BizLawBuz …. The Power of Know

You Get What You Pay For

I regularly receive inquiries from law school students (or their parents) asking whether our law firm offers unpaid internships that might provide exposure to the legal practice. As someone who routinely cautions employers about wage and hour issues under the Fair Labor Standards Act (FLSA), I am wary of the prospect of having someone working in our offices without receiving a paycheck. In a recently published Fact Sheet (Fact Sheet #73) the United States Department of Labor (DOL) reiterated the DOL’s six-prong test to determine whether an intern is truly exempt from compensation.

Six points must be satisfied
Under the DOL’s test, each of the following six points must be satisfied if the employer sponsors the internship but does not pay compensation to the intern:

1. The internship mirrors training that would be given in an educational environment;
2. The internship is for the primary benefit of the intern;
3. The intern works under close supervision and does not displace regular workers;
4. The employer gains no immediate advantage from the activities of the intern and, on the contrary, may actually have its operations slowed by the intern;
5. There is no guarantee of employment at the end of the internship; and
6. The employer and the intern both understand that there will be no compensation paid to the intern.

The most difficult point to satisfy
The most difficult point to satisfy is the fourth, to-wit, showing that the employer does not receive an immediate advantage. Using our office as an example, an intern who spent most of her day filing papers or updating the computer database would probably be entitled to compensation. On the other hand, if the intern spent most of her time performing legal research on general practice areas – as opposed to a specific, pending case – this prong would likely be satisfied.

Who receives the benefit
The best advice is to focus on who truly receives the benefit. If the employer is making accommodations in its workplace to allow a student to explore career objectives – and if the accommodations are as much of a hassle as a benefit to the employer – the employer is probably on the right track. Additionally, if an actual internship program is established and coordinated with a local school or university to complement student education, that internship program would be viewed much more favorably by the DOL.

You get what you pay for
At the end of the day, you really do get what you pay for. If you expect to get a day’s work without paying a day’s wage, you can also expect a critical eye from the DOL.

Dirk A. Beamer

Members of Wright Penning & Beamer, P.C., along with their families, spent the evening of December 13th sorting and organizing toys at the Toys for Tots warehouse in Farmington Hills. The firm also made a monetary gift to the organization. Sponsored by the U.S. Marine Corps Reserve, the Toys for Tots program collects and distributes new toys for children throughout the United States each holiday season. Locally, the Toys for Tots program works in conjunction with the Farmington area Goodfellows to include toys as part of the Goodfellows’ seasonal deliveries to families in need. For more information, you can find Wright Penning & Beamer at www.wrightpenning.com; Toys for Tots at www.toysfortots.org; and the Farmington Area Goodfellows at www.farmingtonareagoodfellows.org.

In September of last year, we told you about the Genetic Information Nondiscrimination Act of 2008 (GINA), which went into effect November 21, 2009. GINA applies to employers with 15 or more employees. It prohibits discrimination in employment on the basis of genetic information, and it strictly limits the disclosure of that information.

How employers can ensure compliance
The Equal Employment Opportunity Commission (EEOC) is charged with issuing regulations to implement the employment-related provisions of GINA. On November 9, 2010, the EEOC issued its regulations, giving more insight and assistance into how employers can ensure compliance with GINA. Here are some highlights of GINA and the corresponding EEOC regulations:

• GINA is concerned primarily with protecting individuals who may be discriminated against because an employer thinks they are at increased risk of acquiring a condition in the future. (GINA would not protect against individuals discriminated against on the basis of certain forms of breast cancer that have a genetic basis, for example, but would protect an individual whose parent experienced early-onset Alzheimer’s disease.)
• GINA prohibits the use of genetic information in making decisions related to terms, conditions, or privileges of employment, including hiring, firing, and opportunities for advancement. This prohibition is absolute and there are no exceptions. Employers must make their employment decisions based on the individual’s current ability to perform the job.
• Genetic information includes: information about an individual’s genetic tests, or those of their family members; family medical history; requests for and receipt of genetic services by an individual or family member; genetic information carried by an individual or family member or of an embryo legally held by the individual or family member using assisted reproductive technology.
• GINA prohibits employers from requesting, requiring, or purchasing genetic information.
• There are some narrow exceptions where an employer may acquire genetic information. For example, genetic information was acquired inadvertently (e.g., manager overhears a discussion between co-workers; supervisor asks employee about his general well-being or that of his family member; manager is connected to employee on social networking site and employee provides family medical history on her page). An exception also exists where an employee is asking for leave under FMLA because family medical history is a necessary part of the certification process.
• To lawfully request health-related information from an employee (e.g., to support an employee’s request for reasonable accommodation under the ADA, or a request for sick leave), the employer should provide a warning to the employee similar to the following:
• The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.
• Employers must tell their health care providers not to collect genetic information as part of an employment-related medical exam.

Again, employers should take great care when dealing with their employees’ genetic information. Feel free to consult with me or another employment law attorney at Wright Penning & Beamer regarding compliance with GINA in your organization.

Julie Pfitzenmaier

The Michigan Landlord Tenant Relationships Act (the “LTRA”) regulates the relationship between landlords and tenants of residential property in any situation where the landlord requires the tenant to pay a security deposit. Pursuant to amendments to the LTRA that took effect on October 5, 2010, landlords must now release tenants from their leases if the tenant submits written notice and documentation of a reasonable apprehension of present danger to the tenant or to a child of the tenant due to domestic violence, sexual assault or stalking. Key provisions of the amendments include the following:

1. In order to qualify for the release, the tenant must submit to the landlord by certified mail a written notice of the tenant’s intent to seek a release from his or her lease obligation upon the basis that the tenant has a reasonable apprehension of present danger to the tenant or to a child of the tenant due to domestic violence, sexual assault or stalking.
2. The submittal to the landlord must include documentation consisting of 1 or more of the following:
   (i.) a copy of a valid personal protection order, or an order removing an abusive person from the leased premises;
   (ii.) a valid probation order, conditional release or parole order indicating that the released person is to have no contact with the tenant or with a child of the tenant;
   (iii.) a written police report pursuant to which charges have been filed; or
   (iv.) a written report of the tenant verified by a qualified third party attesting to the factual basis for the tenant’s reasonable apprehension of present danger.
3. The landlord may include a statutorily prescribed provision in the lease advising the tenant of this right, or post a notice of the right in the landlord’s property management office, or deliver notice of the right to the tenant at the time the lease is signed.
4. Where the lease obligates multiple tenants to pay rent, only the tenant who meets the requirements of the new provisions is released from the lease; all other tenants remain subject to the lease.
5. The release:
   (i.) does not apply to prepaid rent;
   (ii.) is only effective as to rent that becomes due the first day of the second month after the notice is given;
   (iii.) and is only effective upon the tenant vacating the leased premises. The amendments do not in and of themselves prevent the landlord from withholding the tenant’s security deposit.
6. The landlord may not provide forwarding address information of the tenant to the person who was the source of the tenant’s concerns.
7. The terms “child,” “domestic violence,” “qualified third party,” “sexual assault,” and “stalking” are all defined in the amendments.
8. The amendments apply only to residential leases that are entered into, renewed or renegotiated after October 5, 2010.

The full text of the amendments can be found in Act No. 199 of the Public Acts of 2010; Michigan Compiled Laws Section 554.601b. Click here to download a copy of the amendments.

Duane L. Reynolds