Summer is almost here and with that comes a new set of seasonal employment law issues. Top of the list for many employers includes the hiring of interns, dress code compliance and handling time off requests.
1. Hiring Summer Interns
Employers looking to hire interns to work during the summer season or beyond should know that the U.S. Department of Labor (DOL) recently changed the criteria to determine if an internship must be paid. In certain circumstances, internships are considered employment subject to federal minimum wage and overtime rules.
Under the previous “primary beneficiary” test, employers were required to meet all of the six criteria outlined by the DOL for determining whether interns are employees. The new seven-factor test is designed to be more flexible and does not require all factors to be met. Rather, employers are asked to determine the extent to which each factor is met. For example, how clear is it that the intern and the employer understand that the internship is unpaid, and that there is no promise of a paid job at the end of the program? The non-monetary benefits of the intern-employer relationship, such as training, are also taken into consideration.
Though no single factor is deemed determinative, a review of the whole internship program is important to ensure that an intern is not considered an employee under Fair Labor Standards Act (FLSA) rules, and to avoid any liabilities for misclassification claims.
Companies also should be aware of state laws that may impact internship programs. For example, California, the District of Columbia, Illinois, Maryland, and New York consider interns to be employees and offer some protections under various state anti-discrimination and/or sexual harassment statutes.
All employers should be clear about the scope of their internship opportunities, including expectations for the relationship, anticipated duties and hours, compensation, if any, and whether an intern will become entitled to a paid job at the end of the program.
2. Summer Dress Codes
With warmer temperatures come more casual clothing options. As a result, the line between professional and casual dress in the workplace is sometimes blurred. The following are some tips to follow when crafting a new or revisiting an existing dress code policy this summer:
If the dress code is new or being revised, the policy should be clearly communicated. Sending a reminder out to employees may be helpful in some workplaces. In all cases, the policy should be unambiguous. List examples to make sure there is no confusion about what is considered appropriate and what is not and explain the reasoning behind the policy and the consequences for any violations.
To serve their business or customer needs, companies may apply dress code policies to all employees or to specific departments.
Make sure the dress code does not have an adverse impact on any religious groups, women, people of color, or people with disabilities. Company policies may not violate state or federal anti-discrimination laws.If the policy is likely to have a disparate impact on one or more of these groups, employers should be prepared to show a legitimate business reason for the policy.Also, reasonable accommodations should be provided for employees who request one based on their protected status. For example, reasonable modifications may be required for ethnic, religious, or disability reasons.
Finally, failure to consistently enforce a neutral dress code policy or provide reasonable accommodations can expose a company to potential claims. As always, dress codes and any discipline for code violations should be implemented equitably to avoid claims of discrimination.
3. Time Off Requests
Summertime tends to prompt an influx of requests for time off. Now is a good time to review policies governing time off, as well as the implementation of those policies to ensure consistency. Written time off policies should explicitly inform employees of the process for handling time off requests and help employers to consistently apply the rules.
An ideal policy will explain how much time off employees receive and how that time accrues. It also will include reasonable restrictions on how time off is administered such as requiring advance approval from management, and how to handle scheduling so that business needs and staffing levels are in sync.
Most importantly, time off policies and procedures must not be discriminatory. For instance, if a policy denies time off or permits discipline for an employee who needs to be out of the office on a protected medical leave, the policy could be seen as discriminating against employees with disabilities. Companies should train their managers on how to administer time off requests in a non-discriminatory manner. Employers generally have the right to manage vacation requests, however protected leave available to employees under federal, state and/or local laws adds another layer of complexity that employers should consider when reviewing time off requests.
To minimize employment issues this summer and all year around: plan ahead, know the relevant employment laws, and train managers and supervisors to apply HR best practices consistently throughout the organization.