In this episode of What the Hell Just Happened?! Paul Edwards sits down with CEDR Compliance Officer Nora Gustafson to talk about that ever-popular summer topic: the internship. Is there such a thing as a paid intern? Does the age of the intern affect how you handle the process? What problems can arise from unpaid internships and what do you need to legally establish one? You’ll find the answers to all of your internship questions – including ones you didn’t know you had – in this episode of WTHJH.
Paul: Hello. My name’s Paul Edwards, and welcome to the WTHJH podcast. You’re about to listen to an episode of “What the Hell Just Happened in HR?”.
I’m an HR nerd who loves to talk about HR with just about anyone who will listen. So, during each podcast, we’re going to delve into the solutions for dealing with a real-life HR issue. Plus, occasionally, we’re going to share some big-company, HR-strategy ideas.
Keep in mind that for every HR problem you solve, there are state, federal, and local laws that govern what we can and cannot do. And now, let’s get started.
Nora: Hi, Paul.
Paul: Hi, Nora.
Nora: How are you?
Paul: I’m good. What’s up?
Nora: You know, just HR, all day every day.
Paul: Love me some HR. Let’s do it.
Nora: Okay, cool. So, I’ll just hop right in. This is a question we get a lot, especially recently. I think with COVID, we’re getting more internship questions and we’re getting more young adults wanting to do internships, so like high schoolers. So, this question is about a practice that got contacted by a school about a student who’s interested in the dental field, and they were asking if the practice would be willing to do a paid internship for this student, who is 16 years old. So, the question is, “Are there any legal issues, any HR implications?” And then a secondary question that we get a lot which is, “Can we draft an internship agreement for them?”
Paul: Right. Okay, so, let me answer the second one first. The answer to that is, “Yes.” You know, for the most part, it’s a standardized document that we have and it kind of covers a bunch of bases about HIPAA, and kind of puts you in the best position that you can be in. Because even if someone is an intern, you still have all the other responsibilities that you have with an employee that pretty much apply to them too. The agreement solidifies who is going to pay if this person gets injured at work. Is it going to go on workers comp, or is it going to go to the school’s workman’s comp. You know? Are they going to be trained in HIPAA because they see records? And it just covers all that. It’s almost like a guide to how to legally bring an intern in, if you can legally bring an intern in.
Okay, so you have a lot going on there. And the question… You started off with the paid internship. You took care of one really big issue Nora, which is it’s paid. So, we’re probably pretty safe to move forward with this internship. If I were going to throw something in on top of this, we also get these kinds of requests – Nora, you’ll verify – where it’s an unpaid internship that someone is trying to do and that has a different set of rules around it. And it has to do with the school, and it’s got to be an accredited program in order for it to be okay for you at the practice to participate in the program. There are a bunch of other rules. Do we need to go down the rabbit hole on all those other rules?
Nora: Yeah basically, there’s a seven-factor balancing test from the DOL, because, in order for you to have unpaid labor, it has to be… you have to meet a lot of criteria. And, basically, the idea is it just needs…the benefit of the internship is primarily for the student. It’s educational, not for the practice. And we don’t need to go down that rabbit hole because we’ve already said that this is paid. So, it’s not even technically an internship.
Paul: It really isn’t. And what I think it is, is okay. Except that they’re 16. So, now we need to look to state and possibly local law, but more likely state law. What does state law say about 16-year-olds working? Where does the permission have to come from? Do the parents have to be involved and sign off on this? And how many hours can they work? And, even – and I don’t think we’re going to have this problem inside of any kind of medical or dental practice – but, even the setting. We may not be able to allow, in certain states, a 16-year-old to work in manufacturing or something like that, because it’s dangerous. But again, this just comes back to doing a little bit of work – a little bit of HR work – and finding out what’s okay and what’s not okay for a 16-year-old, how many hours they can work, and then making sure that you do have some kind of document in place where we’re clear who is responsible for this employee and for this underage worker.
Nora: Yeah. So, that’s an important word that you use. Because they’re paid, they are technically your employee…
Paul: They’re going on payroll.
Nora: …they’re not an intern. So you would treat them pretty much like any other employee. You wouldn’t really need an internship agreement…
Paul: Good point!
Nora: …because they’re not an intern, they’re an employee. And…
Paul: Wait a minute, Nora tricked me, everybody!
Paul: Everybody who’s listening, Nora tricked me and I just want to point that out! But, you know, that’s why Nora is who Nora is. She’s in compliance. But, that’s a very good point. No need for the agreement. Because, if we’re gonna hire…it’s not an intern. We’re going to hire them as an employee. They’re going to sign the employee handbook and we’re just gonna run them through the wringer just like we do everybody else. They’ll get the HIPAA training and be fully onboarded.
Nora: Exactly. And one thing that I wanted to mention, too, is that we do get a lot of requests for internship agreements, and it is something that we can absolutely help out with. And we have done that. But, my primary concern when a member asks for an agreement is, is this actually an internship? Because the school should have an agreement if it’s an actual internship.
Paul: They don’t always, though. I mean, you know, we’ve been doing this for 17 or 18 years. I know in the beginning, the reason we created the template for the agreement was because we had a lot of bonafide requests for interns but the school wasn’t sending them with agreements. We would talk to a client who would say, “Yeah, we have an intern relationship because they’re in proximity to a dental school, a community college that trains dental assistants,” or something like that, and we would discover that there is nothing from the school.
So, it was like, “Well, Doc, they’re not covered by your workman’s comp, but if they get injured they’re gonna be covered by your wallet. So., that’s, you know, another track that we can go down, but it’s just not the one we’re on right now.
Nora: Yeah. The fact that this student is only 16 is obviously something that you would want to look into. And we obviously can help out with looking into the child labor laws. But we frequently will recommend, because it’s so tricky, especially, depending on the age of the student, you might want to reach out directly to your Department of Labor…
Paul: …To ask if this is okay.
Nora: Yeah, because frequently they’ll have a phone number you can call and they should be able to give you specific guidance.
Paul: So, look, I’m going to delve into this just a little bit. If we… circumstantially, I’m just gonna take some wild guesses here. We’ve got an awesome counselor in a local high school who is talking to kids and developing relationships in the community, and saying, “Hey, this kid just said he wants to be a dentist, or he might like to work in medical. Well, I can’t get him in a medical office, but I have a relationship with these two dental offices, and every summer I can get one or two people in there.” And they call it an internship, and they may be helping kids out in multiple ways.
But, it’s not an internship, so it couldn’t be an unpaid Internship. That’s part of it, because they don’t have a… you have to have a bonafide program at an institution of higher learning – most of the time when I read the statutes – at an institution of higher learning in order for it to qualify for the “unpaid internship” moniker, if you even want to put that label on it. So, we have a high school that is willing… the question is perfect. “I would like to pay an intern to come in here and work.” The answer is, “It’s not an intern, it’s an employee. Go for it. But how old are they? Alright, let’s check what the rules are around that.”
Nora: Right, yeah. And… getting back to that seven-factor balancing test that we’re not going to go into the details of…
Paul: That we’re not gonna go into except for that we’ve already gotten into about four of the seven…
Nora: If you wanna call something an internship and it’s going to be unpaid, you really wanna take a look at those factors.
Paul: Oh, yeah.
Nora: It’s basically… You have to look at all seven. It’s not simple and the government takes it really seriously if you’re gonna have someone work for you for free.
Paul: They changed the rules quite a bit like five years ago. The DOL changed the rules because it was being abused. Internships were showing up inside of baseball parks for people selling popcorn. And that was not for the advantage of the intern.
Nora: Right [laughs]
Paul: It was for the advantage of the owner of the popcorn selling, so…
Nora: But, if the focus is just to get somebody some hands-on experience to see if they’re interested in the field and you’re going to pay them. I think in this case, or in a lot of cases these students are doing sterilization or something like that. And that, you know, yeah… it’s focused on the student, but really, that’s gonna be a benefit to you and your practice to have them doing that sterilization. You’re probably not going to be doing extensive training or focusing on their education throughout. It’s really for them to just have that fun summer experience, so it’s not gonna qualify.
Paul: And it’s kind of fun to have young adults around.
Paul: It infuses a different energy and it gives, you know, something different going on. And folks have to learn about these things somehow. You know, young people have to kind of figure out where they want to go in life and I think this is a good thing to do.
Nora: Yeah, I agree.
Paul: Alright. I don’t think we have anything else on this, right?
Paul: Maybe we should get us some paid interns.
Paul: I don’t know what they would do here, but we can figure it out.
Nora: Yeah, we’ve tried it, but not high schoolers. That would definitely add a whole other…
Paul: Not high schoolers. We’re already… We have enough distractions with dogs and everything else. Okay, I think that’s everything we have on not-interns.
Paul: Thanks, Nora.
Voiceover: Thanks for joining us for this week’s episode of What The Hell Just Happened?! If you have an HR issue or a question you’d like us to discuss on this podcast, send it to podcast@WTHjusthappened.com. For more HR advice and insights from Paul and his team of experts, you can also join our private Facebook group, HR Base Camp, or visit HRbasecamp.com.
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