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Time to assess summer worker programs

As back to school time looms, employers may be assessing their experiences with summer workers — those brought in for seasonal work as well as college interns learning the ropes in their chosen profession. Now is a good time to examine which employer practices are sound and which ones may be iffy.

Employers need to keep a number of legal issues in mind. Wage payment, employee classification, workplace harassment and discrimination, as well as other matters are no less important for short-term workers than they are for regular employees.

Just because summer workers are often young and are in the workplace for only a matter of weeks, employers can’t let their guard down. Mistakes — serious and costly mistakes — can be made, so prevention should be top of mind.

Evelyn Gentry, an attorney with Faegre Baker Daniels in Indianapolis, reminds employers of the importance of training seasonal workers on employment policies. Employers should make sure their summer employees are aware of the organization’s equal employment opportunity policies, including antidiscrimination and antiharassment policies as well as the internal procedure for reporting suspected discrimination or harassment.

“Employers should make clear that all forms of prohibited discrimination and harassment will be taken seriously, whether committed by a supervisor against a summer worker or whether committed by a summer worker against another employee, a client, or customers,” Gentry says. “A supervisor’s harassment of an employee, as opposed to a nonsupervisor’s harassment, can subject the employer to liability.”

Gentry also reminds employers that if a seasonal worker is harassing a coworker, the employer must not overlook it just because the wrongdoer will soon be gone.

Failing to properly supervise short-term workers — especially when they’re underage — is another common employer mistake. “Due to immaturity or a failure to understand risk, teens and young adults may need a greater level of supervision than older workers,” Gentry says.

Additionally, failing to adequately conduct preemployment screening can land an employer in hot water. Employers may be liable for negligent hiring or negligent retention if they should have known of a worker’s history of violence, theft or other problems, Gentry says. The worker’s short-term status doesn’t get the employer off the hook.

In the case of young seasonal help, employers also need to be aware of state child labor laws. Laws vary from state to state, Gentry says, but generally child labor laws may require the employer to:

  • Obtain and keep on file an employment certificate for the minor;
  • Post conspicuous signs or notices that state, among other things, the maximum number of hours that a minor is permitted to work by law;
  • Restrict the number of hours a minor works, especially on days when schools are in session, including summer school.

Also, the federal Fair Labor Standards Act (FLSA) restricts the type of work minors can do, specifically work that is considered hazardous such as excavating, manufacturing explosives, and operating power-driven equipment, Gentry says.

Employment Practices Self-Audit Workbook

What to know about interns
Summer is a popular season for college students to work in internships, although the fall and spring semesters also see students vying for slots in internship programs. Employers must be careful in structuring an internship program to avoid legal woes.

Both the U.S. Department of Labor (DOL) and the Internal Revenue Service are looking carefully at internships. Joseph C. Pettygrove, an attorney with Faegre Baker Daniels‘ national labor, employment, and benefits team in Indianapolis, conducted a webinar on the topic in April 2011 in which he explained issues employers must decide when working with interns.

The federal Fair Labor Standards Act considers workers as either employees or nonemployees, and interns can fall in either category, Pettygrove says. Interns found to be employees must be paid at least minimum wage for all hours up to 40 per week and overtime for hours in excess of 40 if they’re nonexempt employees. Interns rarely qualify for exempt status, he says.

The DOL uses a six-factor test to determine if an internship can be unpaid, and all six factors must be met. The DOL Wage and Hour Division Fact Sheet 71 outlines the factors:

  • 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;
  • The internship experience is for the benefit of the intern;
  • The intern does not displace regular employees but instead works under close supervision of existing staff;
  • 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;
  • The intern isn’t necessarily entitled to a job at the conclusion of the internship; and
  • The employer and the intern understand that the intern isn’t entitled to wages for the time spent in the internship.

As with a lot of wage-payment issues, Pettygrove says, the DOL has developed what looks like a “crisp, clean test” with its six factors, “but it’s highly fact-specific and the results vary significantly from case to case,” he said during the webinar. If there’s doubt about any of the six factors, employers should offer a paid internship.

Pettygrove advises employers to work with an intern’s school when planning an unpaid internship. He says to develop an internship geared toward broadly applicable skills that students are learning in academic classes. It’s important that the internship not look like a new employee orientation that teaches specifically how the employer wants the job done instead of teaching more generally marketable skills.

Also, it’s a problem if an employer wants to use unpaid interns to cover excess workloads. To pass the six-factor test, “you can’t think of interns as just additional labor to help meet your needs,” Pettygrove said during the program. “They have to be thought of and assigned more as tagalongs who will be shadowing your regular workforce and occasionally even interrupting or slowing down your regular employees because of their learning.”