Threatening Wildcat Strikers with Prison

Spain reopened its airspace Saturday after it was shut down due to a strike by air traffic controllers, the country's airport authority said. The nation's AENA airport authority said airspace was reopened after the majority of striking air traffic controllers returned to work Saturday afternoon and that conditions had returned to "normal." A spokeswoman for the authority said that there was an adequate number of controllers at Madrid's airport Saturday afternoon to handle 30 takeoffs and landings per hour, about a third the usual traffic.

Earlier Saturday, the Spanish government declared a state of alert allowing authorities to prosecute air traffic controllers who refuse to work, officials said, after the workers declared a surprise strike Friday during one of the nation's busiest holiday weekends. The declaration, published in the government's official bulletin, decrees that air traffic controllers who do not report to work could be charged with the crime of disobedience and face prison time, Deputy Prime Minister Alfredo Perez Rubalcaba told reporters. Spain's constitution says such a state of alert can last for as long as 15 days, he said. The declaration comes after a surprise strike from air traffic controllers paralyzed the nation's airports during a busy travel weekend.

AENA, the airport authority, recommended passengers not go to the airport and instead get in touch with their airlines. Iberia, Spanair, KLM, Air France, easyJet and Ryanair canceled all flights to and from Spain at least through Sunday morning, and it was unclear how the announcement of reopened airspace would affect those plans. Ryanair and easyJet said their cancellations also applied to flights to Portugal. All flights from Paris into Spain were canceled Saturday, the Paris airport authority said. Some passengers at the Madrid airport were leaving to board buses for domestic locations, trips that could take several hours. Authorities also added extra trains and private bus companies added seats to try to alleviate the problem.

Air traffic controllers went on strike Friday, stranding tens of thousands of travelers and prompting the Spanish government to bring in the military to control the air space. Saturday's declaration of a state of alert mobilizes the air traffic controllers as if in a military situation, a spokeswoman for the deputy prime minister said. Military officers at the control towers will tell the controllers that they have been mobilized, and if they decline to work, they can face charges of disobedience that carry the possibility of jail time.

Many of the stranded passengers described being stuck on planes on airport tarmacs. They included families with young children trying to set off on a vacation over the long holiday that continues in Spain through next Wednesday. Auditor Juan Infante said the strike left him stuck in the Madrid airport Saturday morning when he should be on a business trip to Abu Dhabi, United Arab Emirates. He said he was angry with air traffic controllers for taking advantage of a busy travel weekend to make a point. "They waited for these holidays that we have in Spain to get the strike going. They planned all of this," he said. CNN affiliate CNN+ reported that military officers had moved to take control at towers at 10 airports before midnight. There are about 47 airports in Spain. The months-long dispute between the government and the air traffic controllers over conditions and pay reached a climax around 5 p.m. Friday when controllers at airports in Madrid and Spain's Balearic Islands in the Mediterranean walked off en masse. Just a few remained to guide some remaining planes in the air toward safe landings, officials said.

The wildcat strike soon spread to most airports across the nation, affecting hundreds of flights. AENA estimated as many as 250,000 people might be affected, including those at airports and those waiting to go on flights that would be delayed or canceled. Earlier Friday, the prime minister's Cabinet approved a measure regulating the controllers' shifts and work conditions. The new rules also allowed the government to put the military in control of air space in case of a wildcat air controller strike. The government apologized for the inconvenience to travelers in repeated statements and added extra trains from the state-run railway, but not enough to handle everyone stranded at airports. AENA President Juan Ignacio Lema apologized to Spaniards for the disruptions, calling the strike an "irresponsible decision" that has "grave consequences" across the country. He called on controllers "to immediately return to work and stop holding Spaniards as hostages." Spain is undergoing austerity reforms in order to avoid a bail-out package. Looking for way to cut costs, the leftist government of Jose Luis Rodriguez Zapatero is finding itself in the position of fighting against the air traffic control unions who oppose some of these measures, including one to allow private capital for the first time to take minority stake in airport management starting at Madrid and Barcelona airports. Friday's decree sought to tighten control over controllers work conditions and schedules. The controllers are seen as well-paid, with great flexibility in taking time off.

(CNN)

Internship Programs Under The Fair Labor Standards Act

A few days ago we published an opinion about unpaid internships. The present post shows US Department of Labor's non-official point of view concerning “for-profit” private sector employers.

Background

The Fair Labor Standards Act (FLSA) defines the term “employ” very broadly as including to “suffer or permit to work.”  Covered and non-exempt individuals who are “suffered or permitted” to work must be compensated under the law for the services they perform for an employer.  Internships in the “for-profit” private sector will most often be viewed as employment, unless the test described below relating to trainees is met.  Interns in the “for-profit” private sector who qualify as employees rather than trainees typically must be paid at least the minimum wage and overtime compensation for hours worked over forty in a workweek.

The Test For Unpaid Interns

There are some circumstances under which individuals who participate in “for-profit” private sector internships or training programs may do so without compensation.  The Supreme Court has held that the term "suffer or permit to work" cannot be interpreted so as to make a person whose work serves only his or her own interest an employee of another who provides aid or instruction.  This may apply to interns who receive training for their own educational benefit if the training meets certain criteria.  The determination of whether an internship or training program meets this exclusion depends upon all of the facts and circumstances of each such program.

The following six criteria must be applied when making this determination:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If all of the factors listed above are met, an employment relationship does not exist under the FLSA, and the Act’s minimum wage and overtime provisions do not apply to the intern.  This exclusion from the definition of employment is necessarily quite narrow because the FLSA’s definition of “employ” is very broad.  Some of the most commonly discussed factors for “for-profit” private sector internship programs are considered below.

Similar To An Education Environment And The Primary Beneficiary Of The Activity

In general, the more an internship program is structured around a classroom or academic experience as opposed to the employer’s actual operations, the more likely the internship will be viewed as an extension of the individual’s educational experience (this often occurs where a college or university exercises oversight over the internship program and provides educational credit).  The more the internship provides the individual with skills that can be used in multiple employment settings, as opposed to skills particular to one employer’s operation, the more likely the intern would be viewed as receiving training.  Under these circumstances the intern does not perform the routine work of the business on a regular and recurring basis, and the business is not dependent upon the work of the intern.  On the other hand, if the interns are engaged in the operations of the employer or are performing productive work (for example, filing, performing other clerical work, or assisting customers), then the fact that they may be receiving some benefits in the form of a new skill or improved work habits will not exclude them from the FLSA’s minimum wage and overtime requirements because the employer benefits from the interns’ work.

Displacement And Supervision Issues

If an employer uses interns as substitutes for regular workers or to augment its existing workforce during specific time periods, these interns should be paid at least the minimum wage and overtime compensation for hours worked over forty in a workweek.  If the employer would have hired additional employees or required existing staff to work additional hours had the interns not performed the work, then the interns will be viewed as employees and entitled compensation under the FLSA.  Conversely, if the employer is providing job shadowing opportunities that allow an intern to learn certain functions under the close and constant supervision of regular employees, but the intern performs no or minimal work, the activity is more likely to be viewed as a bona fide education experience.  On the other hand, if the intern receives the same level of supervision as the employer’s regular workforce, this would suggest an employment relationship, rather than training.

Job Entitlement

The internship should be of a fixed duration, established prior to the outset of the internship.  Further, unpaid internships generally should not be used by the employer as a trial period for individuals seeking employment at the conclusion of the internship period.  If an intern is placed with the employer for a trial period with the expectation that he or she will then be hired on a permanent basis, that individual generally would be considered an employee under the FLSA.

McDonald's Ordered to Pay for Making Former Employee Obesed

The McDonald's fast-food empire nets around $22 billion a year by serving its less-than healthy entrees to millions of patrons around the world -- but now, in a twist of irony, they'll be paying a pretty penny to one man who was forced by the company to eat the stuff. A former restaurant manager in Porto Alegre, Brazil was recently awarded over $17,500 dollars after he gained 65 pounds performing mandatory quality-control tests every day for 12 years. Evidently, he's not lovin' it -- his portly new figure, that is.

According to Folha de Sao Paulo, when the unnamed former McDonald's manager began working for the company at age 18, he weighed in at a healthy 154 pounds. Twelve years later, after being forced to eat samples of food every day to ensure quality standards, he tips the scales at around 230 pounds.
While the plaintiff was employed at McDonald's, one of his regular duties required him to eat "too much salt, sugar, and fat," which caused him to develop "high cholesterol, obesity, and muscle weakness." Moreover, employees on duty were not provided with healthier meal options, lest they acknowledge that regularly consuming the food they sell indeed makes people fat.
In siding with the complainant's case, the judges ordered the fast-food giant to pay the former employee $17,500 in damages, and help cover the medical expenses required for the "full restoration of the health of the claimant."
McDonald's has the option to appeal the ruling, though I suspect they'd prefer this unflattering indictment of the food they serve fade away quietly. For those of us who have long known of the dangers from eating too much fast-food, with its often unseemly production methods and strangely invincible qualities, the ruling has far-reaching implications.

(Stephen Messenger)

Goldman Sachs Hit by Lurid Allegations of Sex Discrimination

The Wall Street bank Goldman Sachs has been hit with a sexual discrimination lawsuit from three former female employees who claim the firm has a testosterone-driven culture of press-up contests on the trading floor, male-dominated golf outings and scantily clad escorts at an office Christmas party.

Filed in New York's federal court, the suit alleges that Goldman's decentralised structure gives broad discretion to managers in assigning pay, responsibility and advancement to employees.

"Goldman Sachs gives its managers, the overwhelming majority of whom are men, unchecked discretion to assign responsibilities, accounts and projects to their subordinates," says the complaint.

"The end result is that managers, whether based on conscious or unexamined bias, most often assign the most lucrative and promising opportunities, and 'seats', to men."

The plaintiffs are Cristina Chen-Oster, a former vice-president in bond sales who worked for Goldman for eight years until 2005; Lisa Parisi, who was in asset management from 2001 to 2008; and Shanna Orlich, an analyst from 2007 to 2008 who alleges she was denied opportunities to become a trader.

Their law firm, an aggressive specialist in class actions, which is also suing BP over its oil spill and Toyota over sticking accelerators, has set up a Goldman-targeted website and is urging other former employees to come forward.

The suit points out that the representation of women gets worse higher up the ranks at Goldman – 29% of its vice-presidents in 2009 were female but women made up only 17% of managing directors, 14% of partners and just four members of a 30-person top management committee.

The latest legal skirmish comes at an awkward time for Goldman, which recently paid $550m (£352m) to settle fraud charges brought by the securities and exchange commission. The bank is the subject of a congressional investigation over alleged unethical conduct in mis-marketing mortgage securities in the run-up to the credit crunch and is struggling to improve its public image.

Allegations in the lawsuit centre on Goldman's "black box" compensation structure, in which employees are given little explanation for variances in their pay, and the plaintiffs describe fierce competition for intangible benefits such as prime seating positions in trading rooms.

"Women at Goldman Sachs are often asked to take on responsibility for training junior employees but then penalised for diverting their attention away from generating revenues for the firm," says the complaint.

The trio make lurid allegations about specific incidents. Chen-Oster, who was paid $800,000 a year but claims her male counterparts earned twice as much, says a male colleague pinned her against a wall, "kissing and groping her" after a Goldman-sponsored staff night out at a topless bar.

Orlich claims she was excluded from golf outings, and recounts displays of "masculinity" including a push-up contest on the trading floor. And she asserts that a 2007 Christmas party for a sales team featured female escorts "wearing short black skirts, strapless tops and Santa hats".

A Goldman spokesman said: "We believe this suit is without merit. People are critical to our business, and we make extraordinary efforts to recruit, develop and retain outstanding women professionals."

Goldman insiders are likely to view the suit as an opportunistic attempt to cash in on the bank's dismal public image. The firm has been targeted by scores of recent legal assaults, including a case brought by the International Brotherhood of Electrical Workers, which complains bankers' bonuses are too high, and a stream of shareholder lawsuits over its alleged mis-selling of mortgage bonds.

Gender discrimination cases against investment banks are nothing new. In London, two former Nomura bankers lost a £3m case against the Japanese firm in April, despite claiming they were taunted by male colleagues who suggested they should be "cleaning floors".

The Equality and Human Rights Commission found last year that women working full-time in the financial sector earn 55% less, on average, than men. And the Treasury select committee has expressed concern that only 9% of board members at FTSE 100 banks are women.

(Andrew Clark, guardian.co.uk)

Are Unpaid Internships Illegal?

Are any big companies willing to condemn publicly the practice of exploiting the vast army of young, unpaid workers we've come to call "interns"? A show of support from business is long overdue and would be an easy public relations win among the nation's young. So why the silence? Britain's business leaders are never normally shy. Could this suggest they have something to hide?

In recent weeks, the angry voices of exploited interns (and their poorer, excluded friends, currently flipping burgers and pulling pints) have grown louder – and their legal position has been strengthened. In July, a report by thinktank the Institute for Public Policy Research and social enterprise Internocracy condemned most unpaid internships as illegal. They asserted that private companies have a legal obligation to treat interns as "workers", since they are rarely just shadowing and almost always have set hours, obligations and duties to perform. This would mean employers must pay them the national minimum wage.

Even the politicians are on board – at last. All five Labour leadership hopefuls have backed pressure group Intern Aware's campaign for a fairer deal for interns. And David Willetts has finally announced: "The exploitation of interns is unacceptable and employment legislation must not be breached." (Hallelujah! What took you so long?)

But there's a problem. Having sought to clarify the law, the report's authors turned on those they say ignore it, saying:

"Employers often mistakenly believe there is a 'grey area' around internships in the national minimum wage legislation that allows them to take on unpaid interns as long as both sides understand it is a voluntary position – this is simply not the case. The law is, in fact, very clear and the problem is a failure of enforcement."

Where is the clear, decisive voice of British business in this discussion? So far, its only statements on this issue have been muddled and unconvincing. Following tip-offs from the users of my website Graduatefog.co.uk, I've investigated seven cases of well-known private sector brands advertising publicly for long-term, full-time interns, paying expenses only.

In the last few months, the contract publishers who produce the in-house magazines for Tesco, Sainsbury's, Superdrug, Morrisons and Weight Watchers have all openly recruited online for interns to work on their clients' publications for up to six months. These publishers were River, Cedar, Seven Squared and Result. Selfridges and Urban Outfitters went a step further, advertising on their own website for junior staff to work at their head office, also paying expenses-only for full-time roles. The latter's vacancy (in the planning department) was for a period of nine months.

I have contacted all these companies. Some were incredulous. The PR manager for Tesco said:

"I worked for many years as a journalist and work experience/internships are an invaluable way of gaining experience in an industry that is very difficult to get a foothold in. I personally worked on this basis for two national newspapers and was extremely grateful for the opportunity … How do you arrive at the conclusion that experience on a magazine, helping someone at the start of their career to build up contacts and a portfolio, is a guilty secret?"

Other replies were unpleasant. Sainsbury's press officer asked me to remove all mention of the story from Twitter, on the grounds that the three-month internship advertised was with Sainsbury's magazine, not Sainsbury's itself ("they are a completely separate commercial entity"). The HR director at their contract publisher, Seven Squared, also said: "Please remove references to Sainsbury's and Seven Squared from your website and blog." (I haven't.) Some replies were curt ("No comment, Tanya," from Urban Outfitters), while the rest were silent.

Superdrug and Weight Watchers both seemed keen to distance themselves from their contract publisher, River. Weight Watchers' PR manager said:

"As you know already Weight Watchers magazine is run by River Publishing, therefore they will be coming back to you with a response in due course as it is an issue relating to them directly that you are questioning."

Likewise, a spokesperson for Superdrug insisted:

"At Superdrug we take the safety and wellbeing of our colleagues very seriously and would like to confirm that we do not employ unpaid interns in any of our stores or at our head office. We work with a number of agencies who may have people on work experience in their office working on their projects. We have asked them to clarify the status of all such individuals."

A few other replies were downright bizarre. River, which publishes Superdrug and Weight Watchers magazines – both of which advertised publicly for unpaid internships of three months – insisted "our current position is that we do not offer unpaid internships". (Eh?) Cedar appeared to contradict their client Tesco's earlier claim that there was nothing wrong with advertising for an unpaid internship on their magazine, insisting it was a mistake. Their managing director said:

"This was an unapproved advertisement which had not gone through normal Cedar internal processes. It was lodged in error … While we do believe in offering internships on occasion as a way of providing valuable work experience and assessing potential future employees, we always respect the minimum wage legislation."

Morrisons' reply was the most confusing. Their spokesperson wrote:

"We have spoken to our publishing company and appreciate that this was intended as a work-experience placement and not advertised as an employed role. We believe the role was offered by our publishing company with the best intention of providing a valuable work-experience opportunity. We will continue to monitor the type of placements offered by our suppliers to ensure they are fair and transparent to all involved."

(Any idea what that means? Me neither.)

Then, another of my users discovered Dragons' Den entrepreneur James Caan publicly advertising for an unpaid intern. However, the pay and work rights helpline explained that his internship is legal, as the role is within the James Caan Foundation, a registered charity (current legislation means interns working for charities and other not-for-profit organisations are not protected by the national minimum wage laws. A loophole allows them to be defined as "voluntary workers", even when doing the job of a "worker", which must be a paid role if found in the private sector).

Nevertheless, I invited Caan to tea to discuss the matter further (along with my friends at Internocracy, Intern Aware and Interns Anonymous), in the hope of recruiting him as the British businesses' champion for this important cause that is currently demotivating our youth and crippling social mobility. I assumed it would be a PR no-brainer for Caan to get behind our nation's young people. But, 10 days later, I am still waiting for a reply.

When will somebody – anybody – from the commercial world stand up and be counted? At present, interns are stuck and desperately need help. The law seems to be on their side, but their position is too weak to allow them to claim their rights (you try demanding pay while trying to impress a newspaper editor or advertising boss). We need Britain's chief executives and entrepreneurs to take the lead on this, set an example and do what's right. Can they show that British business is great enough to treat its young workers fairly?

(Tanya de Grunwald, guardian.co.uk)