- - Monday, September 28, 2015

How would you like a free butler, maid, chef and chauffeur? Try that and the Department of Labor will sue you for violating the minimum wage, overtime and record-keeping requirements of the Fair Labor Standards Act — unless you are Justice Sonia Sotomayor. That’s right. Since 2010, she has hired unpaid interns as her servants. No other justice does this.

Justice Sotomayor’s job description, posted on a Latino Facebook page and other places, tells us that applicants do not need a law degree, but “a driver’s license is a must” because the intern’s duties will include running “errands outside of the Courthouse.” The intern will prepare “lunch and snacks for the Justice,” photocopy, and answer the phone. The intern is responsible for his own living arrangements and transportation. She pays them nothing.

Whether Sonia Sotomayor is abusing her position as a justice by leveraging that appointment to secure free butlers is an important question of judicial ethics. A more prosaic question is whether she is violating U.S. labor laws, including the requirements of a minimum wage. It turns out that the answer is yes.

First, her maid, butler and chauffeur are not employees of the Supreme Court; they are her personal employees. No federal statute authorizes Justice Sotomayor to hires personal aides. Yet, even if one would consider her maid or butler to be an employee of the Supreme Court, the Fair Labor Standards Act still applies. One section expressly includes all U.S. government employees while another section excludes “volunteers” of state agencies. There is no exemption for federal agencies.

The Labor Department does allow for some situations when an employer can employ unpaid interns, but none applies here. First, it is irrelevant under the labor laws that the interns initially agreed to work for nothing.

The recent decision involved unpaid interns who worked on the film, “Black Swan.” In Glatt v. Fox Searchlight Pictures, Inc. (2015), the federal appellate court recognized that unpaid interns could learn valuable job skills. Internships “are widely supported by educators and by employers looking to hire well-trained recent graduates.” On the other hand, “employers can also exploit unpaid interns by using their free labor without providing them with an appreciable benefit in education or experience.”

Glatt offered no sharp-line litmus test but focused on various factors. Does the internship provide training “similar to that which would be given in an educational environment,” including “hands-on training provided by educational institutions”? It would be passing strange if running errands and photocopying constitute educational training. It is relevant if the internship “is tied to the intern’s formal education program by integrated coursework,” but it’s hard to integrate coursework with serving “lunch and snacks for the Justice.” Another factor is whether the internship offers “significant educational benefits to the intern.” Even if the intern wanted to be a butler, it’s still an eyebrow-raiser to call that a “significant educational benefit.”

Glatt involved a for-profit company. The Department of Labor has somewhat looser rules for non-for-profit organizations, but she fails that test as well. By no stretch of the imagination is Justice Sotomayor a “charitable, religious, or educational organization” under Section 503(c)(3) of the Internal Revenue Code. She’s not even an organization; she’s human being. Moreover, the charity must not operate for the benefit of private interests. When Justice Sotomayor’s intern is preparing her snacks, the intern is doing that for her benefit, not for any “charity.”

Even for nonprofits, the employer must derive no immediate benefit from the intern. Justice Sotomayor is deriving immediate benefit when her interns run her errands. Such “volunteers” are employees (Tony & Susan Alamo Foundation v. Secretary of Labor, 1985). The nonprofit should train interns, not exploit them.

In Archie v. Grand Cent. Partnership, Inc. (1998), a well-known judge required nonprofits to pay minimum wage to formerly homeless who performed clerical and food service. Despite “the defendants’ intent, they did not structure a training program as that concept is understood in case law and regulatory interpretations but instead structured a program that required the plaintiffs to do work that had a direct economic benefit for the defendants. Therefore, the plaintiffs were employees, not trainees, and should have been paid minimum wages for their work.”

That judge — Sonia Sotomayor.

How to explain the different results? Perhaps, where you sit depends on where you stand. As a mere trial judge, she could not get a free butler, but as a justice, she can.

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence at Chapman University Dale E. Fowler School of Law.

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