Are Interns Employees? Yes and No.

The National Association of Colleges and Employers reported that in 1992 about 9% of college graduates had completed an internship. In 2008 that number jumped to 83%, most of whom weren’t paid. However, by 2011, studies showed that over half of college interns were paid… and that trend continues today.

Internship programs have many benefits whether they’re paid or unpaid. However, it’s important to take note that an intern is by no means a free employee. In fact, internships are highly regulated by the U.S. Department of Labor (DOL) and protected under the federal Fair Labor Standards Act (FSLA).

The DOL had a six-factor test to determine the legality of an unpaid internship that was rejected by four appellate courts due to the FLSA’s definition of employment being too broad. Since then, the test has been expanded and altered.

Unpaid Internships

There is a fine line between what an unpaid intern can and cannot do. Per the DOL the new set of criteria for an unpaid internship is as follows:

  • Both parties understand that the intern is not entitled to compensation.
  • The internship provides training that would be given in an educational environment.
  • The intern’s completion of the program entitles him or her to academic credit.
  • The internship corresponds with the academic calendar.
  • The internship’s duration is limited to the period when the internship educates the intern.
  • The intern’s work complements rather than displaces the work of paid employees while providing significant educational benefits.
  • The intern and the employer understand that the internship is conducted without entitlement to a paid job at the internship’s completion.

As you may be able to tell, none of the criteria are yes/no questions, leaving room for ambiguity. Despite the confusion, an unpaid internship MUST pass this test. If it doesn’t, an intern needs to be compensated, making them an actual employee of the company.

However, an unpaid internship still has its benefits. For one, it can help a student (of legal working age)—or a new professional—learn about an industry or the operations of a company. Secondly, it can help a company mold an intern into the employee it wishes to have–an employee that knows the ins and outs of their company policies and how to perform job tasks.

Paid Internships

If an intern is being paid, they are an employee of a company. There is no argument to this fact–it falls under the same classification as a full-time, part-time, or temporary employee. This means a paid intern is entitled to the same legal protections as other employees.

Those being paid in an internship program need to complete a Form I-9 in addition to federal and state withholding forms. They are also guaranteed state or federal minimum wage for hours worked and overtime pay when applicable. In some cases, a paid intern may be entitled to statutory benefits like health coverage or paid sick leave.

Similar to an unpaid internship, a paid internship can still be mutually beneficial for the employer and the intern.

Getting an Internship Program Up and Running

So far there has been plenty of information to process about internships and internship programs. However, this shouldn’t be intimidating to you or your business–these programs can prove to be highly valuable.

Whether you already have an active program or not, developing a process for a future program will set you up for success. Now that you know the differences between paid and unpaid internships, and how they compare to regular employment, it will be useful for you to take advantage of a recruitment guide and an onboarding checklist.

You’ll also need to implement regular evaluations. After all, an internship program is a learning experience and the more you learn about an intern, the more educated your decisions will be in the future and vice versa—the more an intern can learn from you and your business, the more valuable the internship will be for them and their future careers. Consider using an eval form to be certain all evaluations are fair and uniform.

If you still have questions about internships or anything related to human resources, you can always speak with an HR specialist–they can steer you in the right direction.

October 2021: Planning Ahead and Updated Posting Requirements

Plan Ahead

(This section provides you with an overview of current and upcoming laws that take effect)

Law / RegulationEffective Date
Oklahoma Authorizes Tax Debt Garnishment NoticesNovember 1, 2021
New York Employers Must Permit Workplace Safety CommitteesNovember 1, 2021
FLSA Tip Credit Rule Takes EffectNovember 23, 2021

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Posting Updates

(This section provides you with an overview of labor law postings for this month. Note: many of these are included in the federal/state labor law poster.)

Federal or StateUpdated PostingMandatory or Recommended
TBD
FederalFair Labor Standards Act (FLSA) – Overtime Exemptions, Overtime, Joint EmploymentANTICIPATED
FederalMinimum WageANTICIPATED
FederalFamily Medical Leave ActANTICIPATED
ANTICIPATED
IllinoisYou Have the Right to be Free from Job Discrimination and Sexual HarassmentANTICIPATED
New JerseyWage TheftANTICIPATED
New JerseySafe ActANTICIPATED
New YorkDiscriminationANTICIPATED
VirginiaMinimum WageANTICIPATED
New YorkFair EmploymentANTICIPATED
ColoradoHealthy Families and Workplaces LawANTICIPATED
New YorkMinimum WageANTICIPATED
Rhode IslandMinimum WageANTICIPATED
Rhode IslandPay EquityANTICIPATED
MaineRegulation of EmploymentANTICIPATED
ColoradoMinimum WageANTICIPATED
10/1/2021
ConnecticutWorkers’ CompensationRECOMMENDED
MassachusettsCOVID-19 Emergency Paid Sick Leave
(INSERT ONLY)
MANDATORY
ArkansasUnemployment InsuranceRECOMMENDED
MichiganMinimum WageRECOMMENDED
MichiganUnemployment CompensationRECOMMENDED
MichiganChild Labor LawsRECOMMENDED
MichiganPaid Medical Leave ActRECOMMENDED

October 2021 Puerto Rico HR Legal Updates

Puerto Rico Passes Minimum Wage Increase Law

Update Applicable to:
All employers in Puerto Rico.

What happened?
On September 21, 2021, Governor Pierluisi signed the Puerto Rico Minimum Wage Act (House Bill 338, Act 47-2021) into law.

What are the details?
The law, effective January 1, 2021, supersedes the lower federal minimum wage beginning 2022 and creates the “Minimum Wage Review Board” to periodically review and potentially increase minimum wage every two years. The law will automatically increase to $8.50 per hour on January 1, 2022, and to $9.50 per hour on July 1, 2023, for all employees covered by the Fair Labor Standards Act. It is scheduled to increase to $10.50 per hour on July 1, 2024, unless the new Minimum Wage Review Board provides otherwise.

The minimum wage increase applies to non-exempt employees covered by the federal Fair Labor Standards Act (FLSA).

Puerto Rico’s minimum wage will not apply to the following:

  • Agriculture workers
  • Administrators, executives, and professionals
  • Employees covered by a collective bargaining agreement establishing a higher wage.
  • Governmental employees, including the government’s executive agencies, legislative and judiciary branches, municipalities, and instrumentalities, but excluding employees of public corporations and other public entities that operate as private corporations.

For more information, please see the links below:

Official Statement

Article 1

Article 2

What do employers need to do?
Employers should review the new law’s information and their current payroll policies to make applicable updates and comply with the law once it is effective.

October 2021 New York HR Legal Updates

New York Minimum Wage Increase

Update Applicable to:
All employers in New York.

What happened?
On September 22, 2021, the New York State Division of the Budget issued a report on the minimum wage rate increase schedule for specific counties in New York.

What are the details?
The wage rates, scheduled to take effect December 31, 2021, on the report recommends increasing the minimum wage in the counties of Nassau, Suffolk, and Winchester counties to $15.00 per hour.

For more information, please see the links below:

Minimum Wage Increase Schedule

Article

What do employers need to do?
Employers should review the report and their current payroll policies to make any applicable changes to comply when the changes take effect.

October 2021 Florida HR Legal Updates

Florida Expands Requirement for Reporting New Hires, Independent Contractors to Department of Revenue

Update Applicable to:
All employers in Florida.

What happened?
On October 1, 2021, the Florida Statute 409.2576 was amended to now apply to all employers and adds new reporting requirements.

What are the details?
Effective immediately, employers in the state of Florida are required to report all newly hired employees to the Directory of New Hires within 20 days of their dates of hire. The amendment also requires businesses to report service independent contractors who are paid $600 or more in a calendar year within 20 days of the start of the contractual relationship or the first payment, whichever occurs first.
 
When reporting an independent contractor, a company must provide the individual’s name, address, Social Security number (or other identifying number assigned under Section 6109 of the Internal Revenue Code), the date services for payment were first performed by the individual, and the name, address, and employer identification number of the service recipient. When submitting the information, the company should use the Florida New Hire Reporting Center website established for employers.

For more information, please see the links provided below:

New Hire Reporting Center

Florida Statute § 409.2576

Article 1

What do employers need to do?
Employers should review the links above and ensure their new hiring process complies with the above amendments.

October 2021 Colorado HR Legal Updates

Extension of Colorado Public Health Emergency Supplemental Leave

Update Applicable to:
All employers in Colorado.

What happened?
On October 15, 2021, U.S. Secretary of Health and Human Services Xavier Becerra announced an extension of the COVID-19 public health emergency (PHE).

What are the details?
Effective October 18, 2021, the PHE has been extended through January 16, 2022 (each renewal of determination signed by the U.S Secretary is for the duration of 90 days – Link).

In accordance with 7 CCR 1103-7 Section 3.5.1(D) Link– Page 7, the Healthy Families and Workplaces Act (HFWA) in Colorado requires employers to permit employees to take leave for qualifying reasons as per C.R.S. § 8-13.3-405(3) Link– throughout the duration of the emergency and until four weeks after it ends on February 13, 2022.
 
For more information, please see the links below:
 
Extension of Public Health Emergency (PHE)
 
Public Health Emergency Planning and FAQs
 
Article 1

What do employers need to do?
Employers should review the links above and continue to provide the required sick leave in accordance with the law.

October 2021 California HR Legal Updates

California Employer’s Record Retention Expanded

Update Applicable to:
All employers in California.

What happened?
On September 23, 2021, Governor Newsom signed SB 807 into law.

What are the details?
The law, effective January 1, 2022, expands the current record retention requirements for California employers and how the Department of Fair Employment and Housing (DFEH) enforces California’s civil rights laws. The record retention period has been extended to four years from the date the records were created or the date the employment action was taken.

In addition, SB 807 extends the period in which an individual can file a civil action for violations of specific statutes by tolling that period while the DFEH investigates and/or takes action on a complaint.

After the filing of any employment discrimination complaints that would be treated by the DFEH as a class or group complaint, the DFEH will have 2 years to complete its investigation and issue a right-to-sue notice.

The law can be read here.

An article on the law can be found here.

What do employers need to do?
Employers should review the law and their record retention policies to make any updates in time for when the law is active on January 1, 2022.

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California Imposes Significant New Restrictions on Severance and Settlement Agreements

Update Applicable to:
All employers in California.

What happened?
On October 7, 2021, Governor Newsom signed Senate Bill 331 (SB 331) into law to impose new restrictions on severance and settlement agreements.

What are the details?
Effective January 1, 2022, the following key provisions from SB 331 will be required during a severance or settlement agreement:

  • Time to consider the agreement
  • Right to consult an attorney
  • Disclosure of FEHA claims
  • Disclosure of unlawful workplace acts
  • Non-disparagement provisions
  • Other provisions (general release or waiver of all claims, prohibit disclosure of trade secrets and information, and require the amount of severance to be paid to remain confidential)


For more information, please see the links below:

Senate Bill 331

Article 1

Article 2
 

What do employers need to do?
Employers should review the links provided above, revise their severance and settlement agreement templates, and prepare for the upcoming change taking effect on January 1, 2022.

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California Passes Law on Job Performance Quotas for Large Warehouse Facilities

Update Applicable to:
Employers with warehouse distribution centers and storage centers in California.

What happened?
On September 22, 2021, Governor Newsom signed AB 701 into law.

What are the details?
The law, effective January 1, 2022, requires employers with large warehouse distributions centers to disclose quotas and pace-of-work standards to each employee upon hire or within 30 days of the law going into effect. The law applies to employers that employ or exercise control over the wages, hours, or working conditions of 100 or more employees at a single warehouse distribution center or 1,000 or more employees at one or more distribution warehouse centers in California. The law clarifies warehouse distribution centers covered by this law with NAICS Codes the following NAICS Codes are included in the covered establishments:

The new law also provides that employees are not required to meet quotas that prevent compliance with meal or rest periods, use of bathroom facilities, or occupational health and safety laws. If a current or former employee believes that a quota has caused a violation of such laws, the employee may request, and the employer must provide, a written description of each quota applicable to the employee and a copy of the most recent or last 90 days of the employee’s own personal work speed data. A former employee is limited to one request. Additionally, the law presumes retaliation if employers take adverse action against employees who, have taken the actions described in the Law in the previous 90 days.

The law can be read here.

Articles discussing the new law are found here and here.

What do employers need to do?
Employers should review the law and their current policies and processes for quotas to make any changes to stay in compliance with the law. The law firm Fisher & Phillips LLP recommends employers evaluate current quotas, create and produce written quotas for each employee, create a process for data requests, and pause before taking adverse actions.

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California Bill Allows Required Notices and Postings to be Emailed to Employees

Update Applicable to:
All employers in California.

What happened?
On July 16, 2021, Governor Newson signed SB 657 into law.

What are the details?
The law, effective January 1, 2022, makes a change to assist employers that have remote workers. The law allows that in any instance in which an employer is required to physically post information, an employer may also distribute that information to employees by email with the document or documents attached. This does not remove an employer’s obligation to physically display postings.

The law can be found here.

An article on the law can be read here.

What do employers need to do?
Employers should review the law and their posting/notice policies to prepare and make any required updates for the new allowance the law provides by January 1, 2022.


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Los Angeles County Issues Public Health Order Requiring COVID-19 Vaccine Verification or Proof of Negative Results

Update Applicable to:
All employers of hospitality businesses in Los Angeles County.

What happened?
On October 7, 2021, Los Angeles County issued a new public health order that would affect operators of hospitality businesses.

What are the details?
Effective as of October 7, 2021, Los Angeles County is requiring that operators of hospitality businesses must verify COVID-19 vaccination or proof of negative test results from customers/attendees per new public health Order.

This order will influence operators of:

  • Outdoor mega-events (a mega event is defined as 1,000 indoor or 10,000 outdoor attendees)
  • Bars, wineries, distilleries, nightclubs, and lounges for indoor services
  • Restaurants and food facilities

For more information, please see the  links below:

Public Health Order

Article 1

Article 2

What do employers need to do?
Employers should review the above links and review their COVID-19 safety protocols.

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California Passes New Legislation that Prevents Food Delivery Platforms from Retaining Amounts Designated as Tips of Gratuity

Update Applicable to:
All food delivery service employers in California.

What happened?
On October 5, 2021, Governor Newsom passed Assembly Bill No. 286 (AB 286), which amends the Fair Food Delivery Act of 2020 and adds more regulations on online food delivery services.

What are the details?
Effective January 1, 2022, food delivery businesses will not be allowed to retain any portion of amounts designated as a tip or gratuity. Food delivery platforms will be required to pay any tip or gratuity for a delivery order, in its entirety, to the person delivering the food or beverage and to pay any tip or gratuity for a pickup order, in its entirety, to the food facility.
 
The bill also requires food delivery platforms to disclose to the customer and food facility a cost breakdown of each transaction.
 
The cost breakdown must include:

  1. The purchase price of the food and beverage
  2. A notice that the food delivery platform charges a fee, commission, or cost to the food facility; unless the facility directs the delivery platform to disclose to customers the delivery fee charged to the facility and each fee, commission, or cost charged to the facility.
  3. Each fee, commission, or cost charged to the customer by the delivery platform
  4. Any tip or gratuity

For more information, please see the links below:

Assembly Bill 286

Fair Food Delivery Act of 2020

Article 1

Article 2

What do employers need to do?
Employers should review the links above and prepare to adjust their overall charging fees to stay in compliance with the new law effective January 1, 2022.

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California Passes Garment Worker Protection Act

Update Applicable to:
All garment industry employers in California.

What happened?
On September 27, 2021, Governor Newsom signed Senate Bill No. 62 (SB 62) to protect garment workers from abusive labor practices.

What are the details?
Effective January 1, 2022, California requires that employers can no longer pay employees “engaged in the performance of garment manufacturing” by piece rate.
 
Moreover, “garment manufacturing” now includes “sewing, cutting, making, processing, repairing, finishing, assembling, dyeing, altering a garment’s design, causing another person to alter a garment’s design, affixing a label to a garment, or otherwise preparing any garment or any article of wearing apparel or accessories designed or intended to be worn by any individual.” 

Although employers can still pay garment workers incentive-based bonuses (which should be included when calculating an employee’s regular rate of pay), employers must now pay garment workers at an hourly rate that is not less than the applicable minimum wage.

For more information, please see the links below:

Senate Bill No. 62

Article 1

Article 2

What do employers need to do?
Employers should review the links above and prepare to make changes to their payroll system to stay in compliance with the upcoming law change.

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California Implements New Restrictions on Severance Agreements, Non-Disparagement and Confidentiality Agreements

Update Applicable to:

All employers in California.

What happened?
On October 7, 2021, Governor Newsom enacted Senate Bill 331 (SB 331).

What are the details?

The bill, effective January 1, 2022, enacts additional restrictions on employers offering severance agreements and settling claims alleging harassment, discrimination, or retaliation based on purported violations of the Fair Employment and Housing Act.

The new law creates an unlawful employment practice against employers that prevent disclosing of information about unlawful acts of harassment, discrimination, or retaliation in the workplace in severance agreements, rendering such agreements unenforceable and against California’s public policy. 

Further, non-disparagement agreements must, effective 2022, include language relating to the employee’s right to disclose information about unlawful acts in the workplace substantially similar to: “Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful.”

For more information, please see the links below:

SB 331
Article

What do employers need to do?
Employers should review the new bill and its applicable policies to make the required changes to stay in compliance with the law by January 1, 2022.


October 2021 Federal HR Updates

U.S Department of Labor Announces Minimum Wage Increase for Federal Contractors

Update Applicable to:
All federal contractors with workers performing work on or in connection with, covered contracts.

What happened?
On September 16, 2021, the U.S. Department of Labor (DOL) released a Federal Register notice announcing an increase to the federal contractor minimum wage in Executive Order 13658.

What are the details?
On January 1, 2022, the order raises the federal contractor’s minimum wage from $10.95 to $11.25 per hour for workers performing work on or in connection with covered contracts.

Additionally, tipped employees performing work on or in connection with covered contracts generally must be paid a minimum cash wage of $7.90 per hour.

For more information, please see the links below:

Federal Register Notice

Article 1Article 2Article 3

What do employers need to do?

Employers should review the order as well as their payroll and federal contractor policies and make any updates to stay in compliance with the order.

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New Guidance Issued for Federal Contractor Vaccinations

Update Applicable to:
All employers with federal contractor employees.

What happened?
On September 24, 2021, the White House issued new guidance regarding federal contractor employee vaccinations.

What are the details?
The guidance states that federal contractor employees must be fully vaccinated against COVID-19 no later than December 8, 2021, unless the employee is legally entitled to an accommodation. After the provided date, all covered contractor employees must be fully vaccinated by:

  • The first day of the period of performance on a newly awarded covered contract, and 
  • By the first day of the period of performance on an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract.

The covered contractor must also review its covered employees’ documentation to prove vaccination status. Covered contractors must require covered contractor employees to show or provide their employer with one of the documents approved in the guidance.

The released guidance can be read here.

An article on the guidance can be found here.

What do employers need to do?
Employers should review the guidance here and their vaccination policies to update and apply the vaccination requirements detailed in the guidance to stay in compliance.

Five Effective Tips for Making Employee Write-Ups a Positive Experience

The terms “write-up,” or “reprimand,” often denote negativity—but this isn’t always true. Employee write-ups are able to be used for encouragement and motivation, they don’t always need to be used in times when an employee is not following company policies.

There are essentially two forms of employee motivation: intrinsic and extrinsic. Intrinsic motivation includes personal challenges, job satisfaction, and self-fulfillment while the latter is more physical (salary, bonuses, gifts, etc.). An employee write-up is more closely related to intrinsic motivation and you should highly consider using your write-ups as motivational tools, rather than a traditional reprimand.

Here are a few tips to help make your employee write-ups more valuable and motivational:

Coach/Mentor Your Employees

There are many situations when an employee doesn’t know they have done something wrong or why they are being written up. This is a great moment for you to coach your employee.

Explain to your employees exactly what the infraction was and be as transparent as possible when helping them figure out how to avoid this in the future. By assisting your employee during a write-up review, it will be perceived as more of an encouragement than a reprimand.

Remember, encouragement is not praise, it’s a push in the right direction.

Set Goals

Employee write-ups can be used as a tool to keep employees on track towards their goals. While someone’s work may be exemplary, the same may not be said about their time management. Instead of getting angry because someone’s work is consistently late, discuss setting goals that can help keep your employee on track.

Goal setting can also be impactful when it comes to collaboration. Some employees may not be comfortable working with others, but collaboration is necessary in the workplace. Setting goals to work closer with their colleagues can help employees ease out of their comfort zone.

Communicate Expectations

While an employee write-up comes from a superior, it doesn’t always mean that an employee is at fault. For example, if your graphic designer always sends you two versions of a piece of content, but you expect three, this needs to be explained if it hasn’t before.

Communication is the key to all forms of success and can set the foundation your business needs to run smoothly. All employees must have a clear understanding of what is expected of them. If not, productivity will decrease and your teams will operate inefficiently.

Keep the Discussion Focused on the Infraction

Employee write-ups should be focused specifically on the infraction an employee is being spoken to about. It’s easy to get off topic and start reviewing other things an employee may or may not have done, but it is imperative that the conversation is specific and transparent.

Employee write-up forms are an effective tool to help overcome this challenge as they provide direction for these conversations and adequate room to take notes.

Allow Your Employee to Tell Their Side

Employee write-ups shouldn’t be a one way street if you want them to be as positive an interaction as possible. You need to allow your employees a chance to use their voice to explain what may have happened, or why something has happened. It’s always possible that a violation of policy was a misunderstanding. By allowing your employees to voice their opinion, it also gives you some insight on how you can manage specific employees in the future. Everyone is different and may receive a write-up for different things, so you must handle these situations case-by-case. No solution is one size fits all…consider downloading an employee eval form as another way to learn how to manage employees.

October 2021: Texas Governor Bans Vaccine Mandate

Update Applicable to:

All employers in Texas.

What happened?

On October 11, 2021, Governor Abbott issued Executive Order No. GA-40 placing restrictions on any entity (including private employers) from issuing COVID-19 vaccine mandates, subject to legislative action.

What are the details?

Effective immediately, no entity in Texas can compel COVID-19 vaccination by any individual, including an employee or consumer who objects to such vaccination for the following reasons:

  • Personal conscience
  • Religious belief
  • Medical reasons (including prior recovery from COVID-19)

Entities who fail to comply with this executive order may face the “maximum fine allowed” under Section 418.173 of the Texas Government Code, which is $1,000.

For more information, please see the links below:

Executive Order GA 40

Texas Government Code Section 418.173

Article 1

Article 2

What do employers need to do?

Employers should review the links above and make the required changes to their vaccination policies to comply with this law while it is in effect.