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Volunteer Series- Intern Season is here!  What should I consider when hiring my intern?

By Jessica Patrice Gomez, esq.
Summer is here and intern season is in full swing! If your organization has an internship program make sure that you have appropriate risk management controls in place.  As we discussed last month, the problemFree Internship Cliparts, Download Free Clip Art, Free Clip Art on ...lies with whether an internship should/ could be paid or unpaid.  Following those guidelines is crucial to your organizations risk management program.  Click here to review last months article.
 
You may still be wondering what specific type of controls should be in place for your organization.  The answer is it depends.  The goal of this series is to consider potential risk management controls that fit your organizations internship program.
 
The Paid Intern
If you pay your interns then they would be considered an employee. This means that the intern has the same rights and protections as an employee, including protection from wage and hour, harassment, discrimination, potential breach of contract claims, and workers compensation. Make sure your organization is following the appropriate internal and external risk management practices when hiring a paid intern.
 
Internal controls include appropriate orientation and safety training, background checks, following the applicable meal and rest breaks as well as providing the appropriate intern manuals, if applicable (duration).
 

External controls includes proper insurance coverage in the event of a claim such as Directors and Officers (D&O), Employment Practice Liability Insurance (EPLI), General Liability, Specific Professional or Errors & Omission (E&O) and Workers Compensation.

 
The Unpaid Intern
A bigger issue occurs when an intern is unpaid.  An unpaid internship must truly be a volunteer position.  Both federal and state agencies have set up guidelines for determining whether an organization’s internship may be unpaid. If your program does not follow these guidelines then your unpaid intern may have an employment relationship.  Those guidelines can be found in last months article and can be reviewed by clicking here. 
An important internal control is ensuring that your organization’s unpaid internship program is not replacing the position of a paid employee.
An improperly classified intern can lead to wage and hour claims as well as giving the intern the ability to file employment discrimination claims.  You may want to make sure that your D&O and EPLI policy cover your organization in the event of a claim. Obtain a broadly worded policy form.  Note most EPLI policies do not indemnify wage and hour claims but some carriers provide a defense sub limit.
 
However, if your organization meets the required state and federal DOL requirements for an unpaid internship program make sure that your organization obtains a Volunteer Accident Policy with appropriate limits.
 
A Volunteer Accident Policy covers a volunteer’s medical expenses while they are a volunteer at an organization. Coverage is excess over any other medical insurance.
 

Workers’ compensation may not cover your volunteers if they are not endorsed on the policy.  Even if you decide to add volunteers to your workers’ compensation policy it will be more costly than a standard volunteer accident policy.

Med Pay under your General Liability policy may limit or exclude coverage for your injured volunteers. Review the insurance policy terms and conditions.

 
Always review your handbooks and safety procedure with your attorney and management staff.
 
Are Your Paid or Volunteer Interns Driving on Behalf of Your Organization?

Remember automobile insurance follows the owner of the vehicle.  This means that your volunteer’s personal automobile insurance will respond first if they are involved in an auto accident during “company time.” Y

our organization should purchase hired and non-owned auto liability to protect it in the event of an automobile accident.
Further, your HR department should verify the appropriate driver guidelines
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Volunteer Protection Act: What this really means for your organization

Many Non-Profit organizations believe that because they are a volunteer-run organization that they are shielded from liability and therefore do need insurance.  This belief stems from the language of the Volunteer Protection Act.

The Volunteer Protection Act states that “no volunteer of a nonprofit organization or governmental entity shall be liable for harm caused by an act or omission of the volunteer on behalf of the organization or entity.”

However, the Volunteer Protection Act does not shield the organization from the negligence of a volunteer. Further a volunteer may not be protected if there are state laws that impose liability on the volunteer. For example if a state law requires risk management procedures to be followed and the volunteer does not follow them, there is potential liability.   Click here to see more language regarding the Volunteer Protection Act.

As many nonprofits know from experience, California has abolished charitable immunity. This means that nonprofits do not enjoy immunity from lawsuits or liability. A nonprofit may be sued for its negligent acts from its employees and from its volunteers.

In light of this, nonprofits should protect themselves with internal and external risk management controls. Nonprofits internally should have appropriate risk management controls in place such as hands on training with the volunteer.  Preventative risk management is the first step to keeping claims under control and lowering the overall premium.

External controls protect your organizations from potential claims.  Remember no single insurance policy will cover every claim against your organization.  It is important that your organization protect itself with Directors and Officers and Commercial General Liability with high enough limits.  The limits will depend on your organizations risk exposure and funder contracts.  Review all coverages with your attorney and HR professional.

We are here to help.

For informational purposes only.  This is not to be construed as legal advice. 

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