Special from the Advanced Employment Issues Symposium, Las Vegas
In yesterday’s Advisor, panelists at the Advanced Employment Issues Symposium in Las Vegas covered sweeping developments at DOL and EEOC Today, the compensation-related issues, plus an introduction to the unique “50×50” (50 Employment Laws in 50 States).
Panelists included Susan Webman, Of Counsel with FortneyScott in Washington, DC., John Husband, senior partner with Holland & Hart in the firm’s Denver, Colorado office, Linda Walton, attorney with Perkins Coie LLP in Seattle, and panel moderator Charles Plumb, partner with McAfee & Taft in the firm’s Tulsa, Oklahoma office.
Hot Topic: Fallout of Christopher v. SmithKline Beecham Corp.
The issue in the case was whether the pharmaceutical sales reps (PSRs) could be exempt as outside sales reps because they don’t actually make the sale of the drugs. They get physicians to agree to prescribe the drug, but the actual sale is made at the drug store by the pharmacist.
The Supreme Court found that the PSRs were outside sales reps under the Fair labor Standards Act, and thus not entitled to overtime.
Interestingly, the Court did not give deference to DOL’s interpretation of its regs, which may prove helpful to employers in future cases.
MOUs and Independent Contractor Misclassification—Still Hot
More states are entering Memoranda of Understanding (MOU) with the federal government. This means more agencies are exchanging information, and in turn, that means ramped up enforceability by state agencies, DOL, and IRS. (State taxation agencies and the federal IRS are particularly interested because they can collect more taxes when independent contractors are reclassified as employees.)
Finally, an easy-to-use state law guide for all 50 states plus DC and Canada! 50×50 (50 Employment Laws in 50 States) guide is the authoritative guide to 50 of the most crucial employment laws. Easy-to-read chart format. No legalese. Updated for 2012. Take a free trial and get a FREE Special Report. Download Free Report.
Hot Topic: Unpaid Internships
Many employers think it’s OK to have unpaid interns, while in most cases it is not OK, says panelist attorney Susan Webman, Interns may be unpaid only in limited circumstances. The government has a six-point test:
- 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.
- The internship experience is for the benefit of the intern.
- The intern does not displace regular employees, but works under close supervision of existing staff.
- 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.
- The intern is not necessarily entitled to a job at the conclusion of the internship.
- The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
If all of the factors listed above are met, an employment relationship does not exist under the FLSA, and the Act’s minimum wage and overtime provisions do not apply to the intern.
Unpaid interns, independent contractors—just a couple of, what, a dozen wage/hour challenges on your desk?
Unfortunately, the scope of many of these challenges is doubled when state laws apply along with the federal. How do you find out about the various state laws that affect your operations, especially if you operate in more than one state? It’s not easy to track the ins and outs of different laws in 50 different states—and that’s where the unique 50×50 comes in.
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Operate in multiple states? That’s a real compliance challenge, but with 50×50 (50 Employment Laws in 50 States); answers are at your fingertips. Wage/hour? Leave? Child labor? Discrimination? All there in easy-to-read chart form. Find out how you can also get a Free Special Report.
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