Worthy exemption
-
Upload
st-edwards-university -
Category
Education
-
view
142 -
download
0
description
Transcript of Worthy exemption
Worthy Exemption?Examining How the DOL Should Apply the FSLA to Unpaid Interns and Public Agencies
Author: Anthony Tucci Presented by Sally Perez-Ramos
The Backstory
1938 - Creation of the Fair Labor Standards Act 1947 - Walling v. Portland Terminal Co.
Prior to 1943, trainees were not compensated for their time spent with the employer
Because it was seen the trainee may impede or interfere with the productivity of yard crew and did not aid in the business production, trainees were seen as a nuisance
When the individual’s training was completed and they were held competent for employment, their application was submitted and they were called in when work was available
According to the DOL – trainee is not an employee and thus court held no provision requiring employers to provide pay
This lead to the creation of the Six Part Test for Trainees and Unpaid Interns at For-Profit Organizations .
Six Prong Test to FSLA
The training, even though it includes actual operation of the facilities of the employer, I similar to that which would be given in a vocational school;
The training is for the benefit of the applicants;
The trainees do not displace regular employees, but work under close supervision;
The employer that provides the training derives no immediate advantage from the activities of the trainees, and on occasion his operations may be actually impeded;
The trainees are not necessarily entitled to a job at the conclusion of the training period; and
The employer and trainees understand that the trainees are not entitled to wages for the time spent in training
1
2
3
4
5
6
Tony & Susan Alamo Foundation v Secretary of Labor
FLSA & Unpaid Interns at Nonprofits Though the FLSA does provide detailed exemptions to nonprofit
organization, there are some rules to hosting unpaid interns:
Enterprise and the use of ordinary
commercial activities
Determining whether the
intern is engaged in commercial
activities
Finding out if the intern is
economically dependent on the
organization
Public Agencies: The Exception to the Rule
1995 - Congressional Accountability Act Legislation created requiring a variety of civil rights,
labor, and work place and health laws to be applied to Congress and its associated agencies just as applied to business and the federal government
Exemption: Congressional Interns
Benefits of Unpaid Internships for Nonprofits and Public Agencies
Help decide on career path Create a professional network Provides real-world work experience Social mobility for low income
students
The Sours
Hurts the economy by: Displacing employees Menial tasks Depress future and starting earnings
Affects the psyche, discourages against exercising employment rights Getting paid is seen as a privilege
Damages low income/minority students’ social mobility Exclude minorities and low income students opportunity to apply
Author’s Solution for Nonprofits “The DOL should apply the Portland Terminal test to
nonprofits and public agencies, with additional criteria: A student qualifies as a bona fide unpaid intern when he or she completes work that is typically associated with public-service volunteerism, the task compromise only a minority of the internship in a given work week, and this work is motivated by civic or humanitarian purposes” (Tucci, 2011, p. 1384)
If modified, nonprofits could receive immediate advantage rather than no advantage thus the FLSA could cover the intern
Modification will ensure student receives benefits and would compel nonprofits to be treated as for-profits
Author states this will reduce unpaid internships and help the economy
Author’s Solution for Public Agencies
Modify the 6 part Portland Terminal test Note: There is a section in the FLSA which allows public
agency interns to displace regular employees and receive immediate advantage
Tucci suggests adopting a test which will encompass the idea “primary beneficiary is the intern”
In addition to the modified exemption test, a test of employee status for public sector interns should satisfy prongs 1, 2, 5, and 6 and thus ridding unpaid internships
My Thoughts
References
Tucci, A. J. (2011). Worthy Exemption? Examining How the DOL Should Apply the FLSA to Unpaid Interns at Nonprofits and Public Agencies. Iowa Law Review, 97(1363), 49. Retrieved from http://ssrn.com/abstract=1839831