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FMG Law Blog Line

Archive for February, 2014

Internships Can Be Costly For Employers

Posted on: February 20th, 2014

By: Joyce Mocek

Last week, an unpaid intern that worked for fashion house Alexander McQueen sued the British fashion label alleging that she should have been paid at least minimum wage during her four month internship.  Unpaid internships have become the modern day equivalent of entry level positions, except that there is no pay.  These internships have gained increased attention over the past year as misclassifying individuals can result in litigation and fines to employers.

The Fair Labor Standards Act (FLSA) establishes minimum wages and overtime requirements.  One exception to the FLSA requirements is that a “for-profit, private-sector employer” may hire individuals for internships or training programs without compensation if it is primarily for the individual’s educational benefit.   However, this exception is narrowly construed.   The Department of Labor (DOL) lists six criteria that must be met for the exception to apply, and only if all the factors are met, do the FLSA’s minimum wage and overtime pay requirements not apply.   Courts, in addition to considering the DOL factors, also look at the “totality of the circumstances.”

There has been a growing trend of cases filed by unpaid and underpaid interns claiming violations of minimum wage and overtime laws.   As a result, employers that are interested in having internship or training programs, should carefully evaluate the circumstances and consider formalizing written agreements with their interns.   Employers should also consult with counsel for further guidance in this area.   These steps will help ensure that the interns are not misclassified and/or underpaid, and aid in avoiding costly litigation and potential fines.

Washington Attempts to “Modernize” Immigration

Posted on: February 20th, 2014

 

By: Kelly Eisenlohr-Moul

Political pundits much savvier than me are predicting that immigration “reform” likely will pass in the next year.  Below is a preview of the provisions employers can expect to see:

  • Mandatory E-Verify: Although Georgia already requires participation for businesses with 11 or more employees, a federal mandate is almost certain
  • Increased Civil Penalties Associated with Employment Verification Violations
    • Knowingly hiring unauthorized workers: $3500-$25,000 per worker!
    • Failing to comply with document verification: $500-$8000 per worker!
  • Reformed Social Security Administration Initiatives
    • Clarifies appropriate response to “no-match” letters 
  • Enhanced Antidiscrimination Provisions
    • Expands prohibitions on discrimination based on national origin or citizenship status
    • Allows EEOC to refer charges to the Department of Justice, which is much more aggressive in their enforcement 
  • Increased visa opportunities for qualified foreign workers
    • More opportunities for H1B and other specialty occupation immigrants 

As most employers in Georgia are already obligated to use E-Verify, consider these steps to get ahead of federal immigration reform:

  • Modify your EEO and anti-retaliation policies to include national origin and citizenship status; and
  • Take a free webinar from USCIS on I-9 and/or E-Verify compliance

Is “I’m Sorry” Enough?

Posted on: February 14th, 2014

By: Taryn Kadar

Thirty-six states have “apology laws” which prevent a physician’s apology to a patient to be used against him or her in a medical malpractice lawsuit. Georgia already has such a law on the books (O.C.G.A. § 24-4-416).

Legal experts debate the need for such a law. A plaintiff’s attorney may not want a doctor’s apology to come in as evidence to avoid humanizing the defendant to a jury, or many argue that plaintiff attorneys take cases where the monetary damages are significant, and those lawsuits are not likely to be diffused by an apology. Others, however, believe in the power of forgiveness, and that apologizing early for medical errors coupled with an offer of compensation can reduce costly and timely litigation for everyone involved. The University of Michigan Health System adopted a program in 2001 which encourages physicians to apologize to patients for negligent care. This program has significantly reduced the number of medical malpractice lawsuits filed.

There have been lively discussions regarding “apology laws.” Does it help or hurt the litigation process? Does it provide too much protection for physicians or not enough? Does it provide for more open communication between a patient and a physician after a medical error? What do you think?

As always, when dealing with disclosure laws, please consult a lawyer who is familiar with the state’s law to help determine what is and is not admissible in a lawsuit.

School’s Out For…. Construction

Posted on: February 13th, 2014

By: Stephanie Stewart

Earlier this month, the Marietta Daily Journal reported that major construction is planned for three schools in Cobb County.  Walton High School, Wheeler High School, and Teasley Elementary School are all set to undergo major improvements.  In particular, Walton High School is going to be completely rebuilt.  Construction on these projects is set to begin this year and be complete by 2017.  The Board of Education is currently reviewing bids from design and construction firms.  You can read the full article here.

BITCOIN COMPANIES TEST THE WATERS IN PROVIDING DEPOSIT INSURANCE

Posted on: February 13th, 2014

By: Abby A. Vineyard

Bitcoin is a new peer-to-peer digital currency that replaces the need for traditional money and essentially acts as “cash for the Internet.”  Bitcoin users enjoy several benefits that users of traditional currency simply do not have available to them.  They can use bitcoins to purchase things anonymously, and international transactions are inexpensive and quick since bitcoins are not linked to any specific country or subject to regulation.  Bitcoins are also becoming increasingly popular with small businesses since there are no associated credit card fees.  However, one major benefit bitcoin users do not currently have is the assurance that their money will not completely vanish if their bitcoin wallet (the equivalent of a bank account) is hacked.

Retail banks in the United States are, of course, insured by the Federal Deposit Insurance Corporation, which is the primary reason people trust those banks to store their deposits.  Bitcoin transactions differ from traditional currency transfers in that they are made without any middle men—also known as banks.  This advantage is accompanied by the drawback that the FDIC does not provide coverage to users who lose their bitcoin wallets or have their computers hacked.

However, bitcoin wallet providers are developing solutions to fulfill users’ desire to have their currency protected.  For example, Elliptic, a bitcoin wallet provider based in London, recently began offering deposit insurance to its customers.  The company, which is backed by Lloyd’s of London, guarantees that insured users who lose their bitcoins (due to mismanagement) will be compensated with traditional currency.

Other bitcoin wallet providers are taking a different approach to protecting their users’ currency by storing the majority of the currency offline so that it is inaccessible to hackers.  Additionally, technology companies are developing “hardware wallets” that prevent other software from being installed, thus making it more difficult for hackers to access the bitcoins.

But technological solutions, while a step in the right direction, cannot offer the guarantees and reassurance that deposit insurance provides.  However, it remains to be seen how quickly other private insurers will venture into this new territory.  Bitcoin is relatively new and is not currently regulated or fully understood.  It has also been the subject of negative media attention.  For example, bitcoin prices recently fell dramatically due to the announcement that a bug is allowing third parties that receive a bitcoin transfer to make it appear as if the bitcoins were never actually transferred, thus allowing those third parties to receive multiple transfers.  These types of risks are part of what is causing private insurers to be cautious about their foray into this new technology.  What do you think it will take before more insurers are willing to take on the risks associated with the new currency?