With summer in full swing, there is wide-spread ignorance (and non-compliance) on the issue of unpaid interns.  The Department of Labor (DOL) issued a fact sheet in April of 2010 regarding unpaid interns to help employers clarify whether their specific scenario should actually be deemed as employment.  According to the DOL, interns may be unpaid when they receive training for their own educational benefit, should the training meet these six criteria:
  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.
These six factors emphasize that the internship is for the benefit of the intern, not the company, and that the intern does not displace any employees or potential employees.   In most situations, employers receive some form of advantageous work from an intern, which is a very high standard that eliminates a large number of non-paid internship “opportunities.”

Overall, employers need to keep in mind that:
  1. Interns cannot waive their rights to the protection of the law—they may agree to be an unpaid intern at first, but if the relationship turns sour (or the person really needs money), there is nothing to stop them from contacting the DOL and triggering a company-wide audit of all wage and hour issues.
  2. Unless the intern is basically just observing and really doing nothing else, the person will likely be deemed an employee. 
  3. In the vast majority of situations, it is probably safer to pay the individual.  If desired, the person can be paid minimum wage in order to keep costs low.
While the DOL has had larger enforcement priorities in the past, there are signs that scrutiny of violators will continue to increase due to a difficult economy and unpaid interns perhaps taking away paying jobs.  To avoid being penalized for your illegitimate unpaid internships, please read the DOL Fact Sheet or contact one of ESG’s Human Resources Consultants at 888-810-8187.

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(Adapted from “How to Deal with Work-Faith Conflicts?” –

Employers seem to be increasingly challenged by the duty to accommodate work-faith conflicts, as the Equal Employment Opportunity Commission (EEOC) has seen a drastic increase in religious bias lawsuits filed over the last 10 years.  Perhaps employers are simply not well-informed on how to handle religious-based issues at work.  As such, here are some tips to help understand how employers should handle conflicts at work involving religion.

Accommodations/Undue Hardship

Much like the Americans with Disabilities Act (ADA), employers are expected to accommodate an employee with a religious conflict.  If an employee informs his boss that his religious beliefs do not allow him to work on Sundays, the employer must make its best effort to accommodate the employee.  If, however, there is an undue hardship to the employer by accommodating an employee’s religious preference, then the courts will not force employers to accommodate. 

Example: For a number of years, Federal Express has not allowed employees to take any days off for the entire month of December because of the heavy workload.  The EEOC sued on behalf of an employee that had religious bans for working Sundays.  Federal Express successfully demonstrated an undue hardship based on the heavy workload and the fact that the policy was consistent with how it treated each employee in this regard, as every employee was required to work 7 days a week in December.  The EEOC lost this case in court. 

Most employers should be able to offer alternative work schedules when running operations 7 days a week, or perhaps provide an opportunity for employees to attend religious meetings or worship sessions that are only held on Sundays.  For more accommodation ideas, please contact one of our ESG Human Resources Consultants at 888-810-8187.

Searching for Candidates

If the thought has crossed your mind to perhaps specify the requirement to work on Sundays as a part of the job description, do not act upon that thought.  This would prevent otherwise- qualified candidates from applying for the job, just as would specifying gender, race, age, or any other discrimination-related criteria – and may open the door for a religious discrimination case.  If a candidate states in an interview that she is unable to work on Sundays because of her faith, you must do your best to accommodate and cannot refuse to hire her if she is otherwise qualified for the job. 

Tip to employees: Wait to discuss your religious accommodation needs with your prospective employer after having a preliminary job offer, as the employer can cautiously outline other business-related criteria for having hired another candidate, should they be made aware of your accommodation needs before making the job offer.

For more information about employers’ duties and expectations when dealing with work-faith conflicts, please contact one of ESG’s Human Resources Consultants at 888-810-8187.

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The ongoing battle between employees’ rights to “freedom of speech” and employers’ rights to control what their employees say about the company in social media outlets can make for an interesting debate.  As an employee, getting something off your chest by venting via social media is not usually the best idea – and, despite your claim of it being your constitutional right, may get you fired.

The media has covered a number of cases over the years of employees who were terminated for what their employers deemed “inappropriate content” posted online.  Here are some examples, to name a few:

  • Michael Hanscom of Microsoft – posted a picture on his personal blog of Mac G5 computers that were on the loading doc for Microsoft and added the caption, “Even Microsoft wants G5s.”  It was seen as a security violation and, although he wasn’t told to remove the blog post, he was asked to leave Microsoft premises.
  • Matt Brown of Starbucks – complained about his job on his personal blog (according to Brown, he was rude and vulgar but didn’t think anyone would ever see it other than his family and 10 friends).  He was fired after his boss discovered it.
  • Ellen Simonetti of Delta Airlines – flight attendant that documented her life and work experiences on her personal blog.  Although she never mentioned the airline by name, she posted “inappropriate” photographs of herself in a Delta uniform on her blog and was subsequently terminated.

If you have the inkling to vent about your employer online, you may want to take these suggestions into consideration:

  1. Determine first whether or not you’d be able to voice your frustrations outside your boss’s door without receiving some form of disciplinary action.

  2. Be aware that anything that may be considered “disloyal” to your company may be in violation of the company’s social media policy and could subject you to disciplinary action.  Violations of your “Duty of Loyalty” may include:

      • Competition with your employer;
      • Speaking ill of your employer;
      • Disparagement of employer services or products;
      • Disclosure of trade secrets or other confidential information;
      • Insubordination;
      • Neglect;
      • Disruption of employer-employee relations; or
      • Dishonoring the business name.

Before you start throwing your constitutional entitlement to be able to “say what you want to say,” think about the consequences of your actions.  And remember, the first amendment actually prevents the government from abridging your freedom of speech – not your employer (unless, of course, the government is your employer).

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Adapted from "Rules for Successful Wellness Programs" -

Struggling to receive real returns from your organization’s health and wellness program? According to Henry Albrecht, CEO of Limeade Inc., the real key to a wellness program’s success is employee engagement – interconnecting health, work, and life as a whole. Employees must want to participate, be encouraged to participate, and receive the right extrinsic and intrinsic rewards to stay motivated. Although it may sound complicated, Albrecht has five simple ‘rules of engagement’ to help maximize your company’s performance in achieving its health and wellness goals. 
  1. Be Relevant. People respond to what’s important to them. The most successful programs:
    1. Address peoples’ internal interests and needs, such as wanting to look better, having more energy, or simply enjoying life more;
    2. Align clearly with corporate goals, such as lowering turnover or decreasing healthcare expenses; and
    3. Link to meaningful rewards or incentives, such as insurance premium savings, extra days off, cash, gift cards, etc.
  2. Make It Social. Human beings are social animals; they change their behavior most effectively by watching peers – people they like and respect – who model, support, and encourage a certain behavior. Social networks are notorious for both positive and negative behaviors: exercise groups, fashion, obesity, alcohol consumption, smoking, etc. To make your wellness program successful, you need a “we’re all in this together” approach with health-enhancing activities or challenges that are enhancing within a social network.
  3. Stay Positive. Reward rather than punish. Encourage rather than threaten. A positive attitude is infectious and can help reframe thinking away from what’s broken toward what’s possible.
  4. Integrate, Integrate, Integrate! Don’t overcomplicate by offering too large a variety of health and wellness options/ideas. Some large employers contract with numerous vendors to provide a variety of screenings, vaccinations, EAP, disease management services, etc. Too many options end up unused (not to mention costly) and find themselves buried in your employees’ filing cabinets. Find partner-friendly vendors who will help employees integrate their offerings in a simple way.
  5. Play It Safe. Be sure you are following all of the regulatory compliance regarding data, that the incentives have rules that are defined, reasonable, and fair, and that communication is consistent and clear.
Health and wellness programs are a great asset for companies to help maintain a healthier workforce, leading to higher productivity, reduced sick days, greater morale, and an overall decrease in health insurance utilization and cost. For more information on health and wellness programs, please contact one of our ESG Human Resources Consultants at 888-810-8187.

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For many employers, completing Form I-9 when a new employee is hired is as automatic as shaking the new employee’s hand to welcome him/her aboard.  For others, it takes a great deal of effort and pain to not only get an employee to bring in appropriate identification forms, but to even remember to complete this form within the first 3 days of the employee being hired.  To help you understand its importance, let’s take you back to the basics.

Under the federal Immigration Reform and Control Act of 1986 (IRCA), all employees must complete Form I-9, the “Employment Eligibility Verification Form,” issued by the Immigration and Naturalization Service.  On this form, applicants attest under penalty of perjury that they are either U.S. citizens or aliens authorized to work in the United States.  The form also lists certain documents that applicants must provide to verify their identity and work eligibility.  IRCA makes it illegal to hire undocumented workers, and the employer is responsible for ensuring that Form I-9 is properly completed and the required documents are produced.

Proper completion of Form I-9 for each employee ensures compliance with employment and immigration laws.  Completing these forms appropriately protects you, the employer, from potential fines and business closures due to illegal hiring, particularly in the event of an ICE audit (just ask Chuys Restaurant or Pei Wei Asian Diner).

As a co-employer, ESG needs to receive a completed Form I-9 for every employee working for your Company within three days of the employee being hired to ensure compliance with IRCA.  Although I-9 rules do not require employers to keep copies of employee documents, USCIS does require that copies are kept of a permanent resident card, employment authorization documents, or passports used as part of the photo matching E-Verify process.  To treat all employees consistently and to avoid any appearance of discrimination, ESG requests copies of all employees’ ID forms used in the Form I-9 process, which will also help to ensure the employees’ documentation has been accurately recorded.

Helping you maintain compliance is part of ESG’s business purpose.  For more information, please contact us at 888-810-8187.

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Adapted from “Do Your Job Descriptions Still Fit?” by Tillman Y. Coffey, Fisher & Phillips LLP

Almost everyone has clothes in their closet that no longer fit. Perhaps some of those clothes never really fit --- and, now that time has passed, you no longer like the style.  Admit it: things change, whether it be fashion or you.  Now consider your Company’s job descriptions. Do they still fit?  Did they ever really fit?  Do they even exist?  Here are a couple of reasons why you should not only have job descriptions, but why they need to match the actual job duties performed.

Consider the ADA. The ADA protects employees and applicants who can perform essential job functions with or without a reasonable accommodation. Oftentimes, the issue in an ADA case is determining what job duties are “essential.” Employers who use job descriptions have the opportunity to set forth those essential job functions in writing before controversy arises. However, for the job description to be of value, it must accurately describe and list the essential job functions of the position. If a job description is not altered to fit the evolving duties (such as removing a lifting restriction that is no longer necessary because of updated machinery), you may be losing out on great, qualified applicants who are unable to meet such restrictions.

The same concern exists under the Wage and Hour law. Many employers determine exempt versus non-exempt status based on a job description. The danger in doing this is that, much like essential job functions, the primary duty described in the job description may not actually be performed by the person in the position. If this is how you have determined your employee classifications, be sure that the primary job duties – i.e. those that they actually perform – are stated correctly in job descriptions.

So…how do I ensure my job descriptions still fit?
  1. Solicit input from both supervisors and employees to learn the actual job duties performed
  2. Ensure the job description includes all essential job functions, including “mental” requirements.  Consider the following tasks that may (or may not) be essential to the job:
    1. Attendance
    2. Ability to understand and follow instructions
    3. Ability to concentrate
    4. Ability to get along with others and be part of a team
  3. Change the job duties or the job description, as appropriate
  4. Review job descriptions on a regular basis to ensure the right fit
There is no doubt that a bad job description may be hurting you, either from a liability perspective or on the recruiting side.  Go through your “closet,” look for those job descriptions that no longer “fit,” and make the necessary alterations. For more information, please contact ESG at 888-810-8187.  

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