WHEN IS AN INTERN AN EMPLOYEE?

Velarde v. GW GJ, INC., Court of Appeals, 2nd Circuit, February 5, 2019:

"In Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528 (2d Cir. 2015), we addressed the application of certain federal and state employment laws to activities performed in a commercial setting by temporary "interns." We applied a "primary beneficiary" test: if, under certain enumerated circumstances, the intern is the "primary beneficiary" of the relationship, then the host entity is not the intern's employer and has no legal obligation to pay compensation under those laws; if, on the other hand, the host entity is the "primary beneficiary" of the relationship, then the entity is an employer and federal and state employment laws—in particular, the Fair Labor Standards Employment Act, 29 U.S.C. §§ 201 et seq. ("FLSA"), and Articles 6 and 19 of the New York Labor Law §§ 190, 650 et seq. ("NYLL")—impose compensation obligations.

In the case at bar, we consider the applicability of this test to individuals enrolled in a for-profit vocational academy who are preparing to take a state licensure examination and who must first fulfill state minimum training requirements. These individuals fulfill those requirements by working under Academy supervision for a defined number of hours, without pay. We determine that the Glatt test governs in the for-profit vocational training context, and we further conclude that here, the plaintiff, former student of the Academy was the primary beneficiary of the relationship, thus excusing the latter from potential compensation obligations under FLSA or NYLL related to plaintiff's limited work there as a trainee."

WHEN CAN AN EMPLOYER RECOVER ATTORNEY FEES WHEN A WHISTLEBLOWER CASE IS DISMISSED

Berde v North Shore- Long Is. Jewish Health Sys., Inc., 2018 NY Slip Op 03955, Decided on June 6, 2018, Appellate Division, Second Department:

"The plaintiff commenced this action to recover damages for unlawful termination of employment in violation of Labor Law § 740. After years of discovery and motion practice, including two appeals in which this Court vindicated the plaintiff's right to proceed with this action (see Berde v North Shore-Long Is. Jewish Health Sys., Inc., 98 AD3d 932, 932-933; Berde v North Shore-Long Is. Jewish Health Sys., Inc., 50 AD3d 834, 835-836), the Supreme Court, following a nonjury trial, decided in favor of the defendant in a decision dated July 25, 2014. In an order dated October 21, 2014, the court awarded the defendant attorneys' fees and costs pursuant to Labor Law § 740(6) in the sum of $591,071.70. The court entered a judgment dated March 20, 2015, upon the decision and the order. In an order dated September 8, 2015, the court granted the plaintiff's motion [*2]for leave to reargue the award of attorneys' fees and costs, but upon reargument, adhered to its original determination. The plaintiff appeals from the judgment and the order dated September 8, 2015.

Although the decision of the trial court upon which the judgment was based did not state the essential facts (see CPLR 4213[b]), this Court has before it the complete trial record, which is sufficient to conduct an independent review of the evidence so as to make the requisite findings of fact (see Park E. Constr. Corp. v East Coast Mech. Servs., Inc., 133 AD3d 581, 582; Hugh O'Kane Elec. Co., LLC. v MasTec N. Am., Inc., 45 AD3d 413, 414; Atlantic Contr. Corp. v Hartford Acc. & Indem. Co., 155 AD2d 571, 572). " In reviewing a determination rendered after a nonjury trial, the power of this Court is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts'" (Galbraith v Westchester County Health Care Corp., 140 AD3d 696, 697, quoting Furino v O'Sullivan, 137 AD3d 1208, 1209-1210). Upon our independent review, we conclude that the determination to dismiss the complaint was warranted by the facts presented at trial (see Hookman v Lenox Hill Hosp., 241 AD2d 333, 333). In particular, the weight of the evidence established that the defendant had a nonretaliatory justification for dismissing the plaintiff, as she had numerous conflicts with other hospital staff and failed to improve in that respect despite opportunities to do so.

Labor Law § 740(6) provides that a court, in its discretion, may award an employer attorneys' fees and costs if it determines that the employee's action is " without basis in law or in fact'" (Tomo v Episcopal Health Servs., Inc., 85 AD3d 766, 768-769, quoting Labor Law § 740[6]). Here, the trial record included testimonial and documentary evidence of the plaintiff's numerous complaints about ongoing sterility problems in the operating room, which problems arguably constituted a violation of applicable regulations and posed a present, substantial, and specific danger to patient health. The plaintiff and other witnesses testified that these issues arose hundreds of times over the relevant time period and were not seriously addressed until after the plaintiff finally complained to her supervisor's supervisor. The plaintiff's annual performance evaluations demonstrate that she met or exceeded expectations throughout her tenure as a nurse manager and, despite identifying areas for improvement, did not indicate a risk of dismissal until after she complained to upper management. While ultimately unpersuasive in light of the defendant's evidence, the plaintiff's action "cannot reasonably be characterized as being without basis in law or in fact'" (Lukose v Long Is. Med. Diagnostic Imaging, P.C., 120 AD3d 1312, 1313-1314, quoting Labor Law § 740[6]). The Supreme Court therefore improvidently exercised its discretion in awarding the defendant attorneys' fees and costs pursuant to Labor Law § 740(6)."

COMMISSIONED SALESPERSONS - WRITING REQUIRED WHETHER EMPLOYEE OR INDEPENDENT CONTRACTOR

N.Y. Labor Law § 191(c) requires that agreements with commissioned sales workers be in writing and signed by the employer and the employee.

The statute provides:

"c. Commission salespersons.--A commission salesperson shall be paid the wages, salary, drawing account, commissions and all other monies earned or payable in accordance with the agreed terms of employment, but not less frequently than once in each month and not later than the last day of the month following the month in which they are earned;  provided, however, that if monthly or more frequent payment of wages, salary, drawing accounts or commissions are substantial, then additional compensation earned, including but not limited to extra or incentive earnings, bonuses and special payments, may be paid less frequently than once in each month, but in no event later than the time provided in the employment agreement or compensation plan.  The employer shall furnish a commission salesperson, upon written request, a statement of earnings paid or due and unpaid.  The agreed terms of employment shall be reduced to writing, signed by both the employer and the commission salesperson, kept on file by the employer for a period not less than three years and made available to the commissioner upon request.  Such writing shall include a description of how wages, salary, drawing account, commissions and all other monies earned and payable shall be calculated.  Where the writing provides for a recoverable draw, the frequency of reconciliation shall be included.  Such writing shall also provide details pertinent to payment of wages, salary, drawing account, commissions and all other monies earned and payable in the case of termination of employment by either party.  The failure of an employer to produce such written terms of employment, upon request of the commissioner, shall give rise to a presumption that the terms of employment that the commissioned salesperson has presented are the agreed terms of employment."

Also note for sales representatives who are not employees there is Labor Law 191-b:

"1. When a principal contracts with a sales representative to solicit wholesale orders within this state, the contract shall be in writing and shall set forth the method by which the commission is to be computed and paid.

2. The principal shall provide each sales representative with a signed copy of the contract.  The principal shall obtain a signed receipt for the contract from each sales representative.

3. A sales representative during the course of the contract, shall be paid the earned commission and all other monies earned or payable in accordance with the agreed terms of the contract, but not later than five business days after the commission has become earned."

Of course, the status of a sales representative as an independent contractor is a complex matter that depends on a number of factors.

See https://labor.ny.gov/legal/counsel/pdf/payment-of-commissions-frequently-asked-questions.pdf

LABOR LAW - NOTICE OF PAY RATE AND PAYDAY

From the Schwartz Law Firm blog:

"An amendment to a New York State Labor Law went into effect on October 26, 2009. Employers are now required to give newly-hired workers written notice of the rate at which they will be paid and their regular payday. (New York’s Labor Law Sec. 195.1) The new law is intended to eliminate misunderstandings and pay disputes, and to resolve them if they occur.

The notice must be provided on a form available from the New York State Department of Labor, and must be given to new employees before they do any work. The written notice must also include the employee’s overtime rate of pay, if they qualify for overtime. The employer must have the new employee sign a statement saying that the employee has received the written notice. The signed statement must be kept by the employer for six years."

The required Notice and Acknowledgment to be given and signed by employees can be found by clicking on the title above.