Capitol Watch — The Hartford Courant’s political site – tweeted the following yesterday:
Gov. Malloy has signed a bill protecting interns from workplace harassment and discrimination.
— Capitol Watch (@capitolwatch) June 22, 2015
And a review of the Governor’s website reflects that approval in the bill notification release. (I read them so you don’t have to!)
So, what does that mean for employers? Well, I’ve covered the bill before so I won’t recap everything here.
But the bill’s provisions now become effective October 1, 2015. Thus, employers who regularly use interns should update their employee handbook and anti-harassment provisions to explicitly cover interns.
One of the other things to consider that hasn’t been discussed much is the extent to which the bill’s definition of “intern” may get adopted in the context of establishing whether an intern is really an “employee” for wage/hour purposes.
What do I mean? Well, back in 2012, I talked a lot about how employers could properly structure internship programs. In that post, I noted that there were six factors that the U.S. Department of Labor would look at:
- 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;
- The internship experience is for the benefit of the intern;
- The intern does not displace regular employees, but works under close supervision of existing staff;
- 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;
- The intern is not necessarily entitled to a job at the conclusion of the internship; and
- The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
Now, let’s compare this with the definition of “Intern” in the new anti-discrimination bill. An intern is defined as an “individual who performs work for an employer for the purpose of training, provided”:
- the employer is not committed to hire the individual performing the work at the conclusion of the training period;
- the employer and the individual performing the work agree that the individual performing the work is not entitled to wages for the work performed; and
- the work performed:
- supplements training given in an educational environment that may enhance the employability of the individual,
- provides experience for the benefit of the individual,
- does not displace any employee of the employer,
- is performed under the supervision of the employer or an employee of the employer, and
- provides no immediate advantage to the employer providing the training and may occasionally impede the operations of the employer.
If you track each item carefully, you’ll notice that they are actually fairly similar. That’s a good thing. While there are subtle differences, it’s unlikely that those differences will be meaningful in their application.
As a practical matter, that means employers that adopt the defintiion of “intern” in the new state statute are likely to be following the federal interpretation as well, reducing the risk of a wage/hour claim as well.
The bottom line, however, is that employers who just use interns without much worry as to the liability that using interns may create should rethink their practices. The new law is yet another area where new rules will make using those interns may expose employers to possible claims. Is it a small risk? Perhaps. But small risks can turn into big ones if employers aren’t mindful.