Matt Durham
Matt Durham is a partner of Stoel Rives' Litigation and Employment Law groups. He represents clients in state and federal courts and administrative agencies in matters relating to employment discrimination, harassment, wrongful termination, wage and hour, drug testing, leave, benefits and labor/occupational safety issues. He routinely advises clients on developing and implementing personnel policies and complying with state and federal employment laws. Matthew also represents clients in general civil litigation matters. He has also mediated employment disputes. Matt is ranked as a leading Utah Labor and Employment attorney by Chambers USA and by Best Lawyers in America.
When to Pay Summer Interns: FLSA Guidance You Need to Know
It's that time of year again, here's our post from last year from Matt Durham on this perennial summer concern for employers . . .
Certain things have become the recognizable signs of spring. Budding leaves. Flowers. Chirping birds. And summer intern resumes. Especially during a slow or recovering economy, HR professionals are likely to receive many resumes from eager students or recent graduates hoping to work as interns in order to gain valuable experience and networking opportunities. Often, intern candidates offer to work for nothing in exchange for the chance to learn about a job or industry.
Of course the idea, however enticing, of free labor should raise red flags. In fact, the United States Department of Labor (“DOL”) has made it clear that, unless specific criteria are met, student “interns” working at for-profit companies are actually student “employees,” subject to the minimum wage and overtime requirements of the Fair Labor Standards Act (“FLSA”). The DOL has identified the following six criteria for determining whether an individual meets the test for an unpaid intern:
- The internship, even though it includes actual operation of the facilities of the employer, is similar to training which 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 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 is not necessarily entitled to a job at the conclusion of the internship; and
- The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
Only if an internship program meets all of these requirements can participants be considered unpaid interns. And as you can imagine, meeting all of these requirements can be challenging. For example, the internship program must be structured around classroom or academic experience rather than around the employer’s business operations. For this reason, compliant programs are often developed and overseen by colleges or universities, which then give academic credit for participation. Moreover, the more the interns perform productive work for the employer (as opposed to job shadowing or similar activities), the more likely they will be deemed employees, entitled to minimum wage and overtime under the FLSA. You can find the DOL’s fact sheet on internship programs here.
At the end of the day, private employers seeking to benefit directly from eager students or graduates willing to work for the experience will find it difficult to meet DOL requirements. On the other hand, a company willing to provide work experience in order to be a good corporate citizen or to build relationships with schools or students, can structure an unpaid student intern program to meet those goals and comply with the law.
Utah Immigration Legislation Remains Up In the Air (UPDATED)
Immigration was one of the top issues in the 2011 Utah Legislative session, which concluded last week. Contrary to early predictions, Utah did not adopt a carbon-copy of Arizona’s controversial immigration law. In fact, even the “enforcement” legislation, which got so much attention before the session, passed only after it was amended to remove language that some feared would lead to racial profiling. In addition, the Utah legislature also passed bills providing for a guest worker program (which will require federal approval) and a worker exchange program with Nueva Leon, Mexico. At the end of the day, Utah’s “omnibus” approach was seen by many as a kinder, gentler version of state immigration policy. (We hope our constitutional-expert readers will forgive that term). Some, however, take a more cynical view of Utah’s efforts in this arena, and Latino groups have called for a boycott of Utah businesses through March 28.
And the political drama over Utah’s immigration legislation is not over, either. None of these immigration bills have yet been signed by Utah Governor Gary Herbert. Governor Herbert has until March 30 to sign or veto the bills. Alternatively, he can allow the bills to take effect without his signature. Governor Herbert signaled his support and approval for the “omnibus” immigration package, noting that it comports with views he had previously articulated, and with the Utah Compact, which contains guidelines on immigration policy proposed by a diverse group of Utah community, business and religious leaders and groups. Nevertheless, Governor Herbert is being pressured by groups who seek stronger immigration enforcement to veto the guest worker legislation, which they fear will attract undocumented workers to Utah.
Most predict that the Utah immigration bills will take effect. That will probably not be the end of the story, however. The scene may simply change to Washington or the courts.
UPDATE: Governor Herbert today (3/15) signed all four immigration passed by the Utah legislature. According to news reports, Utah officials are already in discussions with the White House and members of Congress regarding federal waivers that would allow Utah’s guest worker program to operate constitutionally.
How To Avoid Holiday Party Pitfalls (and Liability)
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According to recent poll by the Society of Human Managers (SHRM), fewer employers are foregoing holiday parties this year than in 2009. Although the economy continues to sputter, many employers likely see the traditional holiday party as a relatively inexpensive way of boosting morale and creating good will among their employees.
Some employers approach party planning with trepidation, fearful that too much holiday cheer will lead to problems. Here are some tips for planning a successful employer-sponsored event while avoiding some common holiday party pitfalls:
- Remind employees, and especially supervisors, that the holiday party is a work event, and policies regarding appropriate workplace conduct are in effect
- Enlist supervisors in maintaining appropriate conduct standards
- Recognize diversity by celebrating the season or the end of the year, without reference to specific holidays or religious traditions
- Choose a venue at which all employees will be comfortable (i.e., probably not the sports bar with the skimpy server outfits), and that will be accessible to employees with disabilities
- Invite spouses or partners to attend
- If alcohol will be served, limit its consumption through tickets or a cash bar and have a third party, not employees or supervisors, serve the drinks
- Make arrangements for taxi service to get impaired employees home and be proactive in assessing those who should not drive
- Clearly conclude the party when it is over to avoid lingering or post-party activities where control will be difficult
- If complaints about conduct at the party surface, address them promptly
With a little planning, the workplace holiday party can be a success. Even the HR department will be able to relax and have a good time!
