Last month, the U.S. Department of Labor (DOL) Wage and Hour Division’s Payroll Audit Independent Determination (PAID) program went into effect. The pilot program allows employers to quickly pay back wages to workers in full for any accidental overtime or minimum wage violations of federal law under the Fair Labor Standards Act (FLSA). We previously wrote about what questions the PAID program left open (here), and, at least for now, the question of how this would affect New York state law has been closed shut.

Shortly after the federal PAID program went into effect, New York Attorney General Eric Schneiderman released a strong statement to employers in New York that his office would “continue to prosecute labor violations to the fullest extent of the law, regardless of whether employers choose to participate in the PAID program.” He reasoned that State investigations into wage and hour violations would continue because “the PAID program allows employers to avoid any consequences for committing wage theft.”

New York and Federal law not only require employers to pay employees any unpaid wages, but the laws establish additional liquidated damage penalties on top of any unpaid wages. Employers who enroll in the PAID program may avoid Federal FLSA liquidated damages, but AG Schneiderman’s statement ensures that this won’t be the case for New York state labor law violations and vowed to continue bringing lawsuits for wage and hour violations under New York state law. Guidance on the U.S. DOL’s Wage and Hour Division’s website doesn’t provide any help, either, stating that any releases signed by employees in exchange for payment would be “limited to the potential violations for which the employer had paid back wages.”  In other words, any release of claims under the Federal PAID program likely would not cover New York Labor Law claims, and the New York Attorney General Schneiderman has made it clear that his office would investigate “to the fullest extent of [state] law.”

New York employers are officially on notice. By opting in to the Federal PAID program, New York employers may inadvertently open the back door to a New York State wage/hour investigation. Before making the decision to self-report, any employer with employees in the state of New York is urged to seek legal advice.

During a Congressional hearing on March 6th, Labor Secretary Alexander Acosta unveiled a six-month pilot program intended to encourage employers to self-audit and self-report accidental violations of the Fair Labor Standards Act (“FLSA”). Under the program, called Payroll Audit Independent Determination (PAID), the Wage and Hour Division (WHD) of the U.S. Department of Labor will attempt to facilitate settlement agreements between employers who self-report and affected employees.  Employers who qualify for PAID and agree to pay back wages due will not be subject to liquidated damages or civil penalties and attorneys’ fees (all of which an employee could get if he or she files a lawsuit) under the FLSA.  Affected employees will have the right to choose whether to accept back payment in exchange for a release of claims.

There are several open questions about PAID that employers should keep in mind at this time. First, what effect, if any, will an employer’s participation in PAID have on potential claims under applicable state and local law, even if a settlement is reached?  Second, will employees apprised of potential violations by WHD be inclined to accept a settlement agreement that does not include liquidated damages or interest?  Third, is there anything preventing such employees from using the information gleaned from a self-reporting employer to file a lawsuit?  Fourth, will the information and data employers provide to the WHD be discoverable and deemed an admission in future lawsuits, especially by employees who choose not to participate?  Finally, it is not clear whether and to what extent WHD will examine a self-reporting employer’s records for violations in addition to what is self-reported, and whether employers should open themselves up to that scrutiny.

All of these open issues will likely limit the amount of employers who voluntarily self-report wage and hour violations during the six-month pilot period. After PAID’s six-month pilot period is complete, the Labor Department will evaluate the program’s effectiveness and determine whether to continue with the program in its current form, make necessary changes or end the program entirely.

Earlier this month, US employers received important news just as the season of hiring summer interns is set to begin. The Department of Labor (“DOL”), through Fact Sheet #71, clarified its position regarding unpaid internships and officially adopted the “primary beneficiary test” for determining whether interns are considered employees under the Fair Labor Standards Act[1] (“FLSA”).  The FLSA requires employers to pay employees for their work, but if an intern or student is not considered an employee, then the employer is not required to compensate them.

Specifically, the “primary beneficiary test” balances the following seven factors:

  1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
  2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
  3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

Unlike the prior DOL test which, through six enumerated factors questioned whether the employer received an “immediate advantage” from the intern’s work, this is a flexible test. No one factor is determinative and the test is dependent on the unique circumstances of each case, reflecting the economic realities of the individual intern-employer relationship.  In fact, the DOL noted that the change would hopefully provide investigators with “increased flexibility to holistically analyze internships on a case-by-case basis” and “eliminate unnecessary confusion.”

Now that the DOL has embraced the standard adopted by the 2nd, 6th, 11th, and most recently the 9th Circuit, employers finally have guidance on how to structure their internship programs so that interns are not deemed employees under the FLSA.  Along with balancing different factors when evaluating the intern-employer relationship under the FLSA, some states, such as New York, have additional wage laws which cannot be overlooked.

[1] The “primary beneficiary test” has been adopted in the 2nd, 6th, 9th and 11th Circuits through the following cases: Benjamin v. B & H Educ., Inc., — F.3d —, 2017 WL 6460087, at *4-5 (9th Cir. Dec. 19, 2017); Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528, 536-37 (2d Cir. 2016); Schumann v. Collier Anesthesia, P.A., 803 F.3d 1199, 1211-12 (11th Cir. 2015); see also Walling v. Portland Terminal Co., 330 U.S. 148, 152-53 (1947); Solis v. Laurelbrook Sanitarium & Sch., Inc., 642 F.3d 518, 529 (6th Cir. 2011).