Federal Employment Law Update – January 2018

WHD Revises Test for Unpaid Internships

On January 5, 2018, the U.S. Department of Labor’s Wage and Hour Division (WHD) released a Field Assistance Bulletin (FAB No. 2018-2) establishing that the primary beneficiary test, rather than the six-point test, will determine whether interns at for-profit employers are employees under the federal Fair Labor Standards Act (FLSA).

The primary beneficiary test requires an examination of the economic reality of the intern-employer relationship to determine which party is the primary beneficiary of the relationship. The following seven factors are part of this test:

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 after the internship.

According to the WHD, under the primary beneficiary test, no one factor is dispositive and every factor is not required to be fulfilled to conclude that the intern is not an employee entitled to the minimum wage. The primary beneficiary test is a distinct shift in analysis because per the six-part test every intern and trainee would be an employee under the FLSA unless his or her job satisfied each of six independent criteria. Courts have held that the primary beneficiary test is an inherently “flexible” test and whether an intern or trainee is an employee under the FLSA necessarily depends on the unique circumstances of each case.

The WHD announced it will conform to the federal court of appeals’ determinations and use the same court-adopted test to determine whether interns or students are employees under the FLSA.

Read the field bulletin

Increased Penalties for Federal Violations

On January 2, 2018, the U.S. Department of Labor (DOL) announced in the Federal Register that penalties for violations of the following federal laws have increased for 2018:

• Black Lung Benefits Act.
• Contract Work Hours and Safety Standards Act.
• Employee Polygraph Protection Act.
• Employee Retirement Income Security Act.
• Fair Labor Standards Act (child labor and home worker).
• Family and Medical Leave Act.
• Immigration and Nationality Act.
• Longshore and Harbor Workers’ Compensation Act.
• Migrant and Seasonal Agricultural Worker Protection Act.
• Occupational Safety and Health Act.
• Walsh-Healey Public Contracts Act.

These increases are due to the requirements of the Inflation Adjustment Act, which requires the DOL to annually adjust its civil money penalty levels for inflation by no later than January 15.

These increased rates are effective January 2, 2018.

Read the Federal Register

OSHA Penalties Increased

On January 2, 2018, the U.S. Department of Labor announced in the Federal Register that Occupational Safety and Health Administration (OSHA) penalties will increase for 2018 as follows:

• Other-than-Serious: $12,934
• Serious: $12,934
• Repeat: $129,336
• Willful: $129,336
• Posting Requirement Violation: $12,934
• Failure to Abate: $12,934

These increases apply to states with federal OSHA programs; rates for states with OSHA-approved State Plans will increase to these amounts as well; State Plans are required to increase their penalties in alignment with OSHA’s to maintain at least as effective penalty levels.

These new penalty increases are effective as of January 2, 2018 and apply to any citations issued on that day and thereafter.

Read the Federal Register

Agencies Release Advance Copies of Form 5500 for Filing in 2018

The Employee Benefits Security Administration (EBSA) the Internal Revenue Service (IRS), and the Pension Benefit Guaranty Corporation (PBGC) released the advance informational copies of the 2017 Form 5500 and related instructions. For small employee benefit plan reports, advance short form copies of 2017 Form 5500-Short Form (SF) and 2017 Instructions for Form 5500-SF were also released with supplemental materials including schedules and attachments.

Read about and download the Form 5500 Series