04.27.10

If I only had an Intern: Ever wanted to hire a Summer intern?

Posted in Education, Employment and Labor at 2:14 pm by Michael Dalrymple

If I only had an Intern:  Ever wanted to hire a Summer intern?

The Fair Labor Standards Act (FLSA) requires employers to pay almost all employees for the services they perform. One possible exception is interns.  The Department of Labor will consider an intern to be an employee unless each of the factors below relating to trainees is met. Importantly, if an intern does not satisfy each of the six factors, he or she must be paid at least the minimum wage and overtime compensation for hours worked over forty in a workweek. 

The Department of Labor permits For-profit private sector internships to be unpaid if the intern’s work  serves only his or her own interest an employee of another who provides aid or instruction. This commonly applies to interns who receive training for their own educational benefit.

The following six criteria must be satisfied before classifying someone as an unpaid intern: 

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.

If each criteria is satisfied, the intern will not be considered an employee and the FLSA’s minimum wage and overtime provisions do not apply to the intern. The Department of Labor provides the following guidance when structuring an internship program. 

Similar To An Education Environment And The Primary Beneficiary Of The Activity

In general, the more an internship program is structured around a classroom or academic experience as opposed to the employer’s actual operations, the more likely the internship will be viewed as an extension of the individual’s educational experience (this often occurs where a college or university exercises oversight over the internship program and provides educational credit). The more the internship provides the individual with skills that can be used in multiple employment settings, as opposed to skills particular to one employer’s operation, the more likely the intern would be viewed as receiving training. Under these circumstances the intern does not perform the routine work of the business on a regular and recurring basis, and the business is not dependent upon the work of the intern. On the other hand, if the interns are engaged in the operations of the employer or are performing productive work (for example, filing, performing other clerical work, or assisting customers), then the fact that they may be receiving some benefits in the form of a new skill or improved work habits will not exclude them from the FLSA’s minimum wage and overtime requirements because the employer benefits from the interns’ work.

Displacement And Supervision Issues

If an employer uses interns as substitutes for regular workers or to augment its existing workforce during specific time periods, these interns should be paid at least the minimum wage and overtime compensation for hours worked over forty in a workweek. If the employer would have hired additional employees or required existing staff to work additional hours had the interns not performed the work, then the interns will be viewed as employees and entitled compensation under the FLSA. Conversely, if the employer is providing job shadowing opportunities that allow an intern to learn certain functions under the close and constant supervision of regular employees, but the intern performs no or minimal work, the activity is more likely to be viewed as a bona fide education experience. On the other hand, if the intern receives the same level of supervision as the employer’s regular workforce, this would suggest an employment relationship, rather than training.

Job Entitlement

The internship should be of a fixed duration, established prior to the outset of the internship. Further, unpaid internships generally should not be used by the employer as a trial period for individuals seeking employment at the conclusion of the internship period. If an intern is placed with the employer for a trial period with the expectation that he or she will then be hired on a permanent basis, that individual generally would be considered an employee under the FLSA. 

See Department of labor, Wage and Hour Division Fact Sheet 71.

For more information about this or other legal topics, please e-mail Michael Dalrymple.

http://www.dalrymple-law.com

03.30.10

More on Bullying in Schools

Posted in Education at 9:17 am by Michael Dalrymple

More on Bullying in Schools

In a very timely and very disturbing New York Times article, we learn just how tragic unchecked bullying can be.  As I recently reported in my blog, courts are trying to define the line between the first Amendment rights of students and a school’s ability to restrict speech.  As made obvious in this article that speech can end with deadly results.  

http://www.nytimes.com/2010/03/30/us/30bully.html?th=&adxnnl=1&emc=th&pagewanted=all&adxnnlx=1269954023-i6/swK5C2Imswnd1z9quRQ

For more information about this or other legal topics, please e-mail Michael Dalrymple.

http://www.dalrymple-law.com

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03.29.10

Bullies are not just for Playgrounds Anymore

Posted in Education at 10:24 pm by Michael Dalrymple

Bullies are not just for Playgrounds Anymore

It appears that we will always have to “manage” our bullies. They were once just on playgrounds, but are now in our offices and on the internet. When the bullying occurs on a playground, a teacher can issue appropriate discipline and stop the behavior through direct intervention. The solution is not so obvious when the bullying occurs off campus and online. Two recent Third Circuit decisions examine online offensive behavior and provide some direction for schools in their attempts to limit such behavior. Whether the conduct constitutes “bullying” is a discussion for another time, but no matter the name, it is of great concern for school officials.

Before turning to the two recent decisions, a brief lesson on a school’s legal ability to curtail student speech under the First Amendment. The following four tests are used by courts to determine whether a student’s rights were violated when a school either prohibited speech or disciplined the student for the speech. Notably, in all four of these tests, the student speech occurred on campus. It appears that courts are also willing to apply these four tests to speech that occurs off campus.

(1) The Tinker Test:
This test permits school restrictions on student speech if the speech caused, or was likely to cause, a “substantial disruption or material interference with school activities” or an “invasion of the rights of others.”
Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1967).

(2)The Fraser Test:
This test permits schools to regulate “sexually explicit, indecent or lewd speech.” Importantly, for this test the school need not demonstrate a disruption.
Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986).

(3) The Morse Test:
This test permits schools to regulate “speech that can reasonably be regarded as encouraging illegal drug use.”
Morse v. Frederick, 551 U.S. 393 (2007).

(4) The Hazelwood Test:
This test permits schools to regulate “school sponsored” speech if the speech is inconsistent with the school’s “basic educational mission.” Courts define “school-sponsored speech” as speech that is “part of the school curriculum” or “supervised by faculty members”. This test includes most school-sponsored activities such as yearbook, student government, newspaper, and the theater.
Hazelwood Sch. Dist. V. Kuhlmeier, 484 U.S. 260 (1988).

Now back to the off-campus speech. The issue before the court in the two cases below was offensive speech uttered by a student online.

The first case was in Pennsylvania , Layshock v. Hermitage School District (3rd Circ. feb. 4, 2010). The student created a fake MySpace profile for his Principal. In this profile, the student provided the following information:

Birthday: “to drunk to remember”
Are you a health freak: “big steroid freak”
In the last month have you smoked: “big blunt”
In the last month have you been on pills: “big pills”
In the last month have you gone Skinny Dipping: “big lake, not big dick”
In the last month have you stolen anything: “big keg”
Ever been drunk: “big number of times”
Ever been called a tease” “big whore”
The list continued. Apparently, the student focused on the large size of the principal. After learning of this post, the school suspended the student.

The court addressed two issues:
(1) Whether “a school district can punish a student for expressive conduct that originated outside of the classroom, when that conduct did not disturb the school environment and was not related to any school sponsored event.” Id.
(2) Whether “the extent to which this school district’s response to a student posting on the internet interfered with the substantive due process rights of the student’s parents.” Id.

The court quickly dismissed the “substantial disruption” (the Tinker Test), even though the school canceled computer classes and limited student access to computers until the author of the profile was found. Instead, the court applied the “sexually explicit, indecent or lewd speech” test from Fraser. Applying this test, the court held that the school violated the student’s First Amendment rights when it suspended him for the off-campus speech. In short, the student’s speech did not warrant the school reaching off campus to punish the student.

In a second off-campus speech case, the court applied the Tinker Test and held that the school could discipline a student for off-campus speech, because the speech reasonably threatened to cause a substantial on-campus disruption. In J.S. v. Blue Mountain School District (3rd Circ. feb. 4, 2010), an eighth grader created yet another fictitious profile on MySpace. The profile included the following:

“HELLO CHILDREN
yes. it’s your oh so wonderful, hairy, expressionless, sex addict, fagass, put on this world with a small dick PRINCIPAL
I have come to myspace so i can pervert the minds of other principal’s to be just like me. I know, I know, you’re all thrilled
Another reason I came to my space is because — I am keeping an eye on you students (who i care for so much)
For those who want to be my friend, and aren’t in my school I love children, sex (any kind), dogs, long walks on the beach, tv, being a dick head, and last but not least my darling wife who looks like a man (who satisfies my needs)
MY FRAINTRAIN
so please, feel free to add me, message me whatever”
Id. (only the formatting of text has been altered).

The student also referred to the Principal as a “pedophile” and “sex addict”. Interestingly, the court’s holding discounted the actual disruption that took place as minor, but held that: “the profile presented a reasonable possibility of a future disruption, which was preempted only by [the Principal’s] expeditious investigation of the profile, which secured its quick removal, and his swift punishment of its creators.” Id.

These two decisions will likely shape future decisions in this growing body of law. Schools must fully evaluate the situation prior to issuing any discipline for off-campus speech. An investigation must include documentation of all disruptions and potential disruptions and the access to the violating speech by students while on campus. 

For more information about this or other legal topics, please e-mail Michael Dalrymple.

http://www.dalrymple-law.com

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03.25.10

School Districts Challenge another State Funding Formula

Posted in Education at 11:28 am by Michael Dalrymple

School districts challenge Yet another school funding formula.  This time it is in Illinois. 

Click here for details

For more information about this or other legal topics, please e-mail Michael Dalrymple.

http://www.dalrymple-law.com

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