As business picks up or as a way to access future associates,
law firms often hire law clerks to fulfill their short- and
long-term needs. Law clerks can be a way to bring on help instead
of hiring a full-time associate, paralegal or legal assistant. Or,
it could be a way to test-run a future associate. When deciding to
hire a law clerk or summer associate, it is important for law firms
to consider federal and state laws, two of which are the
Massachusetts Minimum Wage Act and the Affordable Care Act (ACA),
when determining whether the time is right to add someone to the
firm.
Unlike Massachusetts, there is no requirement under federal law
for interns to be paid minimum wage while interning for a
for-profit employer so long as the employer meets specific
requirements. The law in Massachusetts is much more stringent.
Pursuant to the Massachusetts Wage Act, it is against public policy
for an employer to employ anyone in an occupation below minimum
wage. The minimum wage was raised to $10 per hour on Jan. 1, 2016
M.G.L. ch. 151, § 1. An occupation is defined as "an industry,
trade or business … whether operated for profit or otherwise, and
any other class of work in which persons are gainfully employed,
but shall not include professional service … or training programs
in charitable, educational or religious institutions, or work by
members of religious orders." M.G.L. ch. 151, § 2. The statute does
not define professional service or training program.
Professional service is defined in the Massachusetts Code of
Regulations as having "the same meaning as set forth in 29 CFR Part
451."454 Mass. Code Regs. 27.03. An employee employed in a
professional capacity includes someone who holds a valid license
entitling him or her to practice law and "employees engaged in
internship or resident programs, whether or not licensed to
practice prior to commencement of the program … if they enter such
internship or resident programs after the earning of the
appropriate degree required for the general practice of their
profession." 29 CFR V(A)(541)(D) § 304.
Training program is not defined in any statute or regulation.
Instead, in an opinion letter, the Massachusetts Department of
Labor Standards adopted the six-factor federal test to determine
whether a training program is not required to compensate interns or
trainees. A program must meet the following six factors to be
considered a "training program:" 1) the training program must be
similar to an educational environment; 2) the training program
benefits the intern; 3) the intern will not be displacing regular
employees, but rather must work under staff supervision; 4) the
intern does not provide an immediate advantage to the employer, and
the intern may hinder the employer's operations; 5) the intern is
not entitled to a job at the conclusion of the program; and 6) both
the employer and intern understand the intern will not be
compensated for his or her time. Department of Labor Standards, Op.
MW-2011-02-05.09.11.
Therefore, a law firm must pay a law clerk or summer associate
minimum wage unless his or her employment fits within an
exception.
A relatively new consideration for law firms is whether they
must now offer law clerks and summer associates health benefits.
The ACA requires employers with 50 or more full-time, or full-time
equivalent, employees to offer affordable health insurance. A
full-time employee is any employee that works, on average, 30 or
more hours per week. A seasonal worker who works fewer than 120
days and independent contractors are not considered full-time
employees.
The ACA relies on the U.S. Department of Labor definition of a
seasonal employee -- a seasonal employee is an employee whose work
is seasonal in nature and whose work generally begins at the same
time each year (i.e., summer associates). The 120-day requirement
is calculated yearly; the 120 days do not have to be
consecutive.
In Massachusetts, a person qualifies as an independent
contractor if he or she meets the following three-part test:
- The individual is free from control and direction in connection
with the performance of the service, both under his contract for
the performance of service and in fact; and
- The service is performed outside the usual course of the
business of the employer; and
- The individual is customarily engaged in an independently
established trade, occupation, profession or business of the same
nature as that involved in the service performed.
The penalties for violating the Minimum Wage Act or the ACA can
be significant. An employee who successfully brings a claim against
his or her employer for violations of the Minimum Wage Act "shall
be awarded treble damages … and shall also be awarded the costs of
the litigation and reasonable attorneys' fees." M.G.L. ch. 149, §
150. For violating the ACA, an employer that employs 50 or more
full-time employees, or full-time equivalent, could be responsible
for $2,000 per person that it employs, excluding the first 30
employees