Beware the Legal Pitfalls of Managing Unpaid Interns
With many college students and recent graduates trying to start a career, their first step to getting introduced to what their degree can hold for them is working as an intern to learn different roles and to learn how a business operates. The U.S. Department of Labor (DOL) has raised concerns regarding what makes an intern an "employee" or a "trainee". Read this blog post to learn more about the guidelines that pertain to bringing an intern or a "trainee" into the workplace.
A college student or recent graduate is eager to make an impression. So is the early-in-career professional who’s been laid off by another company. You placed them both in an unpaid internship program because you want to give your company a chance to evaluate them as future employees. What could go wrong?
At job sites across the United States, interns not paid or earning less than minimum wage are given all sorts of jobs: answering phones, loading paper in the copiers, managing company social media campaigns.
But, federal guidelines released by the U.S. Department of Labor (DOL) in April 2010 raise concerns that employers might decide to provide fewer internship opportunities. The guidelines, which apply to “for-profit” private-sector employers, define what makes an intern an “employee” as opposed to a “trainee.” If a court or government agency decides that interns’ work qualifies them as employees, the company could face penalties that include owing back pay; taxes not withheld; Social Security; unemployment benefits; interest; attorneys’ fees; plus liquidated damages, defined by federal law as double the unpaid wages.
Six Standards
The DOL’s Wage and Hour Division lists six factors to use in determining whether an intern is a trainee or an employee under the Fair Labor Standards Act (FLSA).
- The training, even though it includes actual operation of the facilities of the employer, is similar to what would be given in a vocational school or other educational institution.
- The training is for the benefit of the trainees.
- The trainees do not displace regular employees, but instead work under their close observation.
- The employer that provides the training derives no immediate advantage from the activities of the trainees, and on occasion the employer’s operations may actually be impeded.
- The trainees are not necessarily entitled to a job at the conclusion of the training period.
- The employer and the trainees understand that the trainees are not entitled to wages for the time spent in training.
If all of the factors listed above are met, then the worker is a “trainee,” an employment relationship does not exist under the FLSA, and the act’s minimum wage and overtime provisions do not apply to the worker.
Federal and state labor departments are cracking down on unpaid internships “due to a concern that paid jobs are being displaced and to increase payroll tax revenues,” says employment lawyer Terence P. McCourt of Greenberg Traurig in Boston.
With so much at stake, it’s a good time for HR professionals to review their companies’ internship policies to ensure that they are in compliance with government requirements.
Legal Exposure
The DOL standards state that most nonexempt individuals “suffered or permitted” to work must be compensated for the services they perform for an employer unless certain conditions are met. In general:
- The internship program must be similar to training that would be given in an educational environment, such as a college, university or trade school.
- The intern and the employer must both understand that the intern is not entitled to wages.
- The company must receive no immediate advantage from the internship and in fact may find its operations disrupted by the training effort.
- The intern must not take the job of regular employees.
Unpaid Programs on the Rise
Despite the risks, unpaid internships appear to be on the rise. In a May 2010 survey by Internships.com, an online clearinghouse for companies and would-be interns, two-thirds of the more than 300 college and university career center professionals who responded said that overall internship postings on their campuses increased from 2009 to 2010. However, more campuses reported lower numbers of paid internships than those reporting increases.
“Unpaid internships do appear to be on the rise,” says attorney James M. Coleman of the labor and employment law firm Constangy, Brooks & Smith LLP in Fairfax, Va. Whether the rise is in “reaction to the difficult economy and an effort to save on labor costs is not completely clear.”
Companies can protect themselves by having the college intern ask his professor for academic credit for the internship. Employers should coordinate with an intern’s school to determine requirements mandated by the educational institution, experts say.
An internship is more likely to be viewed as training if it provides interns with skills that can be used in multiple settings, as opposed to skills that are specific to one employer’s work environment.
Interns should be “allowed to observe aspects of the employer’s operations, such as job shadowing, without needing to perform services at all times,” McCourt says. He adds that an intern should not supervise regular employees or other interns, and the company should define the arrangement clearly and in writing, specifying that there is no expectation of a job offer at the conclusion of the internship.
HR professionals and lawyers say it may be useful for companies to keep written records of what an intern expects to gain from an unpaid program. Attorney Oscar Michelen of Sandback & Michelen in New York City suggests preserving memos, e-mails and other documentation covering what each intern does, such as attending scheduled training sessions and luncheon meetings with regular employees, and what type of training and supervision will be provided.
SOURCE: Taylor, S. (17 January 2020). "Beware the Legal Pitfalls of Managing Unpaid Interns" (Web Blog Post). Retrieved from https://www.shrm.org/hr-today/news/hr-news/pages/managingunpaidinterns.aspx
How AI can predict the employees who are about to quit
Employers are now utilizing artificial intelligence (AI) to help predict how likely it is that an employee will stay with their company. Read this blog post to learn more.
Tim Reilly had a problem: Employees at Benchmark's senior living facilities kept quitting.
Reilly, vice president of human resources at Benchmark, a Massachusetts-based assisted living facility provider with employees throughout the Northeast, was consistently frustrated with the number of employees that were leaving their jobs. Staff turnover was climbing toward 50%, and after many approaches to improve retention, Benchmark turned to Arena, a platform that uses artificial intelligence to predict how likely it is that an employee will stay in their job.
“Our new vision is about human connection,” he says. “With a turnover rate that’s double digits, how do you really transform lives or have that major impact and human connection with people who are changing rapidly?”
Since Benchmark started using Arena, staff turnover has fallen 10%, compared to the same time last year. During the hiring process, Arena looks at third-party data, like labor market statistics, combined with applicants' resume information and an employee assessment that will give them a better sense of how long a candidate is likely to stay in a role.
“The core problem we’re solving is that individuals aren’t always great at hiring,” says Michael Rosenbaum, chairman of Arena. “Job applicants don’t always know where they’re likely to be happiest. By using the predictive power of data, we’re essentially helping to answer that question.”
Arena isn’t interested in how an employee responds to assessment questions, he says. They’re much more interested in how employees approach the questions.
“What you’re really doing is your collecting some information about how people react to stress,” Rosenbaum adds.
For example, if an employee is applying for a housekeeping role, Arena may give them a timed advanced math question to complete — something they may never use in their actual job. Arena then studies how the candidate responds to the question — analyzing key strokes and tracking how the individual tackles the challenge. The software can then get a better sense of how an applicant responds under pressure.
Overtime, Arena’s algorithm learns from the data it collects. The system tracks how long a specific employee stays at the company and can then better predict, moving forward, whether other employees with similar characteristics will stay.
“Overtime they are able to sort of refine that prediction about those that are most likely to stay, or be retained with our organization,” Reilly says. “They may also make a prediction on someone who might not last very long.”
Reilly says he’s been encouraging hiring managers at the facilities to use the data given to them by Arena to take a closer look at the candidates the platform rates as highly likely to stay in their roles. Although it’s ultimately up to the hiring manager who they select.
“Focus your time on the [candidates] that are more likely to stay with us longer,” Reilly says.
For now, Arena exclusively works with healthcare companies. The platform is currently being used by companies like Sunrise Senior Living and the Mount Sinai Health System in New York. Moving forward, Rosenbaum says, they’re hoping to get into other industries, although he would not specify which.
Rosenbaum says Arena is not only focused on improving the quality of life for employees, but also for the patients and seniors that use the facilities. The happiness of patients, he says, is closely tied to those that are caring for them.
“Is someone who is in a senior living community happy? Do they have a positive experience? It is very closely related to who’s caring for them, who’s supporting them,” he says.
SOURCE: Hroncich, C. (15 November 2018) "How AI can predict the employees who are about to quit" (Web Blog Post). Retrieved from: https://www.employeebenefitadviser.com/news/how-ai-can-predict-the-employees-who-are-about-to-quit?brief=00000152-1443-d1cc-a5fa-7cfba3c60000
Saxon Welcomes a New Senior Solutions Specialist
Saxon is excited and proud to announce a new employee added to our team, Leigh Rathje!
Leigh’s background in group health insurance has led her to a new path with Saxon as a Senior Advisor. She helps her clients in the day to day needs when it comes to Medicare questions, enrollments, claims issues, and billing concerns.
