the FCA’s history. Under the FCA, anyone who knowingly presents a false or fraudulent claim to the . . . Read More