An Administrator's Guide to California Private School Law

Chapter 6 – Wage And Hour Laws

However, a person who provides advice to his or her employer or an attorney who provides legal advice in the course of practicing law is exempted from such liability. 493 Additionally, if a school has misclassified a worker as an independent contractor, the school may not have provided that worker with all of the compensation and benefits he/she would have been entitled to if he/she had been properly classified as an employee. For example, a school may need to provide the following compensation, benefits, and entitlements to employees that would not otherwise be provided to an independent contractor:  Wages that meet federal and California minimum wage and overtime requirements.  Workers’ Compensation benefits.  Unemployment Insurance.

 An offer of minimum essential health coverage if the school is an Applicable Large Employer and the employee is full-time under the Affordable Care Act.  Anti-discrimination and anti-harassment protections.  Job-protected leaves.

5. T RAINEES A ND I NTERNS It is critical to distinguish between trainees/unpaid interns and employees who receive training in the course of their work. True “trainees/interns” are not employees and are, therefore, not covered by the state wage laws. However, employees who simply receive training in the course of their jobs are not considered “trainees/interns” and are covered by wage laws. The federal and state criteria for true “trainee/intern” status differ. In 2018, the U.S. Department of Labor endorsed the new “primary beneficiary” test for assessing whether interns qualify as employees under the federal Fair Labor Standards Act. 494 Under the “primary beneficiary” standard, the economic reality of the intern-employer relationship is examined to determine which party is the “primary beneficiary” of the relationship. Courts will assess the following seven factors under the “primary beneficiary” test: 1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa. 2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions. 3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 150