Author Archives: Leslie Machado

Leslie Machado

About: Leslie Machado

Mr. Machado counsels and advises a diverse range of clients on various areas of law. He is also an experienced litigator, having tried cases to verdict in state and federal courts.

DOL Adopts “Primary Beneficiary” Test for Interns

The U.S. Department of Labor announced Friday that it was abandoning the six-factor test it had previously used for determining whether interns are employees for purposes of the Fair Labor Standards Act, and that it was now adopting the “primary beneficiary” test favored by several U.S. Courts of Appeals. As we discussed recently, the Second Circuit in Wang v. The Hearst Corporation, No. 16‐3302 (2d Cir. Dec. 8, 2017), and the Ninth Circuit in Benjamin v. B&H Education, No. 15-17147 (9th Cir. Dec. 19, 2017), had recently rejected the DOL’s six-factor test in favor of the “primary beneficiary” test, which …

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New Guidance on Interns v. Employees

The test for determining whether unpaid interns at a for-profit employer are employees under the Fair Labor Standards Act, and thus entitled to compensation for services provided, has been the subject of considerable litigation over the past few years. Employers now have recent guidance from two federal appellate courts to use in analyzing their intern programs. In Glatt v. Fox Searchlight Pictures, Inc., Nos. 13‐4478; 13‐4481 (2d Cir. Jan. 25, 2016), the Second Circuit (which covers district courts in Connecticut, New York and Vermont) explained that, in determining whether an individual is an intern or employee, the salient question is …

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Maryland General Assembly Mandates “Light Duty” for Pregnant Disabled Women

Earlier this month, Maryland Governor Martin O’Malley signed legislation providing that, effective October 1, 2013, Maryland employers with 15 or more employees must provide their pregnant employees with light duty or similar accommodations that go beyond the requirements of the Americans with Disabilities Act (“ADA”) and the Pregnancy Discrimination Act (“PDA”). The law was passed in reaction to Young v. United Parcel Service, Inc., where the court held that employers are not required, under either the ADA or PDA, to provide pregnant employees with light duty assignments as long as the employer treats them equally with non-pregnant employees. There, the …

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Fourth Circuit Removes Powerful Weapon From Employer’s Arsenal

As I have previously written, several courts have allowed employers to assert claims against former employees under the Computer Fraud & Abuse Act (CFAA), 18 U.S.C. § 1030.  That statute, which was originally enacted to combat computer hackers, imposes civil and criminal penalties when someone accesses a person’s computer “without authorization” or in excess of “authorized access.”  It is a favorite of employers because it provides federal court jurisdiction and potentially exposes employees to criminal penalties. Courts allowing a CFAA claim against disloyal employees have reasoned that, when a soon-to-be former employee accesses company information for his or her personal …

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