Employment & Labor Insider

Summer is almost here. For many employers, that means an influx of customers and a familiar solution: seasonal hires.

High school and college students are a natural fit for short-term roles. But along with the extra help come legal considerations that can catch employers off guard. These include issues related to wage and hour compliance and scrutiny from the U.S. Equal Employment Opportunity Commission regarding internship programs and hiring practices.

Here are three points for employers to keep in mind before the summer rush begins.

Tip No. 1: Know the rules.

An understanding of workplace safety requirements – especially for employers in manufacturing, construction, and hospitality settings – is critical. Our Workplace Safety & OSHA Group can assist.

Then there are the age limits. If you're hiring workers under age 18, federal and most state laws have something to say about it by imposing child labor restrictions.

Employers generally are prohibited from hiring anyone under the age of 14. Federal law also prohibits workers under the age of 18 from being employed in certain hazardous occupations, such as heavy manufacturing.

Workers under age 16 have additional federal restrictions that prevent them from working more than eight hours a day or 40 hours a week. Their working hours are also restricted – generally, to 7 a.m.-7 p.m., with the latest quitting time extended to 9 p.m. between June 1 and Labor Day.  Many state child labor laws impose even stricter limitations on hours worked by minors.

In many states, workers under 21 cannot serve alcohol or be employed as a bartender.

Low-risk roles like scooping ice cream are generally appropriate and safe for younger workers, as long as working in walk-in freezers is not involved. But if your business involves any hazardous equipment or environments, consider limiting those positions to workers 18 and older.

Tip No. 2: Know when you have to pay.

You may call your summer worker an “intern,” but that doesn’t necessarily mean you don’t have to pay wages to that “intern.” As you can imagine, misclassifying an employee as a “volunteer” can be costly.

The U.S. Department of Labor uses a "primary beneficiary test" to determine whether an intern qualifies as an employee entitled to pay. The central question is simple: Who benefits most from the relationship?

If the intern is the primary beneficiary (gaining skills, academic credit, or career experience), the employer may not be required to pay.

However, if the employer is the primary beneficiary (getting real work done that serves the business), the intern is very likely to be an employee and would have to be compensated in accord with applicable minimum wage and overtime requirements.

Each situation is evaluated on its own facts, but unpaid internships in the private sector are rare outside of structured, college-affiliated programs.

When in doubt, consult with employment counsel before assuming an intern can work for free.

Tip No. 3: Be cautious with DEI.

If your company runs a summer internship or associate program open only to members of a specific protected class (such as women, racial minorities, or LGBTQ+ individuals), it's time to take a closer look.

The EEOC has been actively scrutinizing Diversity, Equity, and Inclusion programs and has specifically flagged exclusive summer internships as a potential area of concern. Recent EEOC guidance has reinforced that internship programs, mentorship opportunities, and training programs must be structured to avoid discrimination against members of “majority” groups, including white, male, and heterosexual individuals.

Rather than restricting eligibility by protected class, the EEOC recommends structuring programs around neutral, broadly applicable criteria, including the following:

• Demonstrated interest in your industry
• Academic performance
• Economic need or other disadvantaged background
• First-generation college student status

If you need help structuring your programs, feel free to contact any member of our Diversity, Equity & Inclusion Practice Group.

Conclusion

A little planning goes a long way when it comes to seasonal hiring. By understanding child labor laws, intern pay requirements, and the current position of the courts and the EEOC on DEI-based criteria, you can build a summer workforce that's both productive and compliant.

Watch this Constangy Clips episode for more guidance on child labor laws, unpaid internships, and DEI-related internship considerations: Summer Interns and Short-Term Workers - 3 Tips for Managing Seasonal Hires.