A New Era: The Rule of Law in the Trump Administration

Well, here we are, January 20, 2017, and Donald J. Trump has been sworn in as this nation’s 45th president, though he achieved that position by losing the popular vote by the widest margin of any winning candidate in recent history (2.9 million more people voted for Democratic candidate Hillary Clinton), and he arrives at his new position with the lowest approval rating of any president in recent history.

As numerous others before me have written, President Trump’s campaign was not traditional in any number of ways, and I expect that his presidency will follow that trend. For some, that’s been the whole point. For others, that’s a less-than-inspiring harbinger. I wrote this summer about my concern about the candidate’s rhetoric, proposed policies, and the rule of law.

Though he has since backed off some of his campaign promises (for example, about having a special prosecutor investigate rival Clinton for her use of a private email server—a favorite chant at his rallies was “Lock her up!”), nothing since that time has changed my view. I continue to believe that the president won’t be appreciably different from the candidate.

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That Extra Incentive

Most of us are familiar with wellness programs—programs sponsored by our employer or health plan that try to incentivize us to eat healthier, sleep well, and get more exercise.  If you’re anything like me, it helps to have that extra push or incentive, especially around the holidays when sweets abound, to stay on track—or at least, to not stray too far from health goals. Most of these programs have the added advantage of lowering health care costs, both by providing financial incentives to reduce immediate costs to the individual employees and by boosting the overall health of the employees as a whole, which could reduce future health care costs.   However, extensive technical regulations and recent litigation by the AARP make implementing health and wellness programs increasingly tricky for employers.

Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”) and the regulations promulgated by the U.S. Equal Employment Opportunity Commission (the “EEOC”) thereunder, generally prohibit “an employer [from] request[ing], require[ing], or purchas[ing] genetic information [which includes an individual’s family medical history] with respect to an employee or a family member of the employee.”  42 U.S.C. § 2000ff–1(b). However, there is an exception for wellness programs, as long as employers jump through a set of hoops. 29 CFR § 1635.8(b)(2).  While not without its own problems and excesses, the exception in the EEOC regulations at least allows employers to provide incentives to those employees willing to participate in employer-sponsored wellness programs.

The AARP doesn’t like this whole “incentive” idea to begin with. It recently filed a lawsuit against the EEOC in an attempt to vacate the regulations entirely.  AARP v. U.S. Equal Employment Opportunity Commission, No. 1:16-cv-02113 (D. D.C. 2016) (hereafter the “AARP Complaint”).  This actually might not be a bad idea, except for the fact that the AARP thinks that the regulations do not have enough hoops.  In fact, the AARP would prefer that the regulations abolish any permission for any incentives or penalties to induce participation in employer-sponsored wellness programs. The AARP alleges in its complaint that all employer incentives or penalties to induce participation in employer-sponsored wellness programs violate Title I of the ADA and Title II of GINA.  AARP Complaint at 3. 

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Revisiting the Treatment of Unpaid Internships Under the Fair Labor Standards Act

The extent to which the Fair Labor Standards Act (FLSA) applies to internships and other similar training programs was one of the cutting edge legal issues argued during last spring’s Jenkins Honors Moot Court Competition.  In the months since the Jenkins Competition concluded, both the Second Circuit and the Eleventh Circuit have issued rulings that clarify the legal issues addressed in the Jenkins Competition.  The treatment of interns under the Fair Labor Standards Act is once again making news.

The fictitious respondent in the Jenkins Competition was a law student who participated in an unpaid internship at a large, for-profit law firm.  As part of this program, the student primarily worked on pro bono matters under the supervision of a senior attorney.  The student was also able to participate in a mock trial and attend weekly training lunches.  However, the student also volunteered to work on a number of projects that were not attached to any pro bono cases or training.  They were more of an administrative or secretarial nature.  After an unceremonious dismissal from the program (which was the basis for another claim in the case), the law student brought a suit against the firm, claiming that she was owed compensation for the work she did under her summer internship program because she qualified as an employee under the FLSA.  The law firm, as one would expect, challenged this assertion, claiming that the student fell under the “trainee” exception carved out by the Supreme Court in Walling v. Portland Terminal Co. (1947).

The Court in Walling clearly meant to provide an opportunity for individuals to be trained without pay by a for-profit business in an industry the individual hoped to enter later.  In its ruling, the Court ruled that the FLSA’s definition of an employee as someone who is “suffer[ed] or permit[ed] to work” was “obviously not intended to stamp all [working] persons as employees.”  The Court saw the benefit of internship programs for both those seeking to be trained as well as the businesses seeking to develop their future workforce; classifying all such individuals as employees under the FLSA, and thus requiring payment, would limit training opportunities and hurt both groups.  The problem with the Court’s ruling in Walling is that it did not establish a clear test for determining whether an individual is an intern or whether she is an employee covered by the protections in the FLSA.

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