Summer Employment – Quick Tips to Avoid Common Pitfalls

With students out of school and seasonal employees ready for summer work, shifting summer schedules, and perhaps relaxed dress codes, it’s important not to lose sight of legal issues and requirements. The following briefly highlights several common summer employment pitfalls.

Paying Your Summer Interns/Seasonal Employees

The law narrowly limits who can work for free. Ultimately, summer help should be compensated.
Regardless of Title, Workers May Not Qualify as “Unpaid Interns”
Although it seems like a win-win to hire students to work in exchange for “experience,” an employer’s ability to do so is limited. Both federal (DOL) and state (DSLE) law set these requirements for unpaid internships: (1) work similar to a vocational program, (2) internship for the benefit of the intern, (3) intern cannot displace a regular employee, (4) Employer cannot derive benefit from intern’s work, (5) intern not entitled to a job at the end of the internship, and (6) all understand that intern is not entitled to wages. (DOL Fact Sheet #71; DSLE Opinion Letter 2010.04.07.)

Workers Might Not Qualify as “Volunteers”

A “volunteer” is someone who performs work for a public service, religious or humanitarian reason without expectation of compensation. Importantly, an individual cannot “volunteer” to work at a for-profit company. (DLSE Opinion Letter 1988.10.27.)
Important Details to Remember When Hiring Minors
Most anyone under 18 is considered a “minor.” The FLSA prohibits employment of minors under 14 with limited exceptions. (Labor Code §1286(c).) Minors between the ages of 14 and 18 may work in certain occupations after the employer obtains the appropriate work permit. (Cal. Labor Code §§1294.3, 1308.5.) Even with a permit, there are various jobs a minor may not perform, including, for example, construction work. (Cal. Labor Code §§1292-1297, 1308.2, 13.08.3; 8 Cal.C.Regs §§11701-11707; 29 USC §203(l).) Under certain circumstances, minors may be paid sub-minimum wages – discuss this with legal counsel first! (29 USC 206(g).)

Summer Schedule Tips

With summer childcare schedules and other shifting obligations, employees may have unique scheduling needs during the summer. It’s great to be flexible, but watch out for these common issues and pitfalls:

Overtime Pay Cannot Be Waived

If an hourly employee changes his or her schedule to work the same hours over the course of fewer days, he or she is entitled to overtime pay for all hours over 8 worked in a single day. He or she cannot “waive” the right to receive overtime for those hours.

–Exception “Makeup Time:”

“Makeup time” is a temporary alternative to overtime (intended for occasional use) that allows an employee to request time off for a “personal obligation” and make up the time on another day without receiving overtime pay. If you choose to allow makeup time, you must comply with the following rules: (1) you cannot require or encourage employees to use makeup time, (2) makeup time cannot exceed 11 hours of work in a single day or 40 hours in the week, (3) makeup time must be within the same work week as the time off, and (4) the employee must provide a signed request for each occasion that he or she wants to use makeup time. (Labor Code §513.)

–Compensatory Time Off Prohibited:

With extremely limited exceptions, the practice of giving compensatory time off (paid time off from work in exchange for the equivalent amount of time to the extra hours worked) in lieu of overtime payments is prohibited in California. (DLSE Enforcement Policies and Interpretations Manual, §§6.1, 6.1.1.)

Use of “Sick” Time:

What should you do if you suspect an employee is using “sick time” for time off other than “sick,” such as for a beach visit or other non-health-related events? First, employees are not entitled to use their sick days until their 90th day of employment, so seasonal employees may not have accrued sick days to use in the first place. If they are entitled to paid sick leave, it is inadvisable to take disciplinary action related to its use. Section 245.6 of the Labor Code authorizes use of sick time for a wide range of reasons (which can include mental health reasons), and also creates a presumption that any disciplinary action taken within 30 days of use of sick days is “retaliatory.” Moreover, asking questions about why an employee took a sick day may violate privacy laws. The risks of taking disciplinary action for what appears to be “misuse” of sick days are extremely high.

Dress Code Issues

An employer can relax its dress code for beach season, but carefully consider and communicate the rules to employees in writing. Some important factors regarding dress codes include:

Equal Application:

Dress codes must apply equally to everyone. For example, a rule requiring tattoos to be covered must include all tattoos, not just “inappropriate” ones. While one may arguably set reasonably differing clothing or grooming standards for men and women, it is not advisable to do so. Although the 9th Circuit has upheld policies permitting women to wear their hair long while men must keep their’s short (Jesperson v. Harrah’s Operating Co. (9th Cir 2006) 444 F.3d 1104), California law states that women may not be prohibited from wearing pants to work. (Gov’t. Code §12947.5.) This indicates a conflict in the law with regard to gender-based standards. The best practice is to keep your dress code as equally applicable as possible.

Reasonable Accommodations Required:

FEHA protects religious dress and grooming practices. Regardless of your dress code, an employer must reasonably accommodate an employee’s customs of dress or appearance based upon religious beliefs, unless doing so creates undue hardship or safety concerns. (Gov’t. Code §§12926, 12940.)

Final Words of Advice

Penalties for violating state and federal labor laws can be severe, and even one claim filed against an employer could cost more than the amount saved by underpayment or maintaining illegal internships. While this article provides some food for thought and highlights potential pitfalls which may arise in summer, an employer should always consult with legal counsel if there are any questions about whether business practices are compliant.