Wednesday, June 26, 2013

The Unpaid Internship under Federal Law

A federal judge has held that unpaid interns for a movie production company were employees under the federal Fair Labor Standards Act (FLSA).  The plaintiffs were unpaid interns for a movie production company in the filming and post-production of the movie Black Swan.   After the internships concluded, the interns sued under the FLSA for its wage and hour protections (minimum wage,  etc.).

Before ruling for the interns (at the Summary Judgment stage) the Judge noted that because the FLSA is a “remedial” statute an “expansive interpretation of its provisions” is warranted so that the statute will have “the widest possible impact in the national economy.”   (emphasis added)

The Judge first found that an employment relationship existed under both the Formal Control Test and the Functional Control Test.

The Judge then looked at whether the movie interns fell within the trainee exception to FLSA coverage established by the U.S. Supreme Court in Walling vs Portland Terminal Co., 330 U.S. 148 (1947).  The Judge also relied on a U.S. Department of Labor Fact Sheet (FS71) based on Walling that lists six criteria for determining whether a person is a trainee not entitled to employee status.  The movie production company argued that the DOL criteria were not an accurate reflection of the law and for a primary beneficiary test.  But the Judge disagreed, finding that the DOL criteria – which use a sole beneficiary test - had “support in Walling” and are entitled to deference. 
The Judge then examined the criteria and found that the interns were not trainees and were entitled to FLSA protections because i) the interns were not given training like in an educational environment, ii) the interns were not the sole beneficiary of the internships, iii) the interns’ work displaced paid employees, and iv) the interns’ work was “essential” and provided immediate advantage to the employer.  The Judge noted that although the interns knew going in that they would not be paid that did not matter because employees are not permitted to decline the protections of the FLSA. 

The decision is Glatt v. Fox Searchlight Pictures Inc., 11 Civ 6784 (WHP) United States District Court for the Southern District of New York.  Memorandum and Order issued June 11, 2013.

Coming soon: The law on unpaid internships in Illinois

Submitted by Brian D. Moore, Class of ’92.

Tuesday, June 25, 2013

Two Job Openings in Aurora

From today's ISBA Job Alert:

Mickey, Wilson, Weiler, Renzi & Andersson, P.C. is an AV rated law firm located in Aurora, Illinois. We are seeking a licensed Illinois attorney with 2 - 4 years experience who is interested in the areas of school law and municipal law. While much of the job will be transactional, there will also be significant client contact, elements of administrative hearings and some litigation.


Whitt Law LLC is an Aurora law firm with a statewide practice is seeking a civil litigator with a minimum of six (6) years of progressively responsible experience in litigation in the circuit courts and before administrative agencies. Candidates must be highly organized and possess excellent analytical skills. This position offers a terrific opportunity to work in a very professional atmosphere where everyone is respected for their contribution to the organization.

Monday, June 17, 2013

Free Bankruptcy and Foreclosure Seminar

I will be presenting a free Bankruptcy and Foreclosure seminar this Friday night, June 21st at 7:00 P.M. at the offices of Intuition Unlimited in Oswego, Illinois.  The seminar will last approximately one hour followed by a question and answer session.

Please contact me or Amy Biank at Intuition Unlimited if you would like to attend the Seminar.  Thanks.

Thursday, June 13, 2013

Time Equals Money

We have all heard the famous Abraham Lincoln quote, "A lawyer's time and advice are his stock in trade."  From that stock in trade, lawyers need to earn enough money to pay the rent, utilities, staff salaries, health insurance, malpractice insurance, bar association dues, student loans, library and legal research costs, postage, office supplies, etc.  And then hopefully after paying all of those expenses, there might be a little profit left over.

But the value of one's time seems to be one of the most difficult concepts for young lawyers to grasp.  It took me awhile to learn how to leverage my time into money when I was a new lawyer so that I could contribute my fair share to the never-ending onslaught of expenses.  I see the same thing from many young lawyers that I know.  They do not appreciate the value of their own time.

Except for certain altruistic exceptions, if you are not going to be paid for a task, why would you do it?  Wouldn't you rather be at the beach or a ball game?  I am approached by clients all of the time who want something for free and then say "I can refer you a ton of business in the future."  I usually say, "I won't need a ton of business in the future because if I can't pay the bills next month I won't even be here in the future."  I need to get paid now for the work I am doing today.  My plumber didn't give me anything for free lately. 

I was reading the ABA Law Practice Management Journal a couple of nights ago.  There was an article about how to get paid.  The author made a great suggestion that I wanted to relay to you guys, but, in my opinion, the author's point was actually the third step in the process of getting paid, so I'll get to it in a second.  According to "Huseman on Law Practice Management" there are at least three separate stages involved in getting paid for your time (this blog post does not apply to contingency fee personal injury attorneys).

First is making sure that your time is recorded into your firm's billing software.  Every time that you respond to an email on your iPhone or take a quick telephone call and do not record that time somewhere, cold, hard cash evaporates into vapor and diffuses into the atmosphere. If you're doing work on a client's file, whether it is legal research, answering an email, taking a phone call, or reading a letter that you received in the mail, make sure that your time is recorded.  The lawyers at my firm record everything on paper and then those time sheets are inputted into our billing software.  EVERYTHING that you do EVERY day needs to be recorded on a time sheet or somehow inputted into your billing software.

The next step involves billing the time that you have recorded.  The time does not do you any good if it stays cooped up in your bookkeeper's software.  You must set it free and transmit it to the client.  Here is where you can do a little filtering if needed.  Because you have written down EVERYTHING on your time sheets, you may look at the monthly summary and realize that certain tasks either weren't billable or maybe should be discounted because they were duplicative or maybe not entirely necessary when you look back at it.  This is the time to make that decision.  Don't filter your time during the course of the month.  Write down EVERYTHING and then filter your time at the end of the month when you are actually preparing your bill.  You still want your client to see the work that you did, even if there is a zero next to it on the invoice.  The client will appreciate the effort you put in and the value that he or she received.

The last step in the process of getting paid was the subject of the article that I was talking about earlier.  The last step is to actually get paid for your bill after you send it out.  Bills don't do much good if they are ignored by the client.  Following up is key.  It is very easy to for an invoice to get lost in the shuffle of someone's kitchen or home office.  A polite reminder from your office to make payment oftentimes does wonders.  Here is what the ABA article suggested:
• The firm should have a procedure for tracking the age of receivables and notifying the attorney and the appropriate staff person when the receivable reaches 40 days.
• There should be telephone contact with the client no later than 45 days following the date of the bill. If agreement cannot be reached in that first call, or if agreement is reached but payment is not made, a second call should be made for the purpose of setting up a meeting with the client to reevaluate the relationship.
• The arranged meeting between the lawyer and client should be similar to the intake meeting. The attorney and client should reevaluate the objective of the work, the status of the matter and on what basis it makes sense to go forward. The meeting could end with (1) payment of overdue fees through the use of a credit card or other financing, (2) a restructuring of the fee agreement or a change in the objective or plan going forward due to cost considerations, (3) the replenishing of the fee deposit through the use of a credit card, or (4) a termination of representation.
I have recently implemented this procedure.  My staff makes calls at the 45 day mark.  In the past, if that did not do the trick, I would have simply withdrawn.  Now I intend to sit down face to face and work it out.  I'm not looking forward to my first office meeting regarding payment, but I can already tell that I will feel better when it's over.  Either my bill will be paid, or I will have some free time to go to the beach.

Monday, June 10, 2013

The 2nd District Appellate Court Needs a Law Clerk

The IL Appellate Court, 2nd District, seeks a judicial law clerk for Justice Kathryn Zenoff's chambers in Rockford, IL. Applicants should have excellent academic record, superior research, writing, and computer skills. Law review, clerking, practice experience, a plus.

Submit by mail a cover letter, resume (w/ LSAT, GPA, class rank, & bar status), law school transcript, two writing samples, & and three references to Hon. Kathryn Zenoff, 6801 Spring Creek Rd., Ste. 2A, Rockford, IL 61114 AND email to

Sunday, June 9, 2013

Another Great Golf Outing

Several of the Northern Law Blog contributing writers attended the 9th Annual NIU-COL Alumni Golf Outing on Friday, June 7, 2013.  I didn't take too many photos (I was busy almost winning the "Shortest Drive Award"), but here are some that I did get.  If anyone else has any photos, feel free to post them to the Blog.

It was good to see Law Blog regulars Brian Moore and Dexter Evans, as well as many loyal readers and subscribers out at the course.  I'm already looking forward to next year!

Mike Huseman and Dexter Evans: