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Court Adopts New Test for Determining Interns’ Status
Glatt v. Fox Searchlight Pictures Inc., 2nd Cir., No. 13-4478-cv
The 2nd U.S. Circuit Court of Appeals rejected the Department of Labor’s (DOL’s) six-part test for determining whether an intern working in the for-profit private sector is actually an employee and is therefore entitled to the minimum wage and overtime pay under the Fair Labor Standards Act. The appellate court instead adopted a more flexible analysis that included the following “nonexhaustive” set of considerations:
When hiring interns, clarify upfront and in writing the elements of the arrangement, including each intern’s duties and opportunities for hands-on training that will be provided by the employer.
The 2nd Circuit emphasized that “[no] one factor is dispositive and every factor need not point in the same direction for the court to conclude that the intern is not an employee entitled to the minimum wage.”
By Lawrence Peikes and Christine Salmon Wachter, attorneys with Wiggin and Dana in Stamford, Conn.
Rude Acts, and Failure to Investigate, Not Actionable
Baird v. Gotbaum, D.C. Cir., No. 12-5334
Holding that “a long list of trivial incidents is no more a hostile work environment than a pile of feathers is a crushing weight,” the D.C. Circuit Court of Appeals ended six years of litigation between an attorney at the Pension Benefit Guaranty Corp. (PBGC) and her employer.
Rhonda Baird claimed that the PBGC’s HR department ignored her repeated complaints about her co-worker’s retaliatory harassment as a result of her protected activities under Title VII of the Civil Rights Act of 1964. The court found that since occasional name-calling, rude e-mails, lost tempers and workplace disagreements were insufficient to create a hostile work environment, the PBGC’s failure to remediate was not actionable.
When dealing with chronic complainers or limited HR resources, seek counsel about whether it might be permissible to refrain from investigating certain issues.
It also held that alleged acts that make up a hostile work environment claim must be “adequately linked.” Here, the intermittent “slights” identified by Baird—which occurred over eight years—had little to do with each other. One common thread Baird identified was the repeated failure of the HR department to investigate or remediate her internal complaints. This theory did not fly, however, because a retaliatory failure-to-remediate claim is not actionable unless the underlying incident would itself be actionable.
Baird also contended that PBGC’s conduct was actionable because it took a serious toll on her health. She further argued that the company’s failure to investigate her complaints violated the agency’s own workplace rules. Finding that HR’s inaction was not unlawful, the court reaffirmed that “Title VII is aimed at preventing discrimination, not auditing the responsiveness of human resources departments.”
By Joleen Okun, an attorney in the Washington, D.C., office of Ogletree Deakins, an international labor and employment law firm representing management.
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