HR and the Law in the News
May 2007, Volume 6, Issue 5

FiveL Company's consulting services include: • Interactive, industry specific, and nationally recognized management training programs; • HR Compliance reviews, handbooks, policies & procedures; • Affirmative Action Plans for Small Business • Salary surveys and compensation studies; • ...and more. • Visit www.FiveL.net for more information.
To Pay or Not to Pay: Summer Interns	1
Hot Hits! Education Corner	2
OSHA 300A Summary Logs - Come on Down!	2
NOTE: FiveL Has Moved!	2
Spotlight!	2

To Pay or Not to Pay: Summer Interns

It's that time of year when questions arise about how to classify the working relationships of summer interns; are they employees, paid or unpaid interns, volunteers or something else? This article is reprinted from the August 2006 edition of this newsletter.

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Each summer it seems this question arises, "Do we have to pay our summer intern?" And, of course, you know the answer is two definitive words..."It depends." Take comfort though. If you have asked this question then you are not alone. Even the U.S. Department of Labor responded to a very similar inquiry in an April 6, 2006 Opinion Letter.

To answer this question, an employer should follow the Wage and Hour Division's six factor test. If all of the following six factors are met, then an employment relationship does not exist, which means the federal Fair Labor Standards Act does not apply and you do not have to pay the intern.

The training must be similar to what would be given in a vocational school or academic educational instruction;

The training must be for the benefit of the trainee or student;

The trainee or student must not displace regular employees, but work under their close observation;

The employer that provides the training must derive no immediate advantage from the activities of the trainee or student, and on occasion the employer's operations may actually be impeded;

The trainee or student is not necessarily entitled to a job at the conclusion of the training period; and

The employer and the trainee or student understand that the trainee or student is not entitled to wages for the time spent in training. (Field Operations Handbook, Ch. 10b11 )

That is the test for interns. But what about training for your current employees? With the increased focus and attention given to matters of immigration and workplace diversity, more and more employers are choosing to provide educational opportunities for their employees. Programs like ESL (English as a Second Language), GED prep courses, and basic money management are becoming fairly common workplace offerings. So the next question becomes, "When must attendance in lectures, meetings, training programs or similar activities be counted as working time for calculating the hours worked for a non-exempt (hourly) employee?" You know the answer (two words) so let's just go right to the test.

In order for such time to not be working time for which the employer must pay the non-exempt employee, all four of the following criteria must be met:

Attendance is outside of the employee's regular working hours;
Attendance is in fact voluntary;
The course, lecture, or meeting is not directly related to the employee's job; and
The employee does not perform any productive work during such attendance.

The DOL also addressed this issue in a March 3, 2006 Opinion Letter.

Want to Learn More? Ms. Walters will be presenting, "Are You My Employer? Managing Your Non-Traditional Workforce" at a seminar sponsored by Maryland Works, Inc. in Columbia, MD on May 23rd. See the "Hot Hits" section of this newsletter for more public seminars and presentations.

Related to this topic, Ms. Walters wrote, "Are You My Employer? Managing Your Contingent Workforce" published by the Employment Management Association in June 2005; she has presented at national and regional conferences; was interviewed and quoted in HR News in February 2006; and was recently invited by the Society for Human Resource Management (SHRM) to testify before a Congressional committee on the challenges employers face when trying to properly classify workers.

Hot Hits! Education Corner

May's Public Seminars/Speaking Engagements:

Thursday, May 3rd, "HR Jeopardy: An Employment Law, Legislative and Regulatory Update," presented for the Anne Arundel SHRM, 5:30 - 8:00 p.m.

Monday, May 21st, "HR Jeopardy: An Employment Law, Legislative & Regulatory Update," presented during the 55th Annual Conference of the Association of School Business Officials (ASBO), 2:15 - 3:45, Ocean City, MD.

Wednesday, May 23rd, " Are You My Employer? Managing Your Non-Traditional Workforce," 9:00 - noon, sponsored by Maryland Works, Inc.

Thursday, May 24th , "HR Jeopardy: An Employment Law, Legislative and Regulatory Update," presented for the Frederick SHRM 11:30 - 1:30.

Client Training Programs :

"Addressing & Documenting Performance Issues "

" Maintaining an Inclusive Workplace " (3)

"HR and the Law for Managers" (2)

"Coaching, Counseling & Correcting "

NOTE: FiveL Company Has MOVED!

The email and website addresses remain the same but please make note of the following new contact information!
P.O. Box 1325 • Westminster, MD 21158
410-848-4721 (ph) • 1-877-FiveL HR (toll-Free) • 410-857-4951 (Fax)

OSHA Summary Log 300A - Come On Down!

If you are a covered employer with 11 or more employees and not otherwise exempt, you were required to post the OSHA Form 300A, "Summary of Work Related Injuries and Illnesses" on February 1st. That posting may now come down as of April 30th. Remember, however, to maintain your 300 Log and 301 Reports throughout the year. For more information on OSHA's recordkeeping requirements visit http://www.osha.gov/recordkeeping/index.html

Spotlight!

Following a pilot presentation of "HR and the Law for Managers" presented for Legg Mason's HR Team, Sarah Steinberg recently wrote, " We really enjoyed the session! It was very interesting, funny, really kept our attention, and we learned alot!" Thanks Sarah!