NEW YORK’S NEW SKILLS COMPETENCY REQUIREMENT NY Rules of the Court of Appeals for the Admission of Attorneys and Counselors at Law § Skills Competency Requirement for Admission

All applicants for admission to the bar in New York must demonstrate that they possess “the skills and values necessary to provide effective, ethical and responsible legal services in this State.” New requirement can be satisfied by completing one of five pathways: (1) Law School Certification of Competence in Skills and Professional Values (2) Law School Certification of Credit Acquisition (3) Pro Bono Scholars Program (4) Apprenticeship (5) Practice in Another Jurisdiction

Effective Dates for NY’s Skills Competency Requirement Applicants who qualify for the bar exam by attending an ABA-approved law school (or based upon foreign legal education alone): the new requirement will first apply to those who begin their legal studies after August 1, Foreign-educated applicants required to complete an LL.M. program at an ABA-approved law school to sit for the bar exam: the new requirements will first apply to those who commence their LL.M. program after August 1, 2018.

CALIFORNIA PROPOSALS: SKILLS & PRO BONO REQUIREMENTS To be discussed at Law School Assembly Meeting March 1, 2016 California Task Force on Admissions Regulation Reform (TFARR) Pending 15-hour Skills Proposal: Applicants for admission to have taken at least 15 units of practice based experiential courses or externship, clerkship or apprenticeship. Variation Under Consideration: Initial implementation of six-unit experiential coursework requirement, with increase over time (would conform to new ABA six credit requirement).

California: Proposal to Add 50-hour Pro Bono Requirement Current Recommendation: Applicants for admission to perform 50 hours of legal services to pro bono or modest means clients. Timing: prior to admission or within one year following admission. New Proposed Variation: Hours must be completed prior to admission and limited to pro bono services. Recently introduced legislation: Senate Bill 1257 Introduced 2/18/16 Would require applicants to the California bar to complete at least 50 hours of supervised pro bono service, in order to supplement the applicant's legal education with practical legal work experience.

FAIR LABOR STANDARDS ACT LITIGATION Second Circuit: Glatt v. Fox Searchlight In its original decision issued in July 2015, the Second Circuit: Rejected the US Dept. of Labor’s six-factor test in determining whether an unpaid intern is an employee. Held that: The appropriate test for unpaid intern status focuses on which party, the employer or the intern, is the primary beneficiary of the relationship; The primary beneficiary inquiry involves two “salient features” – what the intern receives in return for his work and the economic reality that exists between the intern and the employer; and The primary beneficiary determination involves seven, non-exhaustive, non- dispositive considerations.

Amended Opinion January 2016 After rehearing, the 2d Circuit amended its opinion as follows: Added as a “salient feature” to the primary beneficiary analysis the fact that interns enter the relationship expecting an educational or vocational component, generally not present in an employment relationship. Confirmed that the intern analysis is context-specific, focusing on the internship program as a whole, rather than an individualized analysis of each intern’s experience. Confirmed that the touchstone of the primary beneficiary analysis is economic reality. Limited its decision to internships, not training programs in other contexts.

Second Circuit’s non-exhaustive set of considerations for determining the status of unpaid interns 1. The extent to which the intern and employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests the intern is an employee—and vice versa. 2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions. 3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.

Unpaid Internships, continued 4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar. 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 while providing significant educational benefits to the intern. 7. The extent to which the intern and employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.