Affinity HR Questions & Answers


We have a new intern. It's an unpaid internship, but I thought those were illegal. Should we be paying her for the work she performs?

Customer

Question: We have a new intern – the daughter of one of the owners. It’s an unpaid internship, but I thought those were illegal. Should we be paying her for the work she performs?

Answer: The answer is most likely yes. In recent years, the Department of Labor has issued clarifying guidance on what qualifies as a bona fide internship. For a review of that guidance, read the following: https://www.dol.gov/whd/regs/compliance/whdfs71.htm.

Essentially, unpaid internships have to benefit the intern, not the employer. To be bona fide, courts have identified the following seven factors as a test:

       1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, expressed or implied, suggests that 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.

       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 the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

If your internship cannot pass the test above, your intern is most likely entitled to both minimum wage and overtime pay under the Fair Labor Standards Act.

We have an hourly worker who was arrested for molesting an underage young woman. Can we terminate him for this?

Customer

Question: We have an hourly worker who was arrested for molesting an underage young woman. Can we terminate him for this?

Answer: As offensive as that situation is, many state laws protect individuals from adverse employment actions (such as terminations) for a simple arrest. Many states protect an employee from termination unless the individual is convicted of the crime for which he or she is accused. Best to check with an attorney or an HR professional before making any decisions as to the fate of the individual.

We've just learned that a supervisor and his subordinate are involved in a personal, romantic relationship. In light of the #MeToo movement, should we be requiring anything or taking any action?

Customer

Question: We’ve just learned that a supervisor and his subordinate are involved in a personal, romantic relationship. In light of the #MeToo movement, should we be requiring anything or taking any action?

Answer: Finding love at work is a pretty common phenomenon. In fact 15% of married couples actually met at work. So the likelihood that most employers will face this situation is pretty great. But despite the prevalence of consensual relationships at work, there are things you should consider including having employees read and sign a Consensual Relationship Policy which requires that employees agree that…

        · the relationship is truly consensual

        · all parties to the relationship are aware of the company’s code of ethics, sexual harassment, and non-discrimination policies

        · all parties will conform to the company’s code of conduct policy and will maintain a strict professional demeanor while at work or at work functions

        · employees in a supervisor/subordinate relationship will be reassigned so that no formal line of authority exists within the relationship

        · the repercussion of not complying with the Consensual Relationship Policy includes discipline up to and including termination, and that the burden of adherence to the policy falls largely and squarely on the highest-ranking employee in the relationship.

While the popularity of such Consensual Relationship Policies is increasing due to the notoriety of the #MeToo movement, these are sound and solid policies that should be considered by any employer looking to maintain a safe and healthy workplace environment.

With all of the talk about gun violence, do I have the right as an employer to prohibit anyone from bringing a firearm on our property?

Customer

Question: With all of the talk about gun violence, do I have the right as an employer to prohibit anyone from bringing a firearm on our property?

Answer: While most states allow an employer the right to prohibit firearms in the actual workplace, 22 states allow employees with appropriate carry/conceal licenses to store their guns in their vehicles while the vehicle is parked in a worksite parking lot. The following states have “Parking Lot Storage” laws that give employees the right to keep firearms when parked on employer-owned property: Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Nebraska, North Dakota, Ohio, Oklahoma, Tennessee, Texas, Utah, and Wisconsin.