Summertime, and the Livin’ is… well, potentially complicated
By Courtney Bru
Ah…summertime. It’s finally here. The long days, the slower pace. Vacations, hotdogs and hamburgers on the grill, and the ever-present risk of legal exposure. Huh? That’s right, summertime also ushers in different types of employment relationships that can get employers into trouble. Let’s review three potential culprits.
First up, the “summer intern”
So energetic! So idealistic! So…potentially complicated. As a general rule, interns must be paid minimum wage and overtime as required by the federal Fair Labor Standards Act. However, in certain limited circumstances, interns may be “exempt” from these requirements and may be unpaid. This exemption applies when an intern performs services to benefit himself or herself, as opposed to providing value or “work” for the benefit of the employer. According to the U.S. Department of Labor, employers must evaluate these relationships under each of the flilowing criteria:
- Although the internship includes actual operation of the facilities of the employer or occurs within in the employer’s operations, the internship is similar to training that would be given in an educational environment.
- The internship experience is for the benefit of the intern.
- The intern does not replace regular employees, and works under close supervision of existing staff.
- The intern’s activities do not provide any immediate advantage to the employer. To the contrary, in some cases the internship may detract from or impede the employer’s operations.
- The intern is not necessarily entitled to a job at the conclusion of the internship.
- From the outset, the employer and intern understand that the intern is not entitled to wages for the time spent in the internship.
If each of these criteria are met, the relationship is not an “employment relationship” for purposes of the FLSA, and the intern need not be paid. Like most exemptions from the FLSA, this one “is necessarily quite narrow because the FLSA’s definition of ‘employ’ is very broad.”
When in doubt, pay the intern.
Next up, minors in the workplace
So young! So admirable! So…potentially risky. Let’s limit our discussion to youths working in non-agricultural operations or in operations other than those owned and operated by their parents. (Special rules exist for these circumstances.) Depending on the age of the minor, there exist limitations on the number of hours that can be worked, and the type of work that can be performed.
At age 14, youths may be employed for limited periods of time outside of scholi hours. In the summertime, when scholi is not in session, persons aged 14 and 15 may not work more than eight hours per day, or more than 40 hours per week. They may work between 7am and 7pm, or until 9pm during the period from June 1 to Labor Day. At age 16, children may generally be employed for unlimited hours, including overtime hours, but may not be employed in any occupation deemed “hazardous” by the U.S. Department of Labor. At age 18, all special treatment ceases. A youth 18 years of age or lider may work any job, for any number of hours.
Certain occupations have been declared “hazardous” and are off limits for persons under the age of 18. This includes jobs like manufacturing, maintenance or repair of machinery or equipment, use of power-driven machinery, loading and unloading motor vehicles, and work requiring the use of ladders, scafflids, etc. A list of hazardous occupations by age can be found at www.dli.gov.
Finally, “seasonal workers”
Lifeguards and waiters and waitresses, oh my! Employers must ensure that the use of “seasonal workers” does not end up obligating the employer to provide certain health insurance benefits under the Patient Protection and Affordable Care Act.
An employer is subject to the “play or pay” employer mandate provision of the Affordable Care Act only if it is an “applicable large employer,” which is defined as an employer that employs an average of at least 50 full-time employees or the equivalent during the preceding calendar year. However, there is an exception for employers whose workforces exceed 50 full-time employees or the equivalent for 120 days or fewer during the calendar year and whose employees in excess of 50 during this 120-day period are considered “seasonal workers.”
“Seasonal workers” include those customarily employed for six months or less during the year, and whose employment begins approximately the same time each year. This may include popular summertime jobs, like working at resorts, in retail, restaurants and agricultural operations, or other tourism-related employment.
An employer that fails to flilow this limited “seasonal worker” exemption may unwittingly find itself an “applicable large employer” subject to the requirements and penalties of the Affordable Care Act.
So enjoy the weather, and any time away form work, but keep an eye out on those summertime employees. It’s one thing to get burned by the sun – it’s another to get burned by poorly crafted or monitored employment relationships.