Legal Update – Q & A: ASK A LAWYER

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Q:  Conselor, I run an event planning business in the Metro area.  One of my cordial competitors mentioned that he’s started using summer interns to fill out his staff during our busy season.  He says kids in local colleges or home on break are anxious to do something to put on a resume.

 

I’d like to jump on this bandwagon next year.  I’ve got contacts at some area schools, and, like everyone, I receive plenty of unsolicited inquires.  I could use a few “marketing” interns.  They could join in a few presentations, then fill in elsewhere as needed.  If nothing else, we have a decade’s worth of old files we can’t seem to get around to cataloging for the archives.  Resume value for them; free labor for us.  Sounds like a win-win.

 

Nelson B in Bethesda

 

A:  Whoa, Nelly!  You don’t provide much detail about what your friendly competitor is doing, but I don’t like the way this is headed.  The Fair Labor Standards Act is very specific when it comes to interns.  In limited situations it may be appropriate to not pay an intern.  However, these limited situations rarely, if ever, allow you to obtain productive free labor.  Typically, individuals who work must be compensated.  While there are exceptions for internships and training, they are rarely met by the situation you are discussing.  Specifically, the following six criteria must be met if the internship or training is not to be deemed compensable work:

 

  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, not the employer;
  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, the employer’s operations may be impaired by the activities of the intern;
  5. The intern is not necessarily entitled to a job at the conclusion of the internship;
  6. The employer and intern recognized that the intern is not entitled to compensation for the period of the internship.

 

If all of the foregoing criteria are met, the employer may forego compensating the intern.  However, the intern may not legally agree to forego compensation that is otherwise required by the Fair Labor Standards Act.  If the intern is to be compensated, all minimum wage and overtime requirements must be respected.

 

Q:  As a business owner, do I “own” everything on the company’s computers?  Every employee has a desk or laptop computer with unfettered internet access.  We do have policies about appropriate use; and, in the past, we’ve even dealt (successfully) with employees straying far from what is appropriate.  But now I am dealing with demands of a departed employee to retrieve his personal files, including personal correspondence and pictures.  Yes, we do have policies that would prohibit such personal use of company resources; but, we are also realistic and recognize that a modicum of personal use is almost inevitable.  The employee in question did not leave on good terms, so I’m not anxious to let him back in the office for any reason.  Do I have to give him access or facilitate recovery of what he thinks are his personal files?

 

Anxious in Annandale

 

A:  Chill, Anxious, as the owner of the computer equipment, you own all data stored on your computer – even if the data is personal to the employee (or former employee) assigned to use the computer.  You certainly don’t have to give the former employee) assigned to use the computer.  You certainly don’t have to give the former employee access to the computer to recover his personal files.  If you find it in the goodness of your heart you can, but don’t have to, provide the former employee with a copy of his personal data.  In an effort to eliminate confusion and needless allegations from the former employee, it is advisable to have a provision in your employee handbook clearly outlining that you, as the employer, own all data stored on your computers and that the employee has no right or expectation of privacy with regard to data stored on your computers (or information stored on or sent through your voicemail and email systems).

 

 

PHILIP SCHWARTZ

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