You should pay attention to this post if you have unpaid interns

According to Law.com, wage and hour litigation is big, and getting bigger. One area that has been poised for a take-off for a couple of years is unpaid internships. Three recent filings illustrate the dangers of using unpaid interns in your business:

• A former unpaid intern for the “Charlie Rose” show has filed a lawsuit against the host and his production company. According to Steven Greenhouse at the New York Times Media Decoder Blog, the former intern claims that she was not paid at for the 25 hours a week she worked in the summer of 2007. The lawsuit seeks a class action on behalf of all unpaid interns who have worked for the show since March 2006.
• A former unpaid intern for the fashion magazine Harper’s Bazaar filed a similar lawsuit, claiming she worked full-time without any pay. Steven Greenhouse at the New York Times Media Decoder Blog quotes the lawyer who filed the lawsuit, “Unpaid interns are becoming the modern-day equivalent of entry-level employees, except that employers are not paying them for the many hours they work.”
• Last year, two interns who worked on the film Black Swan sued Fox Searchlight Pictures making similar claims.

The New York Times’s resident ethicist, Ariel Kaminer, calls this issue “the internship rip-off.”

Two years ago, I wrote how the Department of Labor was targeting employers who use the services of unpaid interns. As these examples show, workers (and their lawyers) have caught up.

In response to this spate of lawsuits, publishing giant Condé Naste has revised its guidelines for the use of unpaid interns. From The Atlantic, Condé Naste’s interns:

• Cannot stay at the company for more than one semester per calendar year.
• Must complete an HR orientation about where to report mistreatment or unreasonably long hours.
• Cannot work past 7 p.m.
• Must receive college credit.
• Must be assigned an official mentor.
• No personal errands.
• Will be paid stipends of $550 per semester.

These procedures might not be right for your organization. But, they highlight that you need to be thinking about these issues if you are a private sector, for-profit entity using, or considering using, interns. The rules haven’t changed; only they are now more widely known and are being enforced.

The best time to settle a case

I’ve long believed that the best time to settle a case is while summary judgment is pending. It’s when both sides have the most risk. The employer has the risk of a jury trial if the court denies the motion, and the employee has the risk of walking away with nothing if the court grants the motion.

Case in point—Webb v. Kentucky St. Univ. (6th Cir. 3/15/12) [pdf]. In Webb, the court granted the employer’s summary judgment motion while the parties were actively mediating the case. On appeal, the plaintiff argued that court abused its discretion in granting the motion while mediation was ongoing, which, in the plaintiff’s words, “makes a mockery of the mediation process.” The court of appeals disagreed:

Where, as here, the district court properly granted the summary judgment motion, the mediation process is not “sabotaged.” Instead, the district court does not waste judicial resources by preparing for trial where no genuine issue of material fact exists and the opposing party is clearly entitled to judgment as a matter of law.

The next time you receive settlement resistance from a plaintiff while a motion for summary judgment pends, you might want to forward a copy of Webb. Maybe it will grease the skids to a resolution.

WIRTW #217 (the “Statler and Waldorf” edition)

News moves fast. In today’s 140 character news cycle, a story has legs if it’s covered for more than a day. That we are on day two of the muppet manifesto tells you that this story resonates. Here’s some additional employment and HR related (and not so employment and HR related) coverage of Greg Smith’s noisy resignation from Goldman Sachs:

• Why I am leaving the Empire, by Darth Vader — from the daily mash
• Atomic Resignation Letters and the Disconnect Between Corporate Values and Performance… — from The HR Capitalist, Kris Dunn
• Disgruntled Goldman executive inspires copycats — from CareerDiva Eve Tahmincioglu
• Burning Bridges: The Perils of Ripping Your Employer Heading Out the Door — from TLNT
• Psychopaths on Wall Street — from Harvard Business Review
• Workplace experts weigh in on commentary by departing Goldman Sachs executive Greg Smith — from Corilyn Shropshire at the Chicago Tribune
• Bronze Medal Ping Pong GOD Bravely Resigns From Goldman Sachs — from Deadspin

Here’s the rest of what I read this week:

Discrimination

• Flyer claims Chick-Fil-A asks potential hires about sexual history — from Eric Meyer’s The Employer Handbook Blog
• Believe It, Baby. Subjective Belief of Discrimination Ain’t Enough — from Molly DiBianca’s Delaware Employment Law Blog
• Oy Vay! Jewish Nursing Home Owns Up to Denying Religious Accommodation — from Joe’s HR and Benefits Blog
• What if you replace an older worker with another older worker? — from HR Cafe
• Fourth Circuit Emphasizes Necessity of Complaining about Sexual Harassment — from Maryland Employment Law Developments
• Paula Deen (insert cooking pun) Sexual Harassment Lawsuit — from Phil Miles’s Lawffice Space
• ESPN’s Stance on Discriminatory Remarks: Hitting the nail on the head, or a lack of consistency? — from The L•E•Jer

Social Media & Workplace Technology

• Don't be a twerp when you tweet — from Robin Shea’s Employment and Labor Insider
• If you’re a worker, you’re being Googled — from MarketWatch
• What Should You Do If Your Employer Asks For Your Facebook Password? — from ReadWriteWeb
• Infographic: How to train employees to handle social media — from Ragan
• Solutions to Mitigating Risk of Corporate Social Media — from Jessica Miller-Merrell’s Blogging4Jobs
• This Is Everything You Need To Know About Pinterest (Infographic) — from TechCrunch
• Pinterest for Social Recruiting — from Kara Mignanelli at Social Axcess
• When it comes to Social Media and Recruiting…Don’t Overthink It … Just Do It! — from Fistful of Talent

HR & Employee Relations

• Does It Matter That American Workers Get So Little “Official” Time Off? — from TLNT
• The Magic of Doing One Thing at a Time — from Harvard Business Review
• 17 Ways to Show Your Employees Appreciation — from Workplace Insights
• Mark Twain on employment reference law — from Walter Olson’s Overlawyered
• Turning a Termination into a Training Opportunity — from Dawn Lomer at i-Sight Investigation Software Blog
• Top Background Screening Survey: Criminal Records or Qualifications? — from Nick Fishman’s employeescreenIQ Blog
• “Can taking time off without permission get you fired?” — from Sklover Working Wisdom

Wage & Hour

• Are Homeless Hotspots Entitled To Minimum Wage? — from Wage & Hour Insights
• Can Employers Be Sued for Restricting the use of Certain Doctors for Disability Certifications? — from Jason Shinn’s Michigan Employment Law Advisor
• Are You an Employee or Independent Contractor? — from Legal Tastings – A Wine Law Blog

Labor Relations

• Breathe Deeply Before You Read: ALJ Finds At-Will Statement Violates NLRA — from Jonathan Segal
• Thinking About A Different World Under the NLRA — from Michael Fox’s Jottings By An Employer’s Lawyer
• Waiting for the Dust To Settle on New NLRB Posting Requirement — from Dan Schwartz’s Connecticut Employment Law Blog

Until next week…

How to avoid your organization’s muppet manifesto

Beware the ides of March.
– Julius Caesar, Act I, scene i.

2,056 years ago, Julius Caesar was assassinated. To mark that occasion two years ago, I wrote that employers should be wary of the types of problem employees within their organizations. That lesson rings as true today as it did then: certain archetypes of employees bear a knife in the form of a potential lawsuit, or worse.

Yesterday, Greg Smith offered his resignation to Goldman Sachs by way of a scathing op-ed in the New York Times. The banking giant thought enough of Smith to include him in its college recruiting video and promote him from summer intern all the way to executive director. Yet, I’m certain it had no idea that he harbored a level of unparalleled disenchantment and dissatisfaction that led him to a very public (and embarrassing) resignation. Smith objected to a corporate culture of greed that included his colleagues privately referring to clients as “muppets” (hence, the press labeling Smith’s op-ed the “muppet manifesto”). I’m not here to defend Smith. In fact, his very public bridge burning should cause any prospective employer great pause before hiring him.

In my piece, Beware these types of problem employees, Smith is archetype number 10: the unhappy employee. You must know what’s going on with your employees. Be aware and tackle these problems head-on. Do not provide your employees the opportunity to stab you in the back.

Employees use of Facebook biggest time-suck, according to recent survey

According to a recent survey conducted by Salary.com, 64% of employees visit non-work related websites everyday during work hours. The biggest culprit is Facebook, at 41%. Of those who access personal sites during work, 68% spend as much as two hours per work day, with reasons that include not being challenged or satisfied, or being bored.

So, what is an employer to do about this? Banning access to personal websites is not practical. Employees will circumvent the ban by using their mobile devices, and will resent you on top of it. Instead, I suggest the following approach.

1. Accept this as reality. Employees spend long hours at work. Because of the prevalence of mobile devices, they will access Facebook and other personal websites whether you allow it or not. You cannot be Big Brother at all times, at all places, and with all employees. Instead of banning Facebook and the like, train your employees on the appropriate use of social networks and other non-work related sites, including the benefits your organization will realize from the work-related use social networks. 

2. Remove the incentive. If disengagement and boredom are the biggest causes of distraction, engage your employees and keep them busy. They will be more productive, you will be more profitable, and we won’t have to keep having these conversations. 

And, for more on these issues, my book, Think Before You Click: Strategies for Managing Social Media in the Workplace is available.

Discrimination is discrimination, period: rejecting the idea of “reverse” discrimination

At her Employment & Labor Insider, Robin Shea wrote a great post reminding everyone that it’s “illegal to discriminate against white people” (aka, reverse discrimination). But, did you know that courts impose different legal standards for discrimination against white employees than for discrimination against black employees? A non-minority employee asserting a claim of race discrimination “must demonstrate background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”

Last I checked, EEOC stands for “Equal Employment Opportunity Commission,” not “Minority Employment Opportunity Commission.” A minority manager is just as capable of committing discrimination as a white manager. The law should not treat “reverse” discrimination any differently. Discrimination is discrimination. Applying different proof standards depending on the perpetrator of the alleged discrimination re-enforces the very stereotypes that our EEO laws intend to eradicate. Can we please remove from the law this idea of “reverse” discrimination, and just agree that discrimination is wrong regardless of the races of those accused of perpetrating it.

Reassignment as reasonable accommodation: mandatory or not?

Earlier this month, I wrote about the ADA and hiring preferences, pointing out that the disability discrimination laws do not prevent an employer from giving a hiring preference to a disabled job applicant by creating a cause for action in favor of a non-disabled applicant or employee. What happens, however, if you are not dealing with a disabled applicant, but a disabled employee who requests a transfer to an open position a reasonable accommodation? Are you required to overlook more qualified non-disabled employees and provide the transfer as a reasonable accommodation? The ADA's regulations provide that "reassignment to a vacant position" may qualify as a reasonable accommodation. But, that statement only begs the question of whether that accommodation is mandatory for employees who can longer perform the essential functions of their jobs, or just one part of the matrix of accommodations that an employer should consider.

Recently, in EEOC v. United Airlines [pdf], the 7th Circuit answered this question. In that case, the EEOC challenged United's "Reasonable Accommodation Guidelines," which provide that transfers to open positions are competitive, and that disabled employees will only receive "priority consideration over a similarly qualified applicant." The 7th Circuit concluded that this policy passes muster under the ADA: "The ADA does not require employers to reassign employees, who will lose their current positions due

to disability, to a vacant position for which they are qualified." 

The 6th Circuit appears to follow a similar approach. There exists, however, split among the federal courts, with a minority interpreting the ADA as requiring the transfer as a reasonable accommodation. What does this mean for your business? It means that this area of the law it unsettled. It means that if you are considering a transfer as a reasonable accommodation, your location will dictate the legality of your decision. It means that the Supreme Court will likely weigh-in on this issue at some point and provide some clarity (It tried to once, but the parties settled before the Court could rule). And, it also means that no matter the rule of law, you should ensure that the disabled employee is actually qualified for the position sought. No matter whether a transfer is discretionary or mandatory, no employee, disabled or not, is entitled to a job for which he or she is not qualified.