Archive for April, 2013

Massachusetts Employers Must Provide Meal Breaks

April 17, 2013 Leave a comment

The common practice of working through lunch can result in a violation of the Massachusetts meal break law. Employers are required by law to allow any employee who works more than six hours a day an unpaid and unfettered meal break of at least thirty minutes. This law applies to exempt and non-exempt employees alike. It does not, however, apply to employees who work in certain industries, including the iron, glass, print, bleach, dye, paper and letterpress industries.

To qualify as a meal break, an employee must be unrestricted for a full thirty minutes. The employee must have the freedom to leave the workplace if he or she so desires and the employee must be entirely relieved from performing job duties during the break. Otherwise, the employer must compensate the employee for his or her time.

Employees can choose to waive this break, and to work through the allotted time-off, but the decision to do so must be voluntary. If an employee works through a break, either with or without the employer’s permission, then the break time becomes compensable. As a result, the employer will owe wages for all time worked by the employee, including the time originally set aside as a break, as well as any resulting overtime. To avoid liability, employers should establish, clearly communicate, and uniformly enforce a meal break policy.

For more information on this topic, please contact a member of the Employment Law Group.

Internships Raise Wage and Hour Risks for Employers

April 16, 2013 Leave a comment

Student internships are increasingly popular. While internships generally benefit employers and interns alike, there is uncertainty regarding whether internships may be paid or unpaid. The answer to this question depends on whether the internship falls under the “learner/trainee” exemption to the payment of minimum wages and overtime rules under the federal Fair Labor Standards Act (“FLSA”). If the internship falls under the exemption, then it may be unpaid. If it does not, the employer must pay the intern in accordance with federal and state minimum wage laws. A failure to do so could result in significant liability to the employer.

The U.S. Department of Labor (the “DOL”) has set forth a set of six factors to use in determining whether an unpaid internship at a private-sector, for-profit business comes within the “learner/trainee” exemption, and thus whether the intern must be paid. The internship must meet each of the six factors in order to come within the exemption. The DOL has stated that the most important factor is whether the internship is primarily for the intern’s benefit rather than for the employer’s benefit. Under the DOL’s analysis, an internship is much more likely to be considered exempt if the intern does things that increase his or her skill set, as opposed to clerical tasks. Note that this test applies to for-profit businesses only; non-profits may generally maintain unpaid internships.

The DOL’s six factors are:

  1. The training is similar to what would be provided in a vocational school or educational institution.
  2. The training is for the benefit of the intern.
  3. The intern does not displace any regular employees, but works under their close observation.
  4. The employer derives no immediate advantage from the intern (and on occasion its operations may actually be impeded).
  5. The intern is not necessarily entitled to a job at the conclusion of the internship.
  6. Both the employer and the intern understand that the internship is unpaid.

Interns who do not meet this test are not permitted to work without pay—no matter how much of an intangible benefit the intern might receive.  Employers whose internships do meet the DOL test should consider creating a document evidencing that the internship meets the DOL’s criteria.

For more information on this topic, please contact a member of the Employment Practice Group.

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