The Rules of Engagement blog is the successor to Huddleston Bolen's Rules of Engagement, employment law newsletter. The blog contains articles and links posted after January 1, 2013. For articles written before January 1, 2013, please click here.

Tuesday, March 11, 2014

Pregnant Workers Fairness Act Passes West Virginia Senate and Awaits Governor's Signature

by Alex Greenberg

On March 6, 2014, the West Virginia Senate passed the Pregnant Workers Fairness Act (“PFWA”). Now that the bill has been passed by both the House and the Senate, it will move on to the desk of the Governor. If the Governor signs the bill, which is expected, then the PWFA will become law.

Once signed into law, the PWFA will ensure that current protections against employer discrimination will extend to pregnant workers. The PWFA allows employees to request modified duties and other accommodations from employers, so long as the accommodations do not place undue hardship on employers.

Consider a situation where a pregnant employee occasionally has some duties that require heavy lifting but the employee has been advised by her health care provider to not lift more than twenty pounds. Under the PFWA, an employer should temporarily reassign these heavy lifting duties to another employee, so long as this reassignment does not cause undue hardship to the employer’s business.


Once the PFWA becomes law, pregnant employees will be able to file complaints against employers through the West Virginia Human Rights Commission and the Commission may then investigate the pregnant workers’ claims. Employers should also be aware that the PFWA makes it improper to deny employment opportunities to job applicants out of concern that the applicant may ask the employer to make some adjustments due to a pregnancy.

Monday, March 3, 2014

NFL Cheerleaders Claim Teams Violate Minimum Wage Laws


Ben-Gals v. Bengals. Raiderettes v. Raiders. 

While the cheerleaders might not compete well against their NFL teams on the football field, in the courtroom the outcome could be much different.

Two lawsuits have been filed in 2014 alleging that cheerleaders for the Cincinnati Bengals and Oakland Raiders are compensated at an amount that is far less than minimum wage. The Plaintiffs in these lawsuits allege that cheerleaders are only paid for appearing at games, despite the fact that the cheerleaders spend countless other hours attending mandatory functions.

The Ben-Gals Plaintiff alleges that she spent over 300 hours last season performing at games, practicing with her squad, participating in photo shoots, and attending charity or promotional events. Although attendance at practice and other events was mandatory, the cheerleader alleges that she was only paid for game day performances at a rate of $90 per game. The Plaintiff had to miss one game last season to attend a funeral and she was not paid for that week, despite having attended the mandatory practices earlier in the week.

Under the Fair Labor Standards Act, time spent attending mandatory training programs (i.e., practices) or other work-related activities (i.e., promotional events or photo shoots) constitutes “working time” in which minimum wage and overtime requirement apply. In 2013, the minimum wage in Ohio was $7.85 an hour.

Here, although the total amount of time spent added up to be over 300 hours, Plaintiff alleges she was only paid $855 for the entire season, which is approximately $2.85/hour. This seems especially egregious considering a 2003 Forbes Magazine article estimated that an average NFL cheerleading squad generates approximately $1 million dollars a season for its respective team. Also, the cheerleaders claim that NFL mascots earn up to $65,000 year.

The Ben-Gals Plaintiff also alleges that the cheerleaders are led to believe that they will earn extra cash through paid appearances. However, Plaintiff claims she made many appearances last season and she was only paid on one occasion—at a “charity rate” of $75.00. The cheerleaders even have to provide their own transportation to such events, some of which are several hours away.

The amount of pay given to NFL cheerleaders is a concern for many teams, but not all. The Seattle Seahawks were the Super Bowl Champions for the 2013-2014 season and the organization’s website states that it compensates their cheerleaders, the Sea-Gals, at “an hourly wage and any applicable overtime required by law, for all hours worked.” Although having well-paid cheerleaders probably did not help the Seahawks win the Super Bowl, it did keep the organization out of the courtroom during the off-season.


Friday, February 14, 2014

West Virginia Passes Bill Requiring Reasonable Accommodations for Pregnant Workers


West Virginia is the latest state to join in a movement of strengthening the protections afforded to pregnant workers. On February 5, 2014, the West Virginia House of Delegates unanimously passed House Bill 4284, also known as the Pregnant Workers Fairness Act (“PWFA”). The purpose of the PWFA is to ensure that current protections against employer discrimination extend to pregnant workers, including the right to reasonable accommodations so that a soon-to-be mother can work through her pregnancy.

The PWFA will move on for a vote in the West Virginia Senate. A United States Census Bureau study found that more than 62% of women who had a child in 2012 were in the labor force. Thus, if the PWFA is signed into law, the requirements will affect many employers.

The PWFA makes it clear that employers must provide reasonable accommodations for workers’ limitations that arise from pregnancy, childbirth and related medical conditions unless the employer can prove that such accommodations would put an “undue hardship” on the operation of the business. Additionally, under the proposed law, an employer cannot deny employment opportunities to a job applicant or a current employee based on a refusal to make such accommodations.

Some female employees can work through a pregnancy with few, if any, changes in their job. However, other women may find that certain job functions pose a challenge during a pregnancy. This is especially true in physically demanding jobs or jobs that are traditionally held by men. Often times, these women could continue to work if employers allowed for simple accommodations or slight job modifications. Consider a pregnant cashier at a grocery store who is having trouble standing up all day—perhaps all the employer needs to do is provide a stool and allow the employee to sit instead of stand.

Supporters of the PWFA point out that many pregnant women cannot financially afford to stop working and when they are denied reasonable accommodations, they have no choice but to continue under unhealthy conditions or against their health care provider’s advice. Advocates believe women are putting their own at health at risk, along with the health of their baby. The goal of the PWFA is to ensure that pregnant women can continue to work in a manner that is safe for their pregnancy.


Monday, December 2, 2013

Wednesday, November 20, 2013

Unpaid Internships: A Violation of Minimum Wage Requirements?

“Who is that kid?” That is the first question asked upon seeing a twenty-something, college student who is showing up for the first day of his or her summer internship. Now, according to the U.S. Department of Labor, there needs to be a second question—“should we be paying that kid?”

For decades, unpaid internships have been common in the American workforce. Intern Bridge, a firm that conducts research on internships, estimates that undergraduate students work in more than one million internships a year—half of which are unpaid. Undoubtedly, an internship can provide a valuable, hands-on learning experience to a young professional.

Supporters of unpaid internships argue that if employers are forced to pay an intern, then the employer will simply hire a normal employee and it will become more difficult for students to find internships. Critics argue that unpaid internships exploit college students and cause normal employees to lose jobs because the students are willing to work for free. Also, critics point out that unpaid internships unfairly benefit students from wealthy families because many students could not afford to take an unpaid position. Supporters counter that unpaid internships are a voluntary exchange—if a student wants to work for free and a company wants to give the student an opportunity, why should laws interfere?

Regardless of which side of the debate you may personally fall, companies need to ensure they are in compliance. Until recently, courts had not been confronted with the question of whether unpaid internships violate federal and state minimum wage laws. Now, however, the issue has become an increasingly popular source of litigation.

In June of 2013, a Federal District Court in New York ruled that Fox Searchlight should have been paying interns that worked on the production set of “Black Swan,” a movie that was released in 2010. Although Fox is appealing the ruling, the case provides some helpful guidance for companies that offer unpaid internships.

An intern can either be a “trainee” or an “employee.” Interns in the for-profit, private sector who qualify as employees (not trainees) must be paid at least the minimum wage and overtime for hours worked over forty in a workweek. It is important to note that these requirements only apply to the private sector; unpaid internships in the public sector and non-profit charitable organizations are permissible.

A Department of Labor fact sheet helps for-profit businesses determine whether its interns need to be paid.It gives six general criteria to examine:
1.      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;
2.      The internship experience is for the benefit of the intern;
3.      The intern does not displace regular employees, but 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 at the internship.

Relating to the first factor, the interns in the Fox case learned how the coffee maker and photocopier operated on this particular movie set, along with how the company watermarked its movie scripts. An educational environment teaches skills that a person can use for many different employers in an industry. The court reasoned that the new skills the interns learned at Fox were the same skills that Fox’s normal employees learned through on-the-job training. Stated more simply, the internship was not designed to be more educational than a paid position.

Next, the court looked at who really benefited from the internship. The interns could put the internship on their job resumes and acquire some job references in the process—not to mention the experience itself. Surely this is a benefit, right? The court said such incidental benefits were available from any working relationship and “not the result of internships intentionally structured to benefit the interns.”

Also, the court rationalized that Fox was the true entity that benefited from the unpaid work. The interns were organizing filing cabinets, taking out trash and running errands for free. Normally, a paid employee would have done these tedious, yet essential activities. Thus, Fox was benefiting from the intern by having an unpaid worker do work that normally a paid employee would perform (see factors two, three and four listed above).

There was no evidence that the interns were entitled to positions at Fox at the end of the internship. Also, the interns understood that they would not be paid for the internship. These factors support a finding that the interns did not need to be paid. However, the court found that the “totality of the circumstances” showed that the interns should have been paid.

According to the court in Fox, to qualify as an unpaid internship, the internship should be “designed to be uniquely educational to the interns and of little utility to the employer.” The internship program should resemble an academic setting or vocational school. Many employers justify unpaid internships by offering academic credits. However, the Fox court said that academic credits do not automatically entitle an employer to circumvent minimum wage laws.

Employers may have to actually impede their own productivity to offer opportunities to an intern that would not be available to a regular employee. This situation could arise when an unpaid intern has the opportunity to “job shadow” a regular employee but does not actually perform any work. Notice how such a situation would benefit the intern but not the employer (see factor four above).

In December 2012, Charlie Rose’s PBS talk show settled a class-action suit filed on behalf of unpaid interns for approximately $110,000. In the summer of 2013 alone, unpaid interns have brought suits against P. Diddy, MTV, Fox Soccer Channel, Warner Music Group, Condé Nast, Nickelodeon, MSNBC, Saturday Night Live, Gawker, and the Pittsburgh Power arena football team, among other employers. These cases are just getting started. The rulings that will come from these courts in the upcoming months will give employers some more guidance.

Notably, the cases so far have been mostly centered in New York and Los Angeles as unpaid interns have been attacking companies in the entertainment industry. However, it is a matter of time before similar issues are brought against other private businesses. Other unpaid internship cases, both of which are still in the beginning stages of litigation, have already been brought against a law firm and a marketing/public relations firm. Even the White House, which legally has unpaid interns because it is in the public sector, has recently felt pressure from critics of unpaid internships.

Despite the prevalence of unpaid internships, there are now liability risks associated with such programs. Inevitably, and perhaps unfortunately, the threat of litigation will cause employers to take a hard look at their internship programs. Businesses should consider having an employment lawyer review their particular internship program to determine if it falls within the appropriate guidelines.




Monday, November 18, 2013

Upcoming Webinar: "You Like Me! You Really Like Me!"

On November 19th, Kevin Nelson, will host an informative webinar providing updates on employment law and social media. It will cover the latest in trends and cases, and the NLRB's position regarding social media use and governance.

Space is limited. Reserve your Webinar seat now at: https://www2.gotomeeting.com/register/959414610

Friday, November 15, 2013

We Make the Rules

The following is cross-posted from the personal blog of Kevin Nelson, partner at Huddleston Bolen LLP.

An open letter from the Miami Dolphins:


Jonathan Martin didn't get it. And neither do you. It's not that we're above the law. It's that we make the law, we are the law. An entirely different ethos applies here -- we decide what's wrong and what's right, even what's black and what's white.
(More...)