2024
2023
- Attorney Courtney Presthus to Serve on Stark County Park Board
- Congratulations to ESL Attorneys Selected to the 2024 Edition of "Best Lawyers" and "Ones to Watch"
- Congratulations Attorney Shea Miller
- We have a winner!!
2022
- Lawyer Cerkoney is a Certified Farm Succession Coordinator
- Lawyers featured in Fall 2022 Gavel publication
- Ebeltoft . Sickler . Lawyers summer hours
- Ebeltoft . Sickler . Lawyers has a new associate attorney
- Ebeltoft Sickler's New Partner
- Young Lawyer Showcase
2021
2020
- Ebeltoft . Sickler sponsors CHI St. Alexius Health Dickinson Foundation's Golf Sports Classic
- Ebeltoft . Sickler sponsors Blue Hawk Booster Rendezvous
- Ebeltoft . Sickler sponsors DPS Foundation's Mystery Dinner
2019
- Ebeltoft . Sickler sponsors Empty Bowls Project distributed by the United Way
- Ebeltoft . Sickler sponsors Hill Top Heritage Foundation
- Ebeltoft . Sickler sponsors CHI St. Alexius Health Dickinson Foundation's Charity Ball
- Ebeltoft . Sickler sponsors the TEARS Foundation Rock & Walk for Babies
- Ebeltoft . Sickler sponsors CHI St. Alexius Health Dickinson and Sanford Health Dickinson’s Glow Run 5K
- Ebeltoft . Sickler sponsors 3rd Annual Hoedown for Hospice
- Ebeltoft . Sickler . Lawyers sponsor 6th Annual Players Sports Bar & Grill Scramble
- Ebeltoft . Sickler sponsors Run for Reason
- Ebeltoft . Sickler sponsors Dickinson Fire Department’s Safety Pup Program
- Ebeltoft . Sickler sponsors CHI St. Alexius Health Dickinson Foundation's Golf Sports Classic
- Ebeltoft . Sickler sponsors Raise the Woof's Microchip Event
- Ebeltoft . Sickler sponsors Badlands Big Sticks Summer Baseball League
- Ebeltoft . Sickler sponsors Relay for Life, Stark County Event
- Ebeltoft . Sickler sponsors DDA Inaugural Golf Scramble
- Ebeltoft . Sickler . Lawyers sponsor Imagination Library's Pizza & Pals
- Ebeltoft . Sickler . Lawyers sponsor 8th Annual Blue Hawk Booster Rendezvous
- Ebeltoft . Sickler Lawyers congratulates Attorney Courtney Presthus
- Ebeltoft . Sickler Lawyers sponsor the Dickinson Dream program
- Ebeltoft . Sickler sponsors DPS Foundation's Mystery Dinner
- North Dakota Supreme Court Success
- Ebeltoft . Sickler . Lawyers adds new Lawyer
2018
- Ebeltoft . Sickler sponsors Dickinson State University Department of Fine & Performing Arts.
- Ebeltoft . Sickler supports the Susan G. Komen Foundation
- Ebeltoft . Sickler supports Leadership Dickinson
- Ebeltoft . Sickler sponsors the Empty Bowls Project distributed by the United Way
- Ebeltoft . Sickler sponsors CHI St. Alexius Health Dickinson Foundation's Annual Charity Ball
- Ebeltoft . Sickler sponsors Rock and Walk for Babies
- Ebeltoft . Sickler sponsors the Dickinson Lions Club Summer Benefit Concert, “Tribute to Cold Hard Cash”.
- Ebeltoft . Sickler sponsors 6th Annual Players Sports Bar & Grill Scramble.
- Ebeltoft . Sickler sponsors CHI St. Alexius Health Dickinson and Sanford Health Dickinson’s Glow Run 5K
- Ebeltoft . Sickler sponsors St. Charles Catholic Church’s 5th Annual 5K Color Run
- Ebeltoft . Sickler sponsors 27th Annual CHI St. Alexius Heath Dickinson Foundation Golf Sports Classic
- Ebeltoft . Sickler . Lawyers sponsor First on First
- Ebeltoft . Sickler sponsors Dickinson Fire Department’s Safety Pup Program
- Ebeltoft . Sickler . Lawyers sponsors 5th Annual Fishn' for the Cure
- Ebeltoft . Sickler . Lawyers sponsor the Badlands Bigsticks
- Ebeltoft . Sickler Summer Hours
- Ebeltoft . Sickler . hires Summer Law Clerk
- Ebeltoft . Sickler . Lawyers sponsors the Bakken Paws Bake-Off
- Dickinson Press' "30 Under 30."
- North Dakota Supreme Court Success
- North Dakota Supreme Court Success
- Ebeltoft . Sickler . Lawyers sponsor 7th Annual Blue Hawk Booster Rendezvous
- Support of Dickinson Noon Lions Club Make-A-Wish Benefit
- Ebeltoft . Sickler sponsors DPS Foundation's Mystery Dinner Theater.
2017
- Ebeltoft . Sickler sponsors Dickinson State University’s Department of Fine & Performing Arts
- Ebeltoft . Sickler sponsors CHI St. Alexius Health Charity Ball
- Ebeltoft . Sickler sponsors 2017 Trinity Fall Gala
- Ebeltoft . Sickler . Lawyers sponsors Rock and Walk for Babies
- Ebeltoft . Sickler . Lawyers sponsors Downtown Fall Into Blues Festival
- Ebeltoft . Sickler . Lawyers supports Leadership Dickinson
- Ebeltoft . Sickler . Lawyers sponsors Lions Club Summer Benefit Concert
- Ebeltoft . Sickler Laywers sponsors Ukranian Festival
- Ebeltoft . Sickler . Lawyers sponsors American Cancer Society Relay for Life Stark County event
- Special Counsel Paul Ebeltoft's son's "Here Alone" on Netflix
- Ebeltoft . Sickler . Lawyers sponsors Shawn Stoltz in Lions All-Star Game
- Ebeltoft . Sickler . Lawyers sponsors 26th Annual CHI Golf Sports Classic
- Ebeltoft . Sickler . Lawyers a sponsor for First on First
- Ebeltoft . Sickler . hires summer law clerk
- Ebeltoft . Sickler . Lawyers donates to Belfield Theatre
- Ebeltoft . Sickler . Lawyers sponsors Dickinson Baseball Club
- Ebeltoft . Sickler . Lawyers sponsor of 6th Annual Blue Hawk Booster Rendezvous
- Ebeltoft . Sickler . Lawyers donates to Domestic Violence and Rape Crisis Center event
2016
- Ebeltoft . Sickler . Lawyers sponsors Empty Bowls Project
- Ebeltoft . Sickler . Lawyers sponsors 46th Annual Art Show
- Paul Ebeltoft elected Chairman of the Board of Directors of Prairie Public Broadcasting
- Sponsorship of Dickinson Catholic Schools
- Support of Local Girl Scout’s Project
- Sponsorship of Leadership Dickinson 2016-2017
- Sponsorship of 8th Annual Walk/Run for Diabetes Glow Run
- David Ebeltoft Recognized at Tribeca Film Festival
- Ebeltoft . Sickler Hires Summer Law Clerk
- New Associate
- Olivia Krebs Returns as Summer Law Clerk
- Attorney Presthus receives Theodore Roosevelt Honors Dickinson State University Leadership Program “Bully Pulpit Award”
- Donation to Camp ReCreation
- Dickinson Baseball Club, Inc. Sponsorship
- Support of Dickinson Area Chamber of Commerce 3 on 3 Hoopfest
- Support of Dickinson Noon Lions Club Make-A-Wish Benefit
- Blue Hawk Club Sponsorship
- Support of American Cancer Society Relay For Life
- Dickinson CommUniversity Sponsorship
2015
- Ebeltoft. Sickler obtains successful Montana Supreme Court Opinion
- Ebeltoft . Sickler . Lawyers sponsors Dickinson State University’s Fine and Performing Arts Society
- Sponsorship of Dickinson Catholic Schools
- Sponsorship of Dickinson Lions Club
- Lawyer Paul Ebeltoft has a new grandson
- Lawyer Randall Sickler receives Martindale Hubbell's "AV Preeminent" rating
- Donation to “Celebrate the West” Event
- Ebeltoft Sickler Lawyers Proud to Support Local Youth
- Attorney Grosz Recognized as Great Plains Rising Star
- Courtney Presthus Accepted into Association of Defense Trial Attorneys
- Ebeltoft . Sickler hires summer law clerk
- Ebeltoft . Sickler sponsors 2015 3-on-3 Hoopfest
- Ebeltoft . Sickler sponsor of Dickinson Baseball Club
- Attorney Nick Grant speaks to high school students during Roughrider Education Service Program's Career Expo
- Attorneys Nicholas Grant and Paul Ebeltoft successful in summary judgment
- Defense Research Institute confirms Attorney Courtney Presthus as State Representative for North Dakota
- Ebeltoft . Sickler . Lawyers celebrates 6th Anniversary
- Ebeltoft . Sickler . Lawyers sponsor of Annual Blue Hawk Rendezvous
- Ebeltoft . Sickler . Lawyers sponsors DIckinson Public School Foundation's Mystery Dinner Theater
- Attorney Nicholas Grant apointed Vice-Chair of DRI Trucking Law Committee Special Litigation Group
- Ebeltoft . Sickler . Lawyers included in U.S. News – Best Lawyers® “Best Law Firms” for 2015
- Ebeltoft . Sickler . Lawyers hosting Dickinson’s P.E.O. Chapter AD meeting
Aug 11, 2015
In May I told you to await the Second Circuit Court of Appeals ruling on whether or not your company will need to pay its interns minimum wage and overtime. Wait no more. The ruling is in. Now we just have to figure out what it means.
A quick refresher
The case is Glatt et al. v. Fox Searchlight Pictures Inc. Eric Glatt and other plaintiffs were unpaid interns on the feature film Black Swan. The film, about cutthroat competition among ballerinas for the lead in Swan Lake, did better at the box office than anyone expected. Glatt and the other plaintiffs claimed that Fox Searchlight Pictures Inc. (Fox) worked them 50 hours a week or more doing jobs that otherwise would have been done by paid employees, but for free. Glatt’s duties included obtaining documents for personnel files, picking up paychecks for co-workers, tracking and reconciling purchase orders, drafting cover letters, organizing filing cabinets, making photocopies, and running errands. He should have been paid an hourly wage and overtime, Glatt claimed. That he was not violated United States Department of Labor (DOL) internship rules promulgated the same year (2010) that the film was produced.
Fox Searchlight Picture’s lawyers argued that DOL’s six part test that unpaid internships must meet prohibits interns from performing any productive work at all. This, the lawyers claimed, was “antithetical to a meaningful internship.” They argued instead for the court to adopt a balancing test based upon whether the interns work is more for the benefit of the employer (and would need to be paid) or if the work benefited the intern more (in which event payment is not needed).
What was (and may still be) at stake?
Many thought that the DOL’s rules set the bar too high for employers, making it virtually impossible for companies to structure a compliant unpaid internship program. Unpaid internships were shut down after some large class-action lawsuit payments were made by big companies who ran programs like Fox did. The future of unpaid internships, including the interests of colleges and universities around the country in promoting them, hung on the Second Circuit Court of Appeals ruling.
What the Court said
The Second Circuit ultimately sided with employers. It rejected the Department of Labor’s rigid six factor test and instead created a multi-factored, non-exhaustive set of considerations by which an intern-employer relationship will be judged. The considerations are to help weigh and balance whether the employer or the intern is the “primary beneficiary” of the relationship; if the employer, then payment is to be made; if the intern, then the internship can be unpaid. Among the possible tests are:
1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation.
2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment.
3. The extent to which the internship is tied to the intern’s formal education program.
4. The extent to which the internship accommodates the intern’s academic commitments.
5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees.
7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.
What it means
Commentators have praised the decision, saying that employers will find it easier to offer unpaid internships. These same pundits claim that interns will be able to enhance their education but not be exploited. Yet I am not sure.
The Court held that no single one its seven enumerated considerations are dispositive. The Court said that an unstated range and number of other considerations can be taken into account in “weighing and balancing all of the circumstances.” This is just the kind of “rule” in which employers are unlikely to place much stock. Adding to the uncertainty, an appeal may yet be taken, albeit delayed in view of other procedural rulings by the Court that are not relevant here. And, not surprisingly, intern groups have vowed to fight on.
The website www.internlaborrights.com reported that it “believes that the Second Circuit’s seven new criteria are arbitrary and fabricated to shift the burden of evidence in cases of exploitative internships away from employers and onto the backs of student workers. As [Suffolk University law professor David] Yamada stated in his recent blogpost on the ruling, ‘In practical terms, the decision invites private employers and universities to collaborate on schemes that (1) create unpaid internships; and (2) charge students tuition for the “privilege” of doing unpaid work.’ *** We would like to remind everyone that “Black Swan” earned over 300 million dollars while Glatt and Footman [another Plaintiff] were paid nothing. We continue to stand by them and all unpaid interns as they fight through all legal channels available.”
Rachel Bien, the lawyer who represents Glatt, said she was pleased the court created a “clear rule.” But the clarity she sees is not that unpaid internships will be easier to offer, but that "[m]any of the most abusive internships involving low-level tasks and grunt-type work are plainly illegal under this standard." In short, we can almost be certain that there will be more scrutiny of unpaid internship programs in the courts.
Perhaps the best advice if your company is considering an unpaid internship program is – stay tuned.
Our interest in serving you
My law firm’s goal is to give understandable information and to foster discussion about real-life issues facing human resource professionals. If we are not achieving that goal or if you would like us to address other employment law issues, please email me at pebeltoft@ndlaw.com We promise to take your comments and ideas to heart.
Disclaimers
(Otherwise known as “the fine print”)
I make a serious effort to be accurate in my writings. These articles are not exhaustive treatises, though, so do not consider them complete or authoritative. Providing this information to you does not create an attorney-client relationship with my firm or me. Do not act upon the contents of this or of any article on our homepage or consider it a replacement for professional advice.
Reprinted with permission from an article submitted for publication in the August, 2015 Southwest Area Human Resource Association newsletter.
The unpaid intern trap Part II
By: Paul EbeltoftIn May I told you to await the Second Circuit Court of Appeals ruling on whether or not your company will need to pay its interns minimum wage and overtime. Wait no more. The ruling is in. Now we just have to figure out what it means.
A quick refresher
The case is Glatt et al. v. Fox Searchlight Pictures Inc. Eric Glatt and other plaintiffs were unpaid interns on the feature film Black Swan. The film, about cutthroat competition among ballerinas for the lead in Swan Lake, did better at the box office than anyone expected. Glatt and the other plaintiffs claimed that Fox Searchlight Pictures Inc. (Fox) worked them 50 hours a week or more doing jobs that otherwise would have been done by paid employees, but for free. Glatt’s duties included obtaining documents for personnel files, picking up paychecks for co-workers, tracking and reconciling purchase orders, drafting cover letters, organizing filing cabinets, making photocopies, and running errands. He should have been paid an hourly wage and overtime, Glatt claimed. That he was not violated United States Department of Labor (DOL) internship rules promulgated the same year (2010) that the film was produced.
Fox Searchlight Picture’s lawyers argued that DOL’s six part test that unpaid internships must meet prohibits interns from performing any productive work at all. This, the lawyers claimed, was “antithetical to a meaningful internship.” They argued instead for the court to adopt a balancing test based upon whether the interns work is more for the benefit of the employer (and would need to be paid) or if the work benefited the intern more (in which event payment is not needed).
What was (and may still be) at stake?
Many thought that the DOL’s rules set the bar too high for employers, making it virtually impossible for companies to structure a compliant unpaid internship program. Unpaid internships were shut down after some large class-action lawsuit payments were made by big companies who ran programs like Fox did. The future of unpaid internships, including the interests of colleges and universities around the country in promoting them, hung on the Second Circuit Court of Appeals ruling.
What the Court said
The Second Circuit ultimately sided with employers. It rejected the Department of Labor’s rigid six factor test and instead created a multi-factored, non-exhaustive set of considerations by which an intern-employer relationship will be judged. The considerations are to help weigh and balance whether the employer or the intern is the “primary beneficiary” of the relationship; if the employer, then payment is to be made; if the intern, then the internship can be unpaid. Among the possible tests are:
1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation.
2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment.
3. The extent to which the internship is tied to the intern’s formal education program.
4. The extent to which the internship accommodates the intern’s academic commitments.
5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees.
7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.
What it means
Commentators have praised the decision, saying that employers will find it easier to offer unpaid internships. These same pundits claim that interns will be able to enhance their education but not be exploited. Yet I am not sure.
The Court held that no single one its seven enumerated considerations are dispositive. The Court said that an unstated range and number of other considerations can be taken into account in “weighing and balancing all of the circumstances.” This is just the kind of “rule” in which employers are unlikely to place much stock. Adding to the uncertainty, an appeal may yet be taken, albeit delayed in view of other procedural rulings by the Court that are not relevant here. And, not surprisingly, intern groups have vowed to fight on.
The website www.internlaborrights.com reported that it “believes that the Second Circuit’s seven new criteria are arbitrary and fabricated to shift the burden of evidence in cases of exploitative internships away from employers and onto the backs of student workers. As [Suffolk University law professor David] Yamada stated in his recent blogpost on the ruling, ‘In practical terms, the decision invites private employers and universities to collaborate on schemes that (1) create unpaid internships; and (2) charge students tuition for the “privilege” of doing unpaid work.’ *** We would like to remind everyone that “Black Swan” earned over 300 million dollars while Glatt and Footman [another Plaintiff] were paid nothing. We continue to stand by them and all unpaid interns as they fight through all legal channels available.”
Rachel Bien, the lawyer who represents Glatt, said she was pleased the court created a “clear rule.” But the clarity she sees is not that unpaid internships will be easier to offer, but that "[m]any of the most abusive internships involving low-level tasks and grunt-type work are plainly illegal under this standard." In short, we can almost be certain that there will be more scrutiny of unpaid internship programs in the courts.
Perhaps the best advice if your company is considering an unpaid internship program is – stay tuned.
Our interest in serving you
My law firm’s goal is to give understandable information and to foster discussion about real-life issues facing human resource professionals. If we are not achieving that goal or if you would like us to address other employment law issues, please email me at pebeltoft@ndlaw.com We promise to take your comments and ideas to heart.
Disclaimers
(Otherwise known as “the fine print”)
I make a serious effort to be accurate in my writings. These articles are not exhaustive treatises, though, so do not consider them complete or authoritative. Providing this information to you does not create an attorney-client relationship with my firm or me. Do not act upon the contents of this or of any article on our homepage or consider it a replacement for professional advice.
Reprinted with permission from an article submitted for publication in the August, 2015 Southwest Area Human Resource Association newsletter.