Category Archives: U.S. Department of Labor

Should You be Paid for Your Unpaid Internship?

Posted on August 22, 2016 by Jon Rehm

Colleges and universities are starting the school year already. Increasingly, internships are part of many students’ educations. Interns are also an important part of the labor force in college towns like Lincoln, Nebraska. But the use of interns raises legal and policy questions, because many internships are unpaid. The U.S. Department of Labor’s Wage and Hour Division provided a clear explanation of when they think interns should be paid. If the internship meets the following qualifications, then interns are not required to be paid. If the internship does not meet these criteria, then interns are required be paid the federal minimum wage and overtime as required by the Fair Labor Standards Act (FLSA).

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

In short, the more the internship is structured around an actual educational or classroom experience, the less likely interns will be covered by the FLSA. The more it appears that employers are using unpaid interns as substitutes for paid workers, the more likely it is that internship will be covered by the FLSA.

Unpaid internships have often been criticized for exacerbating inequality, because unpaid internships are required in many fields, and only relatively affluent students can afford to work to work for free. Some economists also believe that the rise of unpaid internships has been made possible by lack of enforcement of wage and hour laws.

So if you are working an unlawful unpaid internship, then you can file a suit under the FLSA. However, this limits you to wages paid at the federal minimum wage rate of $7.25 per hour. Many states also have state wage and hour laws that differ from federal law. One advantage of filing under the Nebraska Wage and Hour Act is that the Nebraska Wage and Hour Act has criminal penalties for employers who violate the act. Criminal penalties often give employers an incentive to settle cases to avoid the criminal penalty. Nebraska also raised its minimum wage to $9 per hour. An unanswered question is whether Nebraska courts would let unpaid interns sue under Nebraska law for the higher minimum-wage rate.

The Nebraska Wage and Hour Act provides some exemptions for religious, nonprofit, educational, and charitable organizations, as well as for volunteers of those organizations. I would anticipate that exemption could very well be made to be a legal defense in wage and hour actions involving interns in Nebraska. The issue of pay within the nonprofit sector has become a hot topic among some voices in the nonprofit sector. I agree with voices within the nonprofit sector that expansion of the overtime exemption and the increase of the minimum wage in some states is good for the nonprofit sector, because it helps the people who nonprofits serve.

Nebraska’s minimum wage hike has also raised some questions about youth and training wages that will be addressed in another post.

I Can’t Do My Old Job, So I Qualify for Disability, Right?

Posted on July 7, 2016 by Roger Moore

It’s not uncommon for workers to expect to qualify for disability when they are unable to work in a job that they have held for years. The question becomes does that mean they are disabled under Social Security Administration rules? As in most cases in dealing with the law, the answer is maybe!

For workers under the age of 50, applicants must prove that they are also unable to obtain any work in the general economy, even if they can’t do their typical jobs. This includes unskilled work, and the SSA makes no distinction for what type of pay cut a worker must accept to remain gainfully employed. For instance, let’s assume a worker was earning $20 an hour as an electrician, but could no longer handle the rigors of that employment. If that person can do a minimum-wage job full time or at the level of substantial gainful employment as set by the SSA, then a person is not considered disabled under the SSA rules. Many people are surprised that the SSA would require this. Even if jobs don’t exist within the current labor market, the SSA would require a worker to move herself to a larger market to continue to be employed.

For individuals over the age of 50, the primary question is did they acquire skills from prior employment that would enable them to transition into other employment areas. If those skills would allow the worker to transition to alternate employment, then they are not considered disabled. If those skills are too specialized and don’t easily transition to alternate employment, the worker may very may well be disabled, according to SSA rules.

Workplace Flexibility: Good For You and Your Employees

Posted on November 16, 2015 by Rod Rehm

Today’s post was shared by the U.S. Labor Department and comes from www.huffingtonpost.com

Even though National Work and Families Month was in October, I think this topic is a good discussion to encourage employers and business owners to consider anytime during the year. As we have discussed in the past, not everyone has the luxury of benefits at their jobs. But benefits can be an extremely important part of the overall compensation package, including paid sick leave and workplace flexibility. As is evidenced below, employers can also reap great benefits from providing such flexibility, especially when it comes to increased worker loyalty and productivity. That includes offering schedules that are concrete for workers so they don’t have to “choose between … job or … family.” In addition, there are definitely benefits of goodwill and there might even be cost savings when a person, regardless of job, stays home when sick, instead of passing the illness around the workplace and other workers taking that illness home to loved ones. Another example is for anyone who drives for work. A sickness on the road and working while sick could very quickly become an employer’s safety issue that could endanger both the employee and the general public, if being forced to work led to an accident.

A March 2014 article by Bryce Covert discusses the reality of what paid sick leave (and I would argue workplace flexibility) did in one state, in addition to humanizing service-sector workers and spreading caregiver tasks out over more family members. Researchers Eileen Appelbaum and Ruth Milkman from the Center for Economic and Policy Research surveyed Connecticut employers and “they found that ‘everything they were worried about, that workers would take all the time available, employees would abuse it, did not happen,’ she said.”

“Only 11 percent of Connecticut’s businesses had costs increase by 3 percent or more, their study found, while about two-thirds said there was either no cost or a small one. The vast majority said there were no cases of abuse. In fact, while the law provides workers with five paid sick days a year, on average they use just four. Half of them used three days or fewer, and a third didn’t take any at all. ‘It’s not that you give workers a paid sick day and they run out and use every single one,’ Appelbaum noted. ‘From the point of view of employees, these paid sick days are a form of insurance,’ and workers hold on to them in case they need them in the future.”

Because as you should read below, regardless of the size or type of business, in the long run, workplace flexibility can be very good for business.

Small business owners know that things don’t always go as planned, and the same is true for their employees. Even the family responsibilities that we can plan for sometimes require a balancing act: nearly two-thirds of American women with a 1-year-old child are in the labor force, and approximately 16.8 million adults over 55 years of age provide unpaid care for elderly loved ones. That’s why workplace flexibility policies that allow employees to balance the demands of work and home are vitally important − especially paid sick days, paid parental leave and flexible scheduling.

These policies also give employers a competitive advantage in attracting and retaining top talent, increase employee creativity, increase productivity, increase profitability, and boost employee morale.

Many large companies have made headlines when offering workplace flexibility policies (Netflix, Google and Microsoft to name a few), but flexible workplace policies are good for small businesses, too.

During National Work and Families Month, the U.S. Small Business Administration (SBA) and the Labor Department are supporting businesses’ efforts to make the country’s workplaces more fair and family-friendly by creating a Workplace Flexibility Toolkit. It’s full of helpful tips and ideas to help small businesses implement smart workplace flexibility policies.

Small businesses all over the country already are reaping the benefits of such policies:

“Years ago my husband, John, and I decided to offer…

[Click here to see the rest of this post]

Worker Safety Should Be Profitable

Posted on September 10, 2015 by Brody Ockander

A safer workplace can result in cost savings like not being fined by OSHA.

Can a focus on worker safety be more profitable to a company in the long run? I believe it can.

A safer workplace can result in cost savings like not being fined by OSHA or have to take the time and energy for employees to defend a business against an OSHA investigation. In addition, it makes economic sense to have healthy employees who aren’t injured, resulting in fewer workers’ compensation claims. Workers will also feel more confident in going to work where an employer has a focus on safety instead of having an employer that doesn’t have proper machine guards in place or uses some of the tactics found in this investigation.

OSHA recently reported a news release about a Norfolk, Nebraska, company named MP Global Products, LLP, which allegedly has problems providing a safe workplace.

A tragic workplace incident in March prompted the OSHA investigation when a temporary employee endured his fingers being amputated while working. The investigation itself led to additional safety issues, resulting in “two willful, 22 serious and one other-than-serious safety violations carrying proposed penalties of $244,000,” according to the news release. The company also ended up in the agency’s Severe Violator Enforcement Program as a result of the inspection.

“A Norfolk flooring materials company tried to hide hazardous machines from federal inspectors and threatened to fire employees who complained about unsafe working conditions during an investigation into why a 65-year-old temporary worker suffered the amputation of one finger and severe damage to another when his left hand was caught as he operated a machine.

U.S. Department of Labor Occupational Safety and Health Administration inspectors found the man’s employer, MP Global Products LLC, attempted to conceal an entire production line from them. Inspectors found numerous machines lacked safety guards that exposed workers to amputation injuries on that line and throughout the facility. Workers also told investigators the company threatened to fire those who told inspectors about their safety concerns.”

Here’s another version of the same incident. This time the article was reported on an insurance-industry website.

“MP Global shut down an entire production line, turned the lights off and herded employees into the back room where they were instructed to remain quiet during OSHA’s inspection. This was a willful attempt to prevent inspectors from discovering numerous machine safety violations in the plant,” said Jeff Funke, OSHA’s area director in Omaha. “Knowingly requiring workers to operate unsafe machinery and threatening their jobs for reporting unsafe work practices are illegal and shameful activities. MP Global needs to immediately correct the multiple machine hazards in its facility.”

In this case, a worker’s injury was the catalyst for the OSHA investigation and inspection. Manufacturers may not follow safety protocols to maximize profits, but that profit is often at the worker’s expense, resulting in safety problems and even worker injuries. It is frustrating and just plain wrong when profits are being valued above worker safety, in addition to this example where employers threatened workers’ jobs for wanting a safe environment and reporting concerns.

I hope that this business now understands the importance of a safe workplace that benefits both employees and profits.

“To ask questions, obtain compliance assistance, file a complaint, or report amputations, eye loss, workplace hospitalizations, fatalities or situations posing imminent danger to workers, the public should call OSHA’s toll-free hotline at 800-321-OSHA (6742) or the agency’s Omaha Area Office at 402-553-0171,” according to the OSHA news release.

Safety Fines Used to Track States’ Workplace Incidents

Posted on August 27, 2015 by Rod Rehm

The U.S. Department of Labor Blog recently released a resource that encourages the continued discussion of workers’ compensation and safety in the workplace.

This blog post from the Labor Department features a safety-fine map that tracks “the number of workplace health and safety investigations that have led to high fines.” The tracking starts with January of 2015, and the cases are supposed to be updated weekly. All the states, whether administered through OSHA or an OSHA-approved state plan, are included.

I wish they would provide more context as to how $40,000 was considered the “high penalty” starting point, but they have to start somewhere, and it is an easy-to-understand measure of how a state stacks up within this category. You can also get more information on each specific situation by clicking on the inspection number provided.

As of August 2015, Nebraska had two incidents: Affordable Exteriors of Elkhorn (in March) fined $75,240 and MP Global Products of Norfolk (in January) fined $54,000. Iowa had four incidents: Behr of Mason City (in January) fined $57,150; U.S. Postal Service in Des Moines (in March) fined $49,500; United Sugars in Mason City (in April) fined $68,600; and Sunrise Farms in Harris (in May) fined $227,500.

States that surround Iowa and Nebraska had the following numbers so far: Missouri: 13; Kansas: 7; Colorado: 4; Wyoming, 5; South Dakota, 1; Minnesota, 2; Wisconsin, 14; and Illinois: 38.

Since the information is a statistical snapshot at a moment of time, it may seem arbitrary, but it also shows a continued problem with workplace safety. And these were only the businesses in a handful of states that got caught and were imposed fines greater than $40,000. Just think about the challenges that may exist for workers at businesses that don’t get inspected or aren’t on OSHA’s radar until a worker is injured or killed doing their job.

As we come up to Labor Day, members of the firm will continue to advocate for workers and promote discussion of worker safety, OSHA inspections, and holding businesses accountable for injured workers. Have a safe and productive week

Workers' Compensation Watch

Published by Rehm, Bennett, Moore & Rehm

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Category Archives: U.S. Department of Labor

Should You be Paid for Your Unpaid Internship?

I Can’t Do My Old Job, So I Qualify for Disability, Right?

Workplace Flexibility: Good For You and Your Employees

Worker Safety Should Be Profitable

Safety Fines Used to Track States’ Workplace Incidents

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