This weekend is the start when many college students are returning home with the end of spring semester 2012. It’s also the time many companies offer internships to “out of school” students. Unpaid internships are universally seen as great opportunities for students to acquire valuable job skills, experience, providing genuine and verifiable learning opportunities and giving the student intern a considerable advantage over those competing for jobs right out of college.

The downside to hiring unpaid interns for employers is navigating the potential mine field commonly known as the Fair Labor Standards Act (FLSA) making sure you are not violating the law. Misclassifying an employee as an unpaid intern could deny the employee from earning the federal minimum wage as well as the potential for overtime wages. Violation of the FLSA could conceivably result in costly litigation, civil fines and possibly criminal prosecution for the employer.

Employers can however take steps to insure that their classifications comply with the FLSA. A well designed internship program is one that complies with the Department of Labor (DOL) guidelines for unpaid internships. To insure compliance and potentially avoid problems, an employer should implement an unpaid internship program which includes the following DOL guidelines:

• Provide training similar to that which would be given in an educational environment and which is primarily for the benefit of the intern;

• Provide the intern with close and constant supervision by regular employees; and

• Make sure the intern understands the internship is unpaid and that there is no guarantee of regular employment at the conclusion of the internship.

To ensure proper classification of unpaid interns employers should:

• Work with educational institutions to ensure that the internship is academically oriented for the benefit of students;

• Make sure interns do not perform the tasks that regular employees would normally perform; and

• Put the terms of the unpaid internship and have the intern acknowledge the internship is unpaid and that he or she is not guaranteed regular employment

Having an internship program with the above guidelines in place may protect employers from liability for FLSA violations arising out of internship programs.

Employer to Job Applicant – Give me full access to your social media accounts!

It is becoming common practice for some employers to screen job applicants by reviewing social media sites such as Facebook or Twitter or to monitor employee’s
behavior on these sites.  Many of these sites have privacy settings which allow users to limit access to their personal profiles and postings on their accounts. Not being able to review potential employees’ Facebook pages or Twitter accounts, employers have begun requiring job applicants to disclose their social media passwords or provide full access to their accounts during the interview process.

There is much controversy stirring up not only in the media but in several State Houses as well as in Congress.  Several federal lawmakers have requested the U.S.
Department of Justice to investigate whether this employer practice violates any federal statutes, such as the Stored Communications Act or Computer Fraud and
Abuse Act and many states have proposed legislation which would prohibit this employer practice.

There are many diverse opinions surrounding social media privacy and the workplace.  There are those who maintain that employers are justified in conducting
social media background checks in an effort to protect their business risk.  The other side of the social media “coin” argues that job applicants should not have to
choose between pursuing a job opportunity and sharing sensitive personal information.  Facebook issued a statement opposing the practice of employer-mandated access to social media as an intrusion of privacy.

What impact social media has on labor and employment law and whether the state legislatures or governmental agencies will regulate an employer’s use of social media remains to be seen.  In any case, employers need to exercise caution in using social media as a human resources tool for conducting background checks.   These social media checks should be used in a consistent manner to sure that any pre-employment inquiry about a candidate is purely job-related to avoid the risk of discrimination claims.

Employers tapping into a candidate’s social media account could discover information about the candidate that it was not intending to view such as age, religion, nationality, ethnicity, marital status or sexual orientation.  All information should be independently verified before an employment or personnel decision is made.

One final caution, employers should continue to be aware of the NLRB’s position on social media which increases the potential for unfair labor practice charges for both union and non-union employers.

Social Media and your employees! Social Media has not only knocked on the door but come in and has taken a seat!

By now most employers are “or should be” aware that their employees are visiting at least one and probably more social networking sites either outside of the workplace or during
work hours.

Concerned with what their employees post on these sites many employers are incorporating “Social Media” policies in their handbooks.  Will your social media policy pass the grade if audited by the National Labor Relations Board (NLRB)?

The National Labor Relations Board (NLRB) in response to employee complaints has asked several regional offices to submit employer social media policies for review.

In the past the NLRB took the position that social media postings were the same as “water cooler conversations – conversations between employees at work” and in general should be governed by the “old” rules under the NLRB.

An important distinction however, between social media and water cooler conversations – social media is not in the workplace, rather it goes out over the Internet and comments may not necessarily be directed towards the workplace, employer or employees.

Realizing social media goes out into the world, the NLRB recently reviewed several cases that concerned such policies and may be adjusting its’ standards (employers don’t get too excited, NLRB isn’t drastically changing the rules) since such statements have the potential to cause greater harm to the workplace than water cooler conversations. 

As a precaution your handbook should have both a Social Media policy and an Anti-Harassment policy.  A few statements to include in your policies:

• Company “prohibits employees from sharing confidential and proprietary company information on line”;
• Company “prohibits employees from using vulgar or obscene language on line or posting intimidating or harassing materials (make sure to use NLRB approved language such as “prohibiting use of social media to post or display comments about coworkers, supervisors or the employer that are vulgar, obscene, threatening, intimidating, harassing or a violation of the employer’s workplace policies against discrimination, harassment or hostility on account of age, race, religion, sex, ethnicity, nationality, disability or other protected class, status or characteristic”;
• Company states “online harassment is a serious matter and treated the same as all other harassment claims”

As a precaution any handbook or policy should be reviewed by legal counsel.