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SHRM Newsletter: Annual Reminder on Risks of Unpaid Internships
Posted on May. 6, 2014

This is Utah SHRM Legal-mail no. 2014-8 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).

CONTENTS:

-  ANNUAL REMINDER ON RISKS OF UNPAID INTERNSHIPS

-  RACIST PRESIDENTIAL JOKES AT WORK LEAD TO EMPLOYER LIABILITY

-  INSENSITIVE FACEBOOK COMMENTS LEAD TO RESIGNATION IN UTAH CASE

-  NEW MODEL COBRA NOTICES ARE AVAILABLE

-  IF YOU SIT ON YOUR EMPLOYER FMLA RIGHTS YOU MAY LOSE THEM

ANNUAL REMINDER ON RISKS OF UNPAID INTERNSHIPS: With Summer just around the corner, it is time for a reminder that it is risky for employers to employ unpaid interns. A number of organizations have been sued by unpaid interns and several of them have entered into six figure settlements to compensate persons improperly classified as unpaid interns. The United States Department of Labor (DOL) has outlined what will constitute a proper unpaid internship. Essentially, to be unpaid, these factors must be met: (1) 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; (2) The internship experience is for the benefit of the intern;  (3) The intern does not displace regular employees, but works under close supervision of existing staff; (4) 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;  (5) The intern is not necessarily entitled to a job at the conclusion of the internship; and (6) The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship. Here is a link to the DOL summary: http://www.dol.gov/whd/regs/compliance/whdfs71.pdf.  Here is a link to a recent news article highlighting some of the risks of using unpaid interns:

http://www.marketplace.org/topics/economy/education/why-unpaid-internship-may-be-its-way-out.

RACIST PRESIDENTIAL JOKES AT WORK LEAD TO EMPLOYER LIABILITY: An Indiana federal court has upheld a race discrimination liability verdict in a case filed by an African-American driver formerly employed with a transport company. The case included allegations that company executives made offensive racial jokes at group meetings and that co-workers made racist comments about President Barack Obama and frequently used the “N” word. The jury awarded over $3 million, including punitive damages, to the involved employee. On review, the judge in the matter sustained the verdict but reduced the amount of the total damages awarded.

INSENSITIVE FACEBOOK COMMENTS LEAD TO RESIGNATION IN UTAH CASE: Speaking of insensitive comments, a Utah cardiac nurse has resigned his employment in the face of controversy over his postings on Facebook.  The case arose after a shooting occurred in a gang crimes case in the new Utah federal courthouse. The defendant in that criminal case allegedly had charged the witness stand and threatened a witness when he was shot and killed by a federal marshal. Afterwards, the nurse posted a public Facebook comment that referred to the nationality of the involved gang member and said “Kill Them All.” The nurse’s employer, a Utah public hospital, put the nurse on leave while investigating the matter. The nurse eventually chose to resign his position. Here is a link to a recent article about the matter: http://www.sltrib.com/sltrib/news/57855398-78/shrum-comment-angilau-hospital.html.csp.

NEW MODEL COBRA NOTICES ARE AVAILABLE: The United States Department of Labor (DOL) has made available new model COBRA benefits notices. According to DOL, “The updates make it clear to workers that if they are eligible for COBRA continuation coverage when leaving a job, they may choose to instead purchase coverage through the Health Insurance Marketplaces” available under the Affordable Care Act. You can read an article about the new model COBRA notices here: http://www.shrm.org/hrdisciplines/benefits/Articles/Pages/model-COBRA-notices.aspx. You can obtain copies of the new model notices and related information here: http://www.dol.gov/opa/media/press/ebsa/ebsa20140750.htm.

IF YOU SIT ON YOUR EMPLOYER FMLA RIGHTS YOU MAY LOSE THEM:  A federal court in Illinois recently ruled that an employer was precluded from challenging in court an employee’s use of Family and Medical Leave Act (FMLA) leave beyond the statutory allotment because the employer had neglected to challenge the employee’s right to leave until “months and months” after the fact and failed to seek additional needed information from the involved employee. For the same reasons, the court also disallowed the employer’s claim to recoup health insurance premiums paid on behalf of the employee during the leave beyond the entitlement period. The court concluded that “There must be some ability for an employee to rely on a grant of leave without risk of retroactive revocation months down the road.” The lesson for employers? You cannot sit on your possible rights under the FMLA, act on them belatedly and expect a court to support your decision. Employers need to timely and proactively manage the FMLA leave of their employees.

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Author

mikeAttorney Michael
Patrick O'Brien

Mike O’Brien is an experienced and accomplished employment attorney, media lawyer and courtroom litigator.  He is active in SHRM and has received the highest possible reviews from rating services like Martindale - Hubbell (AV rating), Chambers USA, Utah Business Legal Elite, Best Lawyers in America, Who’s Who Legal USA, and SuperLawyers.  HR Executive Online has named him as one of America’s most powerful 100 employment lawyers, but keep in mind, this does not mean he is good at moving heavy furniture.

Awards and Recognition

OBrienAV

OBrien Best

Chambers 2011 Attorney

Super Lawyers
Michael Patrick O'Brien
 

Best Lawyers In America, “Salt Lake City Best Lawyers Employment Law Lawyer Of The Year,” 2011-2012

Best Lawyers In America, First Amendment Law, Labor And Employment Law, 2005-2012

Chambers USA, Labor & Employment, 2003-2011

Employment Lawyer Of The Year, Utah State Bar, 2001

Human Resources Executive, Nation’s Most Powerful Employment Lawyers In America, 2010

Mountain States Super Lawyers, 2007-2012

Utah Business Magazine, Legal Elite, Labor And Employment, 2006-2012