Month: November 2017

Just Hire an Intern? Understanding the Risks Associated with Unpaid Internships

Aurthor: Annie Smiddy

Hiring an unpaid intern is a risky endeavor. The law presumes anyone who “suffers or permits” someone to work has employed that person. Employees are protected by the wage and hour laws, and failing to abide by these laws can expose a business to substantial liability. California’s Department of Labor Standards and Enforcement (the agency that regulates wage and hour laws) adopted the federal approach to applying an exemption to the wage and hour laws for “interns.” The DLSE uses a six-factor test, and ALL factors must be met for a person to be considered a true intern under California law:

  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.

Comment: The DLSE commented that this element is satisfied when “an intern’s use of the employer’s computers, network systems, and tools to perform tasks” was “directly related to training and the educational and vocational objectives of the program.” Avoid assigning mundane or routine administrative tasks (such as running errands or making photocopies). Provide resources not necessarily available to the intern. Train, educate, supervise!

  1. The internship experience is for the benefit of the intern.

Comment: The internship should be “directly tied to the core components of the educations objectives” of the intern. Work with a university to provide school credit in exchange for the internship, and adhere to the university’s rules regarding school credit.

  1. The intern does not displace regular employees, but works under close supervision of existing staff.

Comment: Avoid clerical work, or work that is typically assigned to employees. Make sure that the intern is being closely supervised by employees, and not working on independent tasks.  However, some incidental work will not defeat the exemption “so long as such work does not unreasonably replace or impede the educational objectives for the intern and effectively displace regular workers.”

  1. 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;

Comment: Benefit to the intern is not sufficient to maintain the intern exemption; there must also be no immediate benefit to the company. Keep track of the time spent supervising and training the intern. Avoid assigning work that is necessary to the business that would typically be rendered by an employee. While “[t]he performance of the described tasks performed by interns at the placement sites has some benefit to the placement business,” the DLSE requires that “any such limited benefit is counter-balanced by impediments to the employer’s operations in both time and economic costs in teaching the intern the activities, reviewing any work performed as well as immediate economic costs to the business in participating in the program.”

  1. The intern is not necessarily entitled to a job at the conclusion of the internship; and

Comment: The internship cannot be an extended job interview. The exemption is not defeated by hiring the individual after the internship, but make sure to clearly state this in a written agreement between the parties prior to beginning the internship.

  1. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

Comment: Again, written agreements are crucial!

Since the test is a multi-factored, factual analysis, there is inherent uncertainty in the ultimate determination of whether an intern is actually an employee. Under wage and hour laws, if the intern is misclassified, the company could be liable for damages and penalties, including, but not limited to, unpaid wages, liquidated damages for failing to pay minimum wage, unpaid overtime, pay statement penalties, premium pay for missed meal and rest periods, and waiting time penalties. To minimize exposure, consult with an attorney to ensure that your internship program meets the DLSE’s requirements, work with a university to provide school credit, provide a written agreement, and keep records of the project goals, training procedures, time you spend supervising and training, and time the intern spends performing the internship. Offer meal and rest periods, and understand that additional rules apply if hiring a minor.

Use the following link to see the DLSE’s opinion letter regarding the test of whether an intern is actually an employee: https://www.dir.ca.gov/dlse/opinions/2010-04-07.pdf

The Computer Fraud and Abuse Act and Shutting Down @realDonaldTrump

By:  Michael S. Dorsi

The Washington Post published an article suggesting that the Twitter employee who deleted @realDonaldTrump might be criminally liable under the Computer Fraud and Abuse Act (“CFAA”).[fn1] The article, which draws on comments by Lawfare’s Benjamin Wittes and Chris Calabrese of the Center for Democracy and Technology, focuses on the misdemeanor access without authorization provision, 18 U.S.C. § 1030(a)(2)(C).[fn2] This provision attracts a lot of attention because it is very broad.[fn3]

The article focuses on whether the Twitter employee accessed without authorization, but then twists around to whether, while using that access, the employee did something he was not supposed to do. That is an invalid reading of the law, at least in the Ninth Circuit.[fn3] The access without authorization provision only criminalizes access, not what a person does once he or she has access. So the Twitter employee has nothing to fear, right? Wrong.

Just because the most notable part of the law is not implicated does not mean the law does not apply. A different provision, 18 U.S.C. § 1930(a)(5)(A), makes it a crime to “knowingly cause[] the transmission of a . . . command, and as a result of such conduct, intentionally cause[] damage without authorization, to a protected computer.” The story, as reported, indicates that the Twitter employee knowingly caused the transmission of a command that shut down @realDonaldTrump. The question is whether that shut down caused “damage” without authorization.

And a note of caution here: this offense does not require the defendant to access without authorization — it doesn’t require the defendant to access the system at all.[fn5] It just requires the defendant to lack authorization to cause damage.

What does it mean to cause damage? Unlike many words in the CFAA, damage actually has a definition in the law. “[T]he term ‘damage’ means any impairment to the integrity or availability of data, a program, a system, or information.”[fn6] Deleting a Twitter account probably impairs the availability of data, a program, a system, and information.

Does an 11-minute interruption qualify? One federal court in California held that changing someone else’s password and refusing to reveal it for two hours was insufficient under both the CFAA and its state-law analog.[fn7] Another case, in San Francisco, held that the CFAA and its state-law analog applied during “extended unavailability of the data.”[fn8] Maybe 11 minutes is not “extended unavailability,” but if I was the Twitter employee, I’d lawyer up.

And if I was his lawyer, I’d read the cases cited in this blog post. Free research. Because information wants to be free, or something like that.

P.S. The trial would probably have to be in San Francisco. Good luck asking Northern California jury to send someone to jail for shutting down Trump’s twitter.[fn9]

 

Footnotes

[fn1] 18 U.S.C. § 1030.

[fn2] Subsection (a)(2)(C), confers misdemeanor liability on any person who “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains . . . information from any protected computer.”

[fn3] See, e. g., United States v. Nosal, 676 F.3d 854, 862 (9th Cir. 2012) (Nosal I) (en banc), Michael S. Dorsi & Keenan W. Ng, Computer Criminal Intent, 51 U.S.F. L. Rev. 469, 503–506.

[fn4] Nosal I, supra, at 855.

[fn5] Cf. United States v. Nosal, 844 F.3d 1024, 1039 (9th Cir. 2016), cert. denied, No. 16-1344, 2017 WL 1807382 (U.S. Oct. 10, 2017) (Nosal II)

[fn6] 18 U.S.C. § 1030(e)(8)

[fn7] Welenco, Inc. v. Corbell, 126 F. Supp. 3d 1154, 1168 (E.D. Cal. 2015)

[fn8] NovelPoster v. Javitch Canfield Grp., 140 F. Supp. 3d 954, 961 (N.D. Cal. 2014). Your author argued the motion that resulted in this order in NovelPoster.

[fn9] See United States v. Auernheimer, 748 F.3d 525, 533 (3d Cir. 2014) (quoting United States v. Rodriguez–Moreno, 526 U.S. 275, 279 (1999)).

 

 

 

Hiring Seasonal Employees – Don’t End Up on the “Naughty” List

Author: Trina Clayton

For many retailers, the holiday shopping season is a “make or break” period that can define their bottom lines for the entire year.  Other businesses such as restaurants and hotels also see a huge uptick in traffic associated with holiday shopping and travel.  Temporary and part-time employment spikes as retailers and other businesses increase staffing to accommodate this seasonal increase in business.

As with hiring any employee, well-planned hiring practices that comply with applicable employment laws can help ensure seasonal employees are well-suited for the job and the company is prepared to defend any possible claims.   Below are a few actions employers can take to avoid common legal pitfalls when hiring seasonal workers.

  • Abide by All Wage and Hour Laws: With few exceptions, California law requires employers to pay any non-exempt employees one-and-one-half times their regular rate of pay for any hours worked in excess of 8 hours in any workday, or 40 hours in a given workweek.  An employee is further entitled to double their regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of 8 on the seventh consecutive day of work in a workweek.  These overtime laws apply equally to seasonal workers, as do state and local minimum wage laws.

 

  • Properly convey hiring duration: You may presume seasonal employees understand they have been hired on a temporary basis, but it is particularly important for employers to explicitly specify the limited duration of employment both at the onset and in writing. In addition, employers should require any seasonal employees to acknowledge, in writing, that they understand they are being hired for a limited duration and are “at-will” employees – meaning the employer has a legal right to terminate the employee, with or without cause, at any time.

 

  • Proper Classification: Employers often misclassify employees as independent contractors – this practice is especially common when hiring seasonal employees.  Employers should be sure to avoid designating a seasonal worker as an independent contractor without first determining that the circumstances legally justify such a classification.

 

  • Proper Training: Even though seasonal employees may only be with your company for a relatively short time, providing proper training is critical for maintaining a productive, fair, and safe workplace.  Employers commonly forget to give seasonal employees handbooks (and have them sign off on them) – if your business has “regular” employees sign arbitration agreements, you should do this for seasonal employees as well.  Seasonal employees should generally receive the same training as other new hires, such as training in anti-harassment, nondiscrimination, safety, and other important workplace issues.

 

LOCAL ORDINANCES

As an important reminder, both San Francisco and San Jose have enacted local ordinances designed to allow “regular” part-time employees the first opportunity to work additional shifts before an employer can hire temporary or seasonal workers.

  • Under San Jose’s “Opportunity to Work” ordinance passed earlier this year, San Jose businesses with 36 or more employees must offer, in writing, extra work hours to existing qualified part-time employees. If those employees aren’t qualified or decline the extra hours, an employer can then hire additional workers to fill the shifts.

 

  • Under San Francisco’s Retail Workers Bill of Rights, “formula retail establishments” with at least 40 retail sales establishments worldwide and 20 or more employees in San Francisco, must, before hiring new employees, offer additional work hours to qualified part-time employees who have performed similar work for the covered retail establishment, and afford those part-time employees 3 days to accept the offered hours.

Employment law, especially in California, is in a state of constant flux.  Employers must keep apprised of new legislation, and comply with all federal, state and local employment laws.  For specific legal advice regarding any employment issue, please contact Ad Astra for guidance.

 

Unexpected Litigation Costs

Author: Michael S. Dorsi

Many clients actively work with their attorneys to minimize their bills, and understandably so. Some choices are within the client’s control, such as making a motion for summary judgment. Others are not — like when the other side files a motion.

I have always understood the conventional wisdom to be that the moving party ends up with a larger bill for motion work – at least in California where the moving party writes two briefs, while the opposing party writes only one.[1] But a review of past matters suggests this may be incorrect.

Looking at federal court motions in the 2014-2016 timeframe, I found that opposing a motion often consumed more attorney hours — and resulted in higher bills — than making a similar motion. It was a small sample size, but the result is consistent with a different analysis: when you decide the strategy, you have more control over costs. But when the other side picks their spots, maybe lawyers end up spending more time adjusting to the other side’s focus.

Attorneys: does this match your experience?

Academics: there are a lot of attorney bills in the public domain because of fee applications — perhaps this would be a good subject for research . . .

 

 

[1] Some courts, such as the U.S. District Court for the District of Massachusetts, have only one brief by each side unless there is a reason to have additional briefing. See D. Mass. Local Rule 7.1(b)(2)–(3).

Update on 2017 Transgender Protection Regulations

Author: Trina Clayton

With the recent media frenzy surrounding President Trump’s attempt to ban transgender individuals from serving in the military, and Attorney General Jeff Sessions’ formal determination that federal civil rights law does not protect transgender workers from employment discrimination, we thought it a particularly fitting time to highlight some of the new 2017 rights and protections afforded to transgender individuals, here in California.

In May 2017, the California Department of Fair Employment and Housing (DFEH) approved new regulations regarding transgender identity and expression in the workplace.  A new definition for “transitioning” was added and the regulations now prohibit discrimination against an individual who is transitioning, has transitioned, or is perceived to be gender transitioning. The regulations became effective July 1, 2017.

Restroom Facilities

Under the new regulations, employers must provide equal access to comparable, safe and adequate facilities without regard to the sex of the employee.

All employees have the right to use a facility that corresponds to the employee’s gender identity or gender expression, regardless of the employee’s assigned sex at birth.  An employer may not REQUIRE an employee to use particular facility and they are not allowed to ask for “proof” from an employee to allow them to use a particular facility.

This regulation applies to more than just bathrooms.  It also applies to other facilities including locker rooms and showering areas.   In order to protect the rights of ALL employees, employers shall provide feasible options to maintain privacy – such options might include locking toilet stalls, staggered shower schedules, and shower curtains.

Dress Standard

The 2017 regulations make it unlawful to impose upon an applicant or employee any physical appearance, grooming or dress standard which is inconsistent with an individual’s gender identity or gender expression – unless the employer can establish a business necessity.  Please note, “business necessity” is a difficult hurdle to overcome and “customer preference” is not considered as such.  If an employer does have a dress standard, it must be enforced in a non-discriminatory manner.

Preferred Name and Identity

The new regulations require employers to honor an employee’s request to be identified by a preferred 1) gender and 2) name or pronoun – including gender-neutral pronouns.  An employer can be held liable for a FEHA violation if the employer fails to abide by an employee’s stated preference. Employers can only insist on using an employee’s legal name or gender if it is otherwise required to meet a legally-mandated obligation.

Documentation

An employer cannot inquire or require documentation on sex, gender, gender identity, or gender expression as a condition of employment.

Employers should ensure their policies comply with these new regulations regarding transgender identity and expression.  Employers should also review their employee handbooks to make sure any policies contained therein comply with the new regulations.  For specific legal advice regarding transgender regulations or any other employment issue, please contact Ad Astra for guidance.