WASHINGTON (AP) — Unpaid internships have long been a path of opportunity for students and recent grads looking to get a foot in the door in the entertainment, publishing and other prominent industries, even if it takes a generous subsidy from Mom and Dad.

But those days of working for free could be numbered after a federal judge in New York ruled this week that Fox Searchlight Pictures violated minimum wage and overtime laws by not paying interns who worked on production of the 2010 movie "Black Swan."

The decision by U.S. District Judge William H. Pauley III may lead some companies to rethink whether it's worth the legal risk to hire interns to work without pay. For many young people struggling to find jobs in a tough economy, unpaid internships have become a rite of passage essential for padding resumes and gaining practical experience.

"I'm sure this is causing a lot of discussions to be held in human resource offices and internship programs across the country," said David Yamada, professor of law at Suffolk University in Boston.

There are up to 1 million unpaid internships offered in the United States every year, said Ross Eisenbrey, vice president of the Economic Policy Institute, a liberal-leaning think tank. He said the number of internships has grown as the economy tumbled and he blamed them for exploiting young workers and driving down wages.

"The return on a college investment has fallen, students are facing higher and higher debt burdens, and the reaction of employers is to make matters worse for them by hiring more and more people without paying them," Eisenbrey said.

In the ruling, Pauley said Fox should have paid the two interns who filed the lawsuit because they did the same work as regular employees, provided value to the company and performed low-level tasks that didn't require any specialized training.

The interns, Eric Glatt and Alexander Footman, performed basic administrative work such as organizing filing cabinets, tracking purchase orders, making copies, drafting cover letters and running errands.

"Undoubtedly Mr. Glatt and Mr. Footman received some benefits from their internships, such as resume listings, job references and an understanding of how a production office works," Pauley wrote. "But those benefits were incidental to working in the office like any other employees and were not the result of internships intentionally structured to benefit them."

Chris Petrikin, a spokesman for 20th Century Fox, said the company believes the ruling was erroneous and plans to appeal. Fox had argued that the interns received a greater benefit than the company in the form of job references, resume listings and experience working at a production office.

Juno Turner, an attorney for the plaintiffs, said it was the first time a court had given employee status to young people doing the types of duties commonly associated with interns. The case is one of several that have been filed in recent years demanding that all interns deserve a salary.

"This is an incredibly important decision as far as establishing that interns have the same wage and hour rights as other employees," Turner said. "You can't just call something an internship and expect not to pay people when the interns are providing a direct benefit to the company."

In ruling for the interns, the judge followed a six-part test outlined by the Labor Department for determining whether an internship can be unpaid. Under the test, the internship must be similar to an educational environment, run primarily for the benefit of the intern as opposed to the employer, and the intern's work should not replace that of regular employees.

Glatt, the lead plaintiff, lamented the fact that unpaid internships have become so normal "people do it without blinking an eye."

"It's just become a form of institutionalized wage theft," he said Wednesday in a conference call with reporters. Glatt has an MBA from Case Western Reserve University and said he is currently studying law at Georgetown University Law Center.

Another prominent lawsuit is challenging unpaid internships at Hearst Magazines. Last month, a federal judge in New York declined to let the interns pursue their case against Hearst as a class action.

Camille Olson, an attorney who represents employers in workplace litigation, said the Fox decision was just one judge's opinion that may be overturned on appeal. But she said many employers are now "taking a harder look at the issue."

"There's a lot more interest in making sure intern programs are structured correctly or, if an employer doesn't want to have any risk, then paying minimum wage," Olson said.

She said many employers believe they don't need to pay interns because they offer counseling and mentoring similar to what a teacher might offer in a vocational program.

"They view themselves as actually spending a lot of resources on these programs," Olson said.

But Yamada, the law professor, said the growth of unpaid internships unfairly leaves out students and graduates from lower economic levels who can't afford to work for free.

"If you're a college kid that has to make some money over the summer, maybe you go work for a food store instead of applying for that fancy internship in the entertainment or arts industry," he said. There's nothing wrong with a tryout program that lets them scout out the talent, but they should at least pay minimum wage."

Non-Compete Agreements Can Shackle Your Options in Florida

ST. PETERSBURG — One of St. Petersburg's most celebrated, and controversial, chefs is not cooking in a restaurant today. Or any time soon.

Domenica Macchia — formerly of Redwoods, MJ's, Diner 437, BellaBrava and Shackleton's Folly, all in St. Petersburg — has been hit with a temporary injunction over a noncompete contract she signed with her former employer. That means this itinerant local chef is legally forbidden to ply her trade in any Pinellas County restaurant, in any capacity, until February 2014, according to her lawyer, Francis M. King.

Some restaurant industry analysts estimate that chefs change jobs every 12 to 24 months, which is why it was perhaps unwise for Macchia to have signed such an agreement with Three Birds Tavern when she began working there in March 2011. Macchia and Three Birds had an acrimonious parting (not the first for Macchia) toward the end of 2012, and in January Three Birds' owners Robin and Jack King filed a lawsuit against her in Pinellas County for breach of contract.

In addition, the Kings filed a suit against Dan Soronen. Formerly the owner of the Old Northeast Tavern, Shackleton's Folly and Brewburgers, all in St. Petersburg, Soronen took over management of Beak's Old Florida along with new owner Jason McNeil, renaming the bar/restaurant at 2451 Central Ave. Beak's St. Pete and bringing on chef Macchia. Despite having had a falling out while working together at Shackleton's Folly, Soronen was eager to have Macchia "revamp the whole menu."

On Tuesday, a new menu was unveiled. And, on Thursday, Macchia received news about the injunction.

Why would a seasoned chef sign such an agreement?

"I signed a contract because I had been out of work for 10 months, my lights were going out in seven days," explains Macchia. "I never read it."

Whether this was wise is clearly moot, but it does raise questions about intellectual property and trade secrets in the restaurant business.

Macchia has made a name for herself with signature items such as a bacon brittle with seared scallops that she developed at MJ's and a bacon onion jam she invented at Diner 437 (she likes bacon). She has brought those with her in subsequent ventures, but neither appears on Beak's new menu. Are there menu items on Beak's new menu that reprise, or plagiarize, menu items from Three Birds' menu? No.

McNeil, who has put Macchia on administrative leave at Beak's with pay, thinks the suit is frivolous.

"My gut is it's a simple case of bullying, a case of who has the most money wins. I don't think that Beak's competes with them in any way. It's a totally different environment and atmosphere."

A not-yet-scheduled meeting with a judge will determine the permanent ruling in this case. The Kings could not be reached Friday for comment, but opinions about the suit have come from other arenas as well. Jonathan Pollard, a trial lawyer and litigator in Fort Lauderdale, took up the issue on his blog, TheNonCompeteBlog.com.

"At least in Florida, an agreement not to compete falls in the same category of illegal contract or conspiracy unless it is necessary to protect a legitimate business interest," he writes. "The question, then, is whether or not a non-compete agreement is necessary to protect a restaurant when a prominent chef jumps ship and goes to work for another restaurant across town. There are no trade secrets at issue. There is no confidential information. There are no unique customer relationships, because restaurant patrons frequent many different restaurants."

At least one customer agrees. Annette Baesel, a St. Petersburg resident and retired environmental planner, has followed Macchia's career in St. Petersburg restaurants.

"This isn't like Le Bernardin, like they've invested years in a chef. That's not the food scene in St. Petersburg. It doesn't make any sense. No one eats at the same restaurant every night of the week. We eat out four to five times a week, almost always in St. Petersburg. What (the Kings) are doing is denying me the pleasure of going somewhere that she cooks just because they got their knickers in a twist."

Florida lawmakers consider wage theft bill

Businesses and workers-rights advocates are fighting over a bill that would set uniform state standards for employees who say they haven't been paid their full wages to seek compensation.

The bill would require workers to file a claim through the courts and would limit damages to the amount they are owed, with no clause of punitive damages. It also would preclude cities and counties from enacting their own systems, with an exception for Miami-Dade County, which would be allowed to keep most of the system it enacted in 2010.

Florida is one of the few states without a labor department, which is where most wage disputes are settled elsewhere.

The Florida Retail Federation says a consistent statewide system is necessary. The federation, which represents over 7,000 businesses, challenged Miami-Dade's ordinance in the courts but lost. Samantha Padgett, general counsel for the federation, rejected critics' assertion that the bill would make recovering lost wages more difficult.

"The small claims court system is designed for people to be able to navigate without legal representation," she said.

Opponents say the bill would make claiming unpaid wages costly and cumbersome. Many workers at low-paid jobs live paycheck to paycheck and cannot afford an attorney nor take time away from work to be in court, they say.

Jeanette Smith, executive director of the South Florida Interfaith Worker Justice organization, said the bill would give employers an incentive to engage in wage theft, as it provides no real penalty for employers beyond paying back wages.

Workers "go through all this, and they cannot even get damages," Smith said. She cited hospitality, construction, security and agriculture as some of the fields with the highest rates of wage theft.

Broward County Mayor Kristin Jacobs told a recent hearing that wage theft "is a huge problem" in her county. "There are companies where not paying workers has become their business model," she said. "I call them pirates."

Jacobs said that if a provision is going to be carved out for Miami-Dade, Broward should get one, too.

The bill has been filed by Representative Tom Goodson, R-Titusville, who has filed similar pre-emption bills over the past three years, though this is the first to outline a compensatory procedure for wage theft claims. Goodson did not respond to repeated requests for comment.

The bill requires that workers first notify employers that they intend to file a civil action and specify the amount owed and the dates and hours worked. The employer would then have 15 days to pay or otherwise resolve the complaint. The claim must be filed within one year of the date the work was performed, and workers must prove wage theft "by a preponderance of evidence" — the facts would have to show that the theft was more likely to have happened than not.

"That's not an overwhelming burden to overcome," Padgett said.

While Miami-Dade's ordinance would be allowed to remain in effect for smaller companies, it would not apply to any company with an annual gross volume of sales or business of more than $500,000. Those would fall under the state law.

Under Miami-Dade's regulations, an employee can file a claim through the county Small Business Development's Wage Theft Unit, which then contacts the employer to mediate a resolution. If a settlement can't be reached, the employer is sent a complaint and a hearing is scheduled. So far almost $600,000 for 471 workers has been recovered through mediation, and another $1 million to 411 through an administrative hearing process, according to South Florida Interfaith Worker Justice.

Rep. Jose Javier Rodriguez, D-Miami, said most people who have used Miami-Dade's process don't have other recourse and cannot afford a lawyer.

"There are other counties considering following Miami-Dade's lead," he said. "I don't think that's good policy to exclude Miami-Dade only."

Rodriguez said Goodson's bill "goes way beyond pre-emption. This really is aimed at rolling back existing rights that employees have."

An analysis by the National Employment Law Project, a New York-based advocate for workers, said the bill would penalize employees for company failure to keep accurate records.

The group concluded that the bill "would severely impact the rights of low-wage workers and their families and local economies that rely on these wages to stay afloat."

The Associated Press

2013-03-27 12:00:00 AM

American Legislative Exchange Council is the DEVIL

GOP state lawmakers aim to kill local sick-time measures

The brutal political fight over mandatory sick time for workers in Orange County is about to move to Tallahassee, as two Central Florida lawmakers want to block locally driven efforts supporting the idea.

Sen. David Simmons, R-Altamonte Springs, and Rep. Steve Precourt, R-Orlando, say the proposed sick-time measures now being considered in Orange and Miami-Dade counties could put those counties at a competitive economic disadvantage. They argue that such policies should not be adopted patchwork-style across Florida.

"The discrimination that would occur to employers only in Orange County is so significant, we would need to have a statewide solution to this issue," Simmons said.

That could undo the efforts of Citizens for a Greater Orange County, a progressive coalition that secured more than 50,000 voter signatures to get the sick-time measure on the Nov. 6 ballot in Orlando. However, Orange County commissioners on Sept. 11 voted to delay the referendum.

If approved, the measure would require businesses with 15 or more workers to provide paid sick leave for their workers. A host of business leaders oppose the idea, saying it would be expensive and "kill" jobs.

A court battle over the referendum, as well as a separate legal fight over a raft of text messages related to the commission's delay vote, are both still pending.

None of that might matter if Simmons and Precourt are successful in creating legislation blocking local efforts.

In Wisconsin, Milwaukee voters overwhelmingly backed a similar measure in 2008. It survived legal challenges only to see Republican lawmakers and Gov. Scott Walker pre-empt it with a statewide law in 2011.

In Orange, Citizens leaders say the Central Florida lawmakers pushing pre-emption are ditching their professed beliefs in local control and suppressing local voting rights in order to protect the profits of restaurants and tourism interests.

"It's no surprise that [Simmons and Precourt,] ... who have voted 100 percent with [Gov.] Rick Scott against middle-class Floridians, would go out of their way to deny more than 50,000 Orange County citizens the right to vote for an issue they petitioned their government" for, Citizens leader Stephanie Porta said. "They are flacks for big-business special interests."

Supporters say the sick-time measure would provide economic stability for ailing workers or those who risk being fired to care for a child. For businesses, it would curb job turnover and health-care costs, they say.

Opponents say sick-time measures are well-intentioned but would cause bureaucratic headaches and hurt businesses still reeling in the tough economy. And passing a variety of sick-time measures across the state would be even more unwieldy, they say.

"Many variables come into play that could be extremely burdensome on business," a briefing from the Florida Restaurant & Lodging Association said. "If a business has locations in 30 counties in Florida, they could have 30 different [paid-sick-leave] rules to follow."


Porta said companies could avoid that by adopting statewide sick-time protections. She said large businesses already navigate differing regulations from county to county.

In interviews, neither Simmons nor Precourt expressed interest in adopting a statewide sick-time standard, although both said they were willing to listen to all sides in the debate.

However, Simmons said a statewide sick-time standard "would be a heavy lift."

In Orange, Walt Disney World, Darden Restaurants and Mears Transportation all lobbied to kill the sick-time measure. A coalition of business groups also legally challenged the ballot language as misleading.

Orange County GOP Chairman Lew Oliver worked behind the scenes to delay the local referendum. In a newly released text message, he argued that a delay in Orange was necessary so the "Legislature can deliver the kill shot."

Those text records also show Precourt texted county leaders, including Orange County Mayor Teresa Jacobs, on Sept. 11, just before four other county leaders voted to delay the measure. At the time, Jacobs did not know who sent the text. He wrote: "Just letting you know I'm here to support you folks as necessary."

In an interview, Oliver said ballot referendums that allow slim majorities to create new benefits for themselves are "borderline evil" and in Orange would drive away new and existing businesses.

"I don't think the economy can absorb it," Oliver said.

January 6, 2013|By David Damron, Orlando Sentinel

FHP Officer Files Civil Lawsuit Against More Than 100 Officers

The Florida Highway Patrol trooper at the center of firestorm after she pulled over a speeding cop at gunpoint said fellow law enforcement officers have created a "life-threatening" situation that caused her to be in such fear for her safety she has become a "hermit."

Trooper Donna "Jane" Watts' 69-page lawsuit, filed in federal court Friday, seeks more than $1 million in damages. She is suing more than 100 police officers and agencies, and the Department of Highway Safety and Motor Vehicles. The suit alleges 88 law enforcement officers from 25 jurisdictions illegally accessed her personal information more than 200 times, violating her privacy. Labor Employment Attorney Florida

Watts made national news in October 2011 when she pulled over off-duty Miami Police Officer Fausto Lopez for speeding in his marked patrol car on Florida's Turnpike in Broward County.

She followed him for seven minutes and later wrote in a report that he was darting in and out of lanes at speeds exceeding 120 mph. She approached his cruiser with her gun drawn, yelling, and then handcuffed him. Labor Employment Attorney Florida

Lopez, who regularly averaged more than 100 mph on his drive between Miami and his home in Coconut Creek, was fired in September.

But in the months after the incident, officers looked up information such as her home address, picture, Social Security number, date of birth, and detailed vehicle description in a database available to police officers, according to her lawsuit.

The suit alleges the police agencies — including the Broward Sheriff's Office, Lauderhill and Hollywood Police — did not properly train their officers, who used the information they received to intimidate Watts. None of the agencies were able to comment Monday. Labor Employment Attorney Florida

Other agencies have already settled with her and so are not named in the lawsuit, according to Watts' attorney Mirta Desir. Margate, for example, settled for $10,000 after two of its police officers accessed her private information, said Margate city attorney Gene Steinfeld.

The two Margate officers each received a letter of reprimand as punishment.

"The law had indeed been broken," said Steinfeld on Monday.

Watts said after the incident she received random calls on her home and cell phones, some threatening. Pranksters ordered pizza delivery to her house, according to the suit. Watts, who lives on a cul-de-sac, said several vehicles would also stop in front of her driveway or idle on her street.

The suit states that Watts has been so upset about the privacy violations that she has "started to experience physical symptoms to include dry heaves and nausea when performing basic activities such as opening her mailbox, starting her ignition, or when being followed by a law enforcement vehicle for no apparent reason."

Watts began opening her mailbox from the side instead of from the front in case there was something in it. Labor Employment Attorney Florida

The suit states that Watts' supervisors "do not believe that it would ever be safe for her to return to road patrol" and that Watts believes if she ever need police backup in an emergency, it would not be provided. More than a dozen troopers from her own agency also looked up her personal information.

She is also in the process of moving, according to the suit.

"This is an invasion of privacy," Desir said. "Law enforcement does have access to information most residents don't and with that level of access there should come a certain amount of care. ... This is something that is not supposed to be done."

When Watts pulled over Lopez, the incident was caught on the trooper's dashboard camera. "This is not a first-time occurrence with y'all," Watts told Lopez after pulling him over. "Y'all come from that way all the time, this Miami police car, and we never catch it." Labor Employment Attorney Florida

Lopez apologized and tried to explain he was running late. "With all due respect ...," he said, but Watts cut him off. "You don't respect me, sir," she said. "You don't respect these people out here."

Dental Assistant Fired For Being Too Good Looking.

After working as a dental assistant for ten years, Melissa Nelson was fired for being too "irresistible" and a "threat" to her employer's marriage.
"I think it is completely wrong," Nelson said. "I think it is sending a message that men can do whatever they want in the work force."

On Friday, the all-male Iowa State Supreme Court ruled that James Knight, Nelson's boss, was within his legal rights when he fired her, affirming the decision of a lower court. Labor Employment Miami Florida
"We do think the Iowa Supreme Court got it completely right," said Stuart Cochrane, an attorney for James Knight. "Our position has always been Mrs. Nelson was never terminated because of her gender, she was terminated because of concerns her behavior was not appropriate in the workplace. She's an attractive lady. Dr. Knight found her behavior and dress to be inappropriate."

For Nelson, a 32-year-old married mother of two, the news of her firing and the rationale behind it came as a shock. Labor Employment Miami Florida

"I was very surprised after working so many years side by side I didn't have any idea that that would have crossed his mind," she said.

The two never had a sexual relationship or sought one, according to court documents, however in the final year and a half of Nelson's employment, Knight began to make comments about her clothing being too tight or distracting.
"Dr. Knight acknowledges he once told Nelson that if she saw his pants bulging, she would know her clothing was too revealing," the justices wrote. Florida Discrimination Lawyer

Six months before Nelson was fired, she and her boss began exchanging text messages about work and personal matters, such as updates about each of their children's activities, the justices wrote.
The messages were mostly mundane, but Nelson recalled one text she received from her boss asking "how often she experienced an orgasm."

Nelson did not respond to the text and never indicated that she was uncomfortable with Knight's question, according to court documents.

Soon after, Knight's wife, Jeanne, who also works at the practice, found out about the text messaging and ordered her husband to fire Nelson.

The couple consulted with a senior pastor at their church and he agreed that Nelson should be terminated in order to protect their marriage, Cochrane said.

On Jan. 4, 2010, Nelson was summoned to a meeting with Knight while a pastor was present. Knight then read from a prepared statement telling Nelson she was fired.
"Dr. Knight felt like for the best interest of his marriage and the best interest of hers to end their employment relationship," Cochrane said.

Knight acknowledged in court documents that Nelson was good at her job and she, in turn, said she was generally treated with respect.

"I'm devastated. I really am," Nelson said.

When Nelson's husband tried to reason with Knight, the dentist told him he "feared he would have an affair with her down the road if he did not fire her."

Paige Fiedler, Nelson's attorney, said in a statement to ABC News affiliate KCRG that she was "appalled" by the ruling. Florida Discrimination Lawyer

"We are appalled by the Court's ruling and its failure to understand the nature of gender bias.," she wrote.
"Although people act for a variety of reasons, it is very common for women to be targeted for discrimination because of their sexual attractiveness or supposed lack of sexual attractiveness. That is discrimination based on sex," Fiedler wrote. "Nearly every woman in Iowa understands this because we have experienced it for ourselves."

Law Office of Lowell J. Kuvin, LLC - Labor and Employment Attorneys

Florida Minimum Wage Increases January 1, 2013

On November 2, 2004, Florida voters approved a constitutional amendment that created Florida's minimum wage. The minimum wage applies to all employees in the state who are covered by the federal minimum wage. Florida law requires a new minimum wage calculation each year on September 30, based on the Consumer Price Index. If that calculation is higher than the federal rate (which is currently $7.25 per hour), the state's rate then would take effect the following January.

Florida's minimum wage is currently $7.67 per hour, effective January 1, 2012. According to our discussions with state officials, beginning January 1, 2013, Florida's minimum wage will be $7.79 per hour, which is a 1.5% (or $0.12) increase from last year due to the change in the Consumer Price Index.

Employers of "tipped employees" who meet eligibility requirements for the tip credit under the Fair Labor Standards Act (FLSA) may count tips actually received as wages under the FLSA. However, the employer must pay "tipped employees" a direct wage. Effective January 1, 2013, the new minimum wage for tipped employees should become $4.77 per hour plus tips. Labor Employment Miami Florida

The state is scheduled to issue a press release today, confirming the rates. In deciding whether the federal or state minimum wage applies, federal law directs that businesses must pay the higher of the two. The Florida minimum wage will prevail over the federal rate until (and unless) the federal minimum wage becomes higher than the state rate. Labor Employment Miami Florida

Employers must pay their employees the hourly state minimum wage for all hours worked in Florida. The definitions of "employer," "employee," and "wage" for state purposes are the same as those established under the FLSA.

An employee who has not received the lawful minimum wage after notifying his or her employer and giving the employer 15 days to resolve any claims for unpaid wages may bring a civil action in a court of law against an employer to recover back wages plus damages and attorneys' fees. The state attorney general may also bring an action to enforce the minimum wage. Labor Employment Miami Florida