No-rehire clause: The final insult maybe illegal

A not-uncommon provision which employers sometimes attempt to insert into agreements settling wage claims is the “no-rehire” clause.  With this clause, the employer attempts to get the employee to agree, that in exchange for payment, he or she will never re-apply for a job with employer; and that the employer has a right not to rehire him or her.  Without such a clause, refusal to rehire based on retaliation for a wage claim would be illegal. Continue reading

Black Swan (Glatt) en benc watch continues

Still no word on whether the full 13-judge Second Circuit Court of Appeals will review the decision by the 3-judge appellate panel issued on July 2, 2015.  In that decision, a Reagan appointee and two Bush appointees overturned a Department of Labor factors test used for several decades to determine whether an intern is an employee who must be paid.  The Court replaced it with a new test, which could seemingly be extended to almost all jobs.  That decision was written about in a prior post in this blog, Black Swan Unpaid Intern Court Decision Overruled by Appellate Panel, Which Announces New “Primary Beneficiary” Analysis. Several amicus briefs have been filed supporting the Plaintiff’s request for en benc review.  The Court does not have to grant en benc review but as cases go, this one appears ripe for it.  While the decision is important, intern lawsuits remain viable in many states, including California.

Black Swan Movie Interns Petition for En Banc Rehearing

On July 2, 2015, the pay for interns movement was dealt a significant set back when a 3 judge panel of the 2nd Circuit Court of Appeals overturned the six factor test of the U.S. Dept. of Labor, and essentially legalized unpaid internships in which students receive college credits.  The decision was rendered in the “Black Swan” movie intern case, i.e., Glatt, et al. v. Fox Searchlight, et al.

Luckily, Continue reading

Black Swan Unpaid Intern Court Decision Overruled by Appellate Panel, Which Announces New “Primary Beneficiary” Analysis

Black Swan Glatt v Fox Searchlight unpaid intern caseWhat do you get when a 3-judge appellate panel made up of one Reagan and two Bush appointees reviews an unpaid intern trial court ruling? Answer: Free labor.  That is just what happened yesterday (July 2, 2015) in the highly publicized “Black Swan case,” i.e., Glatt v. Fox Searchlight.  The result was predictable – not so much based on the law as on the composition of the appellate panel (one of whom has stirred controversy for his publicly stated distaste for non-profit attorneys).  The panel overturned the trial court decision, which had held that the interns were entitled to be paid minimum wage.  The case is referred to by some as the “Black Swan case” because the lead plaintiffs in the class action lawsuit worked on the Academy Award winning movie Black Swan.  Continue reading

Must Movie Extras and Models be Paid at least Minimum Wage?

Now that it is becoming clear that many or most unpaid internships for companies or businesses, it begs the question of who else must be paid at least minimum wage?  For example, the film / video industry uses “extras,” often unpaid.  The modeling industry also commonly pays people in amounts that equate to less than minimum wage.  “Glamor industries” such as film, modeling, journalism, and others for which there are far more people desiring entry than they are positions available are the ones most likely to use free labor.  This fact undermines industry claims that these unpaid positions are simply educational endeavors arising from altruistic motives.  Continue reading

Unpaid Internships: Minimum wage means the MINIMUM wage.

M2015 California Minimum Wage Postery firm participated in the filing of a high-profile class action lawsuit last week. Media attention was fast, and some of it typical of our human nature to reactively blame those who rock the boat.  Generally, the critics blame unpaid interns who sue as being ungrateful and as hypocritical for suing for something they entered into voluntarily. Continue reading