here for the unwary. DOL guidelines state that if an intern is placed with an employer for a trial period — during which she will be evaluated for a permanent position — then the intern is likely an employee during that trial period as well and should be paid a wage. For our sixth criterion, we turn away from the facts of the engagement and get to the understanding of the parties. Like the fifth criterion, the sixth presents some potential good news for our employer as well as another trap. The good news is that if both the employer and the intern understand that the position is one for which no wages will be owed, then we will have met the criterion. But beware the trap — or rather traps — presented by this test. First, it requires a meeting of the minds between the employer and the intern. And since the distillery is only one side of that equation it is possible that the employer would believe there was agreement when in fact the intern did not agree and did expect to be paid. In that circumstance, the criterion would not be met. Secondly, note that the guidelines are somewhat unclear on whether the criterion can be met if the intern understands that she is not entitled to payment but her understanding is incorrect because — for example — the internship fails any one of the preceding five criteria. In that circumstance too it is possible that the internship will fail the sixth. So, how did we score on the internship test? Not great. One or two out of six is not good. But this exam is pass/fail — and that means we fail. Our internship must meet all of the six criteria in order to qualify for the exclusion from FLSA wage protections — and ours didn’t measure up. Of course, some distilleries will try to get past these volunteer and internship issues by having the laborers sign an agreement
— possibly even one they spent good money getting an attorney to draft — that claims to waive their rights to payment under the FLSA and applicable state and local law. And if the bottling party situation is enough to keep me up at night, the waiver issue is enough to make me puke the still. Let me take this opportunity to be unequivocal. If an individual is entitled to the wage protections of the FLSA, that individual cannot waive those rights. Such a waiver is unenforceable and will be disregarded by the DOL or any court that considers the matter. Sure, having someone sign a waiver may have a slight deterrent effect; to the extent that they believe they have waived any rights they have it may make them less likely to bring a claim. But at the same time, having someone sign a waiver suggests that the employer knew the laborer was entitled to the protections of the FLSA. So, by requiring that the would-be volunteer or intern sign the waiver, the employer has actually strengthened the case of the DOL or any plaintiff trying to bring a claim for unpaid wages. On balance, an employer is probably better off not seeking an unenforceable waiver that makes it look like they were trying to skirt the law. And if the distillery’s attorney told them the waiver would work, the distillery needs a new attorney. At this point, a distillery might well acknowledge that using this type of labor is a technical violation — a foot fault if you will — but question whether that liability has any real likelihood of surfacing. A recent case suggests that it does. The case doesn’t relate to spirits producers, but does concern a similarly passionate group of individuals — yoga practitioners. In October 2016, a class action lawsuit was filed in United States District Court for the Northern District of California,
IF AN INDIVIDUAL IS ENTITLED TO THE WAGE PROTECTIONS OF THE FLSA, THAT INDIVIDUAL CANNOT WAIVE THOSE RIGHTS.
Three generations of raising premium grains for distilleries of all sizes. distillinggrains.com TOBY BLAKE 112
Published on Dec 14, 2017