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Make sure you’re not singing the ‘Summertime Blues’

by Teresa Shulda

Summer will be here soon, and we’ll be car-dancing to the latest “summer jam.” During my time, the top summer hits were by music greats Madonna and Def Leppard. Whatever your favorite summer tunes are, it’s important to remember that summer brings lots of opportunities for employment law jams—and they aren’t the kind of jams you want to put on repeat play. 

‘Itsy Bitsy Teenie Weenie Yellow Polka Dot Bikini’
Unless you’re a lifeguard, a swimsuit is almost never proper attire in the workplace. But bikinis are usually the least of your worries when it comes to summertime dress code rule breakers. Some employees may think warmer weather justifies tank tops, shorts, and T-shirts in the office. If you’re wondering whether you should crack down on the employee who’s wearing the very nice pair of bejeweled leather (but still) flip-flops, the first step is to check your company’s dress code.

Dress codes should be structured around the necessities of your operation and grounded in legitimate business purposes. For example, flip-flops—no matter how nice—could pose a safety hazard in a workplace with dangerous machinery. And shorts and T-shirts may not fit the corporate business image that your company wants to project with its customer-facing positions.

But probably most important, you must enforce your dress code evenly. You don’t want to zero in and discipline a female employee for wearing short shorts, but then ignore a male employee’s “My Coworkers Are Idiots” T-shirt.

‘Vacation’
The summer typically brings an avalanche of vacation requests, but you still have to run your business. So how can you ensure that your entire workforce doesn’t suddenly come down with the flu on July 3? There’s no magic bullet, but there are several things you can do to try to curb absenteeism during the summer—and all year round.

First, make sure your attendance policy is clear and precise. It should spell out exactly when employees can take excused absences (e.g., vacation, sick leave, or earned time off) and when absences will be considered unexcused and merit discipline. But remember, even if an employee is out of paid leave, he may still qualify for leave under the Family and Medical Leave Act (FMLA) if he is absent for one of its qualifying reasons or leave under the Americans with Disabilities Act (ADA) if he is disabled and leave would be a reasonable accommodation.

Second, consider rewarding employees for good attendance with things like perfect attendance awards or productivity bonuses. You always need to make sure you apply these types of bonus programs in a nondiscriminatory manner and don’t interfere with employees’ rights under the FMLA, workers’ compensation law, and similar laws. But when they’re applied in a legal and legitimate manner, attendance reward programs have a proven track record of decreasing absenteeism in many companies.

‘School’s Out’
Summer’s here, so you can hire all the free labor . . . er, I mean interns you want, right? Not so fast. The Fair Labor Standards Act (FLSA) has strict rules governing internship programs, and you should scrutinize those rules before you decide not to pay your summer interns.

The U.S. Department of Labor (DOL) looks at six factors to determine whether an individual is properly classified as an unpaid intern or should be considered an employee and paid at least the minimum wage:

  1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training that would be given in an educational environment.
  2. The internship experience is for the benefit of the intern.
  3. The intern does not displace regular employees but works under the close supervision of existing staff.
  4. The employer that provides the training derives no immediate advantage from the activities of the intern, and on occasion, its operations may actually be impeded.
  5. The intern is not necessarily entitled to a job at the conclusion of the internship.
  6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

As those criteria make clear, the more the internship revolves around an academic or training program that benefits the intern rather than focusing on the company’s operations and bottom line, the more likely you’ll be safe not paying your summer interns.

‘Cruel Summer’
Summer can certainly bring interesting challenges for HR professionals, but following some simple guidelines might keep your company from suffering heat exhaustion:

  • Make sure your dress code, attendance, and other policies clearly communicate your workplace rules and the consequences for breaking them. Then, apply the rules evenly across the workforce.
  • Always make sure you’re properly classifying individuals as employees—or not. As with independent contractors, misclassifying interns can be a costly mistake.

Teresa Shulda practices employment law with the firm of Foulston Siefkin LLP. She can be reached at tshulda@foulston.com.