The Legal Ramifications of an Internship Program

Two key legal questions businesses need to be aware of before launching an internship program.

In the lead up to the Third Annual Cleveland Internship Summit on Feb. 27, Mind Your Business will be running a series of articles previewing some of the sessions that attendees will have the opportunity to sit in on. Today’s preview focuses on the legal aspects of internships. Click here to view the other preview articles for this year’s Internship Summit.

The value that internships provide to a business—increased generational diversity within their own workplace as well as the opportunity to provide students with valuable work experience, just to name a couple—are obvious. But, too often, employers are not aware of the potential legal ramifications of employing interns.

That is a subject James McWeeney II, an attorney at Walter Haverfield LLP, will address in his presentation titled “Legal Aspects of Internships” during the Third Annual Cleveland Internship Summit. During a recent interview, McWeeney outlined several possible legal impacts employers should be aware of and consider regarding the interns and internship programs.

Two potential questions to consider:

Question No. 1: What about workers’ comp?

Depending on the nature of the work an intern performs, the intern could be deemed an employee of the business. This designation could mean the business would be required to pay workers’ compensation under prevailing wage and labor laws.

Question No. 2: What about confidentiality?

Internships also implicate questions of confidentiality. That is, if a business shares trade secrets or other information as part of an internship program, what obligation does the intern have to keep that information confidential and what protective measures can a business take to ensure the confidentiality of its information?

“My goal,” Mr. McWeeney said, “is to educate businesses about internship programs. Employers interested in launching or building upon such programsneed to be aware of these legal ramifications.”

Internship benefits

Legal ramifications aside, McWeeney said he sees value in internship programs.

“It really is that rite of passage,” he said. “It’s an opportunity to get out into the working world and begin making career-lasting connections.”

“It’s just as good for the business as it is for young people,” he added. “The are the next generation of up-and-coming employees.”

Learn more about other best practices you need to know about internships by registering today for the 2018 Cleveland Internship Summit. And for a deeper dive into how to create and manage your company's internship program, check out the Greater Cleveland Partnership's Internship Central page.

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  • Next up: The Limits on Employers’ Monitoring of Employees Online
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  • The Limits on Employers’ Monitoring of Employees Online

    Are you monitoring your employees’ social media correspondence? Before your surveillance continues, read about a recent decision by the National Labor Relations Board.

    Are you monitoring your employees’ social media correspondence? A recent decision by the National Labor Relations Board (NLRB) reminds employers that surveillance of employees’ discussions within private social media groups violates applicable labor laws where the subject of those discussions concerns unionization.

    Employees’ rights
    If you think your business is too small for your employees to unionize—think again, and don’t skip over this article. By way of background, employee unions are most commonly understood as a way for employees to bargain with their employers for the purpose of protecting workers’ rights. The National Labor Relations Act of 1935  [the “Act”] guarantees employees’ rights to form unions and take collective action. The Act applies to all private employers engaged in interstate commerce—meaning that it covers most small businesses in the United States. Under the Act, two or more employees who “share a community of interest” can form a union. 

    Unionization is a protected activity under the Act, which means that employers cannot fire or discipline employees for attempting to unionize or exercise their other rights. Employers that do so run the risk of getting sued for employment discrimination and/or wrongful termination.

    But can an employer monitor employees’ private correspondence regarding unionization on a social media platform? In a recent case against an employer called National Captioning Institute, Inc.,  the NLRB reminded employers that they generally cannot engage in this type of surveillance. Although this question is not necessarily a novel one,  a review of the facts underlying the National Captioning Institute case may help employers understand what not to do when it comes to monitoring employee communications.

    The key takeaway: Don’t do anything out of the ordinary to monitor employee correspondence.

    The case that drew the line  
    National Captioning Institute (“NCI”) is a non-profit corporation that provides closed-captioning, subtitling, and other media services. In early 2016, the National Association of Broadcast Employees & Technicians—Communications Workers of America, AFL–CIO ( “the Union”), launched a campaign to unionize the employees at two of NCI’s offices.

    Discovering the Union’s campaign
    NCI discovered the campaign when it initially reviewed employee communications exchanged via its in-house chat platform. NCI’s president and chief operating officer, Jill Toschi, had a suspicion that two of NCI’s employees were planning on leaving the company to form a new enterprise intended to compete with NCI. Toschi’s review of in-house chat correspondence found no information regarding any plot to unfairly compete with the company—although it did uncover the Union’s campaign to organize NCI’s employees. Among other things, the employees’ in-house chat correspondence voiced support for the Union.

    Later, once NCI was aware of the Union’s activities, an NCI employee, Crystal Anderson, reported to an NCI manager that another NCI employee had posted pro-Union articles on Facebook. Anderson later reported, at the request of the same NCI manager, that the Union was in contact with employees, and that a group of pro-Union employees had since formed a private, invitation-only Facebook group called “the VW Bus.” The NCI manager later asked Anderson to provide additional details regarding this Facebook group, and she promptly responded with the names of all the group’s administrators and members. The NCI manager then reported this information directly to Toschi. Thereafter, the NCI manager again contacted Anderson and asked her: (i) if she was still a member of the VW Bus group; (ii) if the group had met with the Union; and (iii) whether any of NCI’s supervisors were members of the group.

    Anderson responded with a detailed message explaining the group’s activities, including that employees were preparing a response to a company-wide email previously circulated by Toschi critical of unionization. Ten NCI employees, including Mike Lukas, ultimately signed the employees’ response to Toschi’s email. The day after the employees sent their response, an NCI manager emailed Toschi regarding the “background on those who signed union letter.” 

    Unrelated actions lead to unlawful discipline
    Notably, before the employees sent their response, Toschi announced over a conference call that NCI intended to close its Dallas office, but that its Dallas-area employees could submit applications for continued employment with NCI on a remote basis. Lukas attended the conference call remotely (on his day off) and put the conference call on speakerphone in the presence of his friend, a former NCI employee. After Toschi learned that the closure of the Dallas office had been disclosed to third parties, she circulated an email marked “Company Confidential” that instructed employees to not disclose the Dallas office closure to anyone outside of NCI.  

    Lukas was later disciplined for allowing a third party to listen to the conference call (which was only identified as confidential after the fact). But, importantly, he was not disciplined until after the employees sent their response to Toschi’s initial email regarding unionization. Later, Lukas applied for a full-time remote position with NCI in light of the closure of the Dallas office, but his application was denied. Ultimately, the NLRB found that NCI’s disciplinary action against Lukas, as well as its decision to not rehire him, were unlawful and that the timing of Lukas’s discipline supported a finding of antiunion animus. 

    The monitoring continues
    Meanwhile, with Anderson’s assistance, NCI continued monitoring employees’ private communications on the VW Bus Facebook group. The Panel found that NCI engaged in unlawful surveillance of these communications in violation of Section 8(a)(1) of the Act when it “repeatedly solicited and received” reports from Anderson about the group’s membership and the messages posted there. The Panel reiterated that “an employer commits unlawful surveillance if it acts in a way that is out of the ordinary in order to observe union activity.”  NCI argued that its surveillance of the VW Bus Facebook group was not unlawful because, according to NCI, it took no adverse employment actions based on the information that it obtained, and because the employees were not aware of the surveillance. The Panel rejected both arguments. First, the Panel noted that “out-of-the ordinary surveillance of union activity is itself an unfair labor practice; an adverse employment action is not required to make out a violation of the Act.” Rejecting NCI’s second argument, the Panel observed that at least one employee, Anderson, was aware of the surveillance.

    The lesson for employers
    This case and others like it serve as a reminder to employers that they should not go out of their way or otherwise do anything that could be considered “out of the ordinary” to monitor employee communications discussing unionization, which is a protected activity under the Act.

    If you have questions about whether and the extent to which your practices involving the surveillance of employee communications are lawful, then you should contact an attorney licensed to practice in your jurisdiction. Failing to adequately observe the rights of employees to engage in protected activities could result in disputes with employees and/or regulators. You should contact an attorney licensed to practice in your jurisdiction for additional information about this area of the law.

    Max Julian is an attorney at the Gertsburg Law Firm. Julian’s practice is focused on commercial litigation. He can be reached at or by phone at (440) 571-7541. This article is for informational purposes only. It is merely intended to provide a very general overview of a certain area of the law, as well as a summary of a recent NLRB decision regarding this area of the law. Nothing in this article is intended to create an attorney-client relationship or provide legal advice. You should not rely on anything in this article without first consulting with an attorney. If you have specific questions about your particular situation, you should contact an attorney licensed to practice in your jurisdiction.

    Are your policies and documents protecting your business or getting you sued? Check 10 areas of your business for legal risks and get instant feedback from experienced attorneys right now by taking a short online quiz at Or schedule a confidential, no-cost CM6 Vulnerability Check with Gertsburg Law Firm. CEO Alex Gertsburg will walk you through the minefields in your documents and key processes and tell you how to fix them yourself. Call 440-571-7774 or e-mail to schedule your CM6 Vulnerability Check today. Explore the full CoverMySix legal audit suite at

      i Pub. L. No. 74-198, 49 Stat. 449 (codified as amended at 29 U.S.C. §§ 151–169)
      iii National Captioning Institute, Inc., Case No. 16-CA-18252, 368 NLRB No. 105, slip op. (Oct. 29, 2019), available here
      iv see AdvancePierre Foods, Inc., 366 NLRB No. 133, slip op. at 1 fn. 4, 24–25 (2018)
      v Nat’l Captioning Inst., at 2.
      vi Nat’l Captioning Inst., at 5 (emphasis added).

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  • Next up: Diabetic Eye Disease Awareness Month – The Link Between Diabetes and Your Eyes
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  • Diabetic Eye Disease Awareness Month – The Link Between Diabetes and Your Eyes

    The month of November is Diabetic Eye Disease Awareness Month, the perfect reminder to schedule a comprehensive eye exam if you haven’t done so already. Here’s why it’s so important.


    Does Diabetes Affect Vision?
    Did you know that an eye exam can be the first clue in detecting signs of pre-diabetes and diabetes, as well as other hidden health concerns? According to the Center for Disease Control and Prevention, recent health studies reveal that as many as 24,000 people lose their sight every year to diabetes and diabetic retinopathy, the leading cause of blindness in the U.S.

    Finding health issues early can reduce the risk of blindness by 95 percent¹ and give patients a better chance at preventing damage through early treatment and management.

    Diabetes and Vision
    Blood sugar levels that are either too high or too low can damage the eyes and cause diabetic retinopathy. Diabetic retinopathy is a blanket term for eye disorders caused by diabetes. Unfortunately, at least 40-45 percent of people with diabetes experience retinopathy to some extent, and it is the leading cause of reversible blindness in the United States.²

    Blurry vision is one of the first indications of diabetic retinopathy and can signal the onset of several conditions. One of these occurs when elevated blood sugar levels cause the blood vessels in the eye to swell, a condition known as “macular edema.” Not only does this cause blurry vision, but it can lead to more serious problems. If these blood vessels leak, a condition known as “proliferative retinopathy” occurs, which can also cause an individual to see spots or have trouble with night vision, as well as blurred vision.

    In addition to these conditions, diabetes also increases the chances of developing cataracts by 60 percent.³ Cataracts occur when the normally clear lens of the eye becomes cloudy. Diabetes also increases the chance of developing glaucoma, which occurs when high pressure damages the nerve that connects and sends signals between the eyes and the brain.

    Fortunately, the vision disorders caused by diabetes are largely preventable. Here are some ways to protect the health and functions of your eyes:

    • Manage Blood Sugar
      An important characteristic of diabetic-induced blurred vision is the sudden onset of the blurriness. With a proper nutrition, exercise, and medication plan as established with your doctor, lowering your blood sugar can reduce the chances of developing a vision disorder.
    • Manage Blood Pressure
      Because imbalanced blood sugar levels damage the blood vessels of the eye, it is very important to monitor blood pressure levels to prevent or reduce the severity of damage to these
      important vessels.
    • Get an Annual Eye Exam
      Diabetes can also cause permanent eye damage, which may present itself gradually. Because of the strong occurrence of eye problems with diabetes, it is important to get an eye exam soon after a diabetes diagnosis and continue having regular exams to prevent and diagnose any potential problems. It is important to have a comprehensive eye exam, including dilation, at these appointments to make sure any potential problems are noticed immediately.

    Both cataracts and glaucoma are slow-developing conditions that worsen over time. Fortunately, they can be treated, but not always completely reversed. Cataracts develop slowly over time and one may not realize their presence until they interfere with regular activities. When this occurs, the cloudy lens can be easily replaced with an artificial lens in an outpatient procedure.

    Because glaucoma involves more extensive nerve damage, it is more difficult to treat. There are eye drops, medications, and surgeries that can help restore vision to some extent and prevent further damage.

    Although serious in nature, vision disorders caused by diabetes do not have to interfere with daily life if proper care is taken. If you experience blurry vision and are concerned about a possible vision disorder, contact an eye care professional who can help. Don’t leave the health and function of your eyes to chance, schedule an appointment with your VSP network provider and be proactive in protecting your vision.

    1. National Institute of Diabetes and Digestive and Kidney Diseases
    2. National Eye Institute
    3. American Diabetes Association

    See Well. Be Well.™ Make your eye health and eye care a priority, starting with scheduling a comprehensive eye exam. If you haven’t already, take advantage of your COSE member benefit and opt-in to VSP vision insurance. Contact your COSE sales representative or broker for more info.

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  • Next up: The Northeast Ohio Talent Gap: How International Students Can Help Fill in the Talent Pipeline
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  • The Northeast Ohio Talent Gap: How International Students Can Help Fill in the Talent Pipeline

    Ensuring there’s an adequate flow of workers available in the Northeast Ohio talent pipeline is an ongoing problem in the region and one that will be addressed during the Third Annual Cleveland Internship Summit.

    In the lead up to the Third Annual Cleveland Internship Summit on Feb. 27, Mind Your Business will be running a series of articles previewing some of the sessions that attendees will have the opportunity to sit in on. Today’s preview focuses on the legal aspects of internships. Click here to view the other preview articles for this year’s Internship Summit.

    As far as Joe Cimperman is concerned, the greatest threat to the future prosperity of Northeast Ohio is easy to pinpoint.

    It’s an inability to fill in the talent gap that exists between companies and potential employers.

    Cimperman, president of Global Cleveland, sees companies all around Northeast Ohio that are having a difficult time filling positions, so those jobs stay vacant for long periods of time. One easy solution to filling in this talent pipeline is for companies to utilize the approximately 7,000 international students who are currently in Northeast Ohio.

    This is a topic that Cimperman will delve into more deeply during his session “International Student Interns: Steps and Requirements to Hiring and Why International Talent Is Beneficial to Employers and the Community” during the Third Annual Cleveland Internship Summit.

    This talk will center around not only some of the benefits looking at international students can bring (for instance, they have a tendency to stay longer and it’s a good way to audition potential full-time staffers, thus reducing the aforementioned talent gap) but also creative ways to welcome these students into area internship programs.

    Get the lowdown on other creative strategies you need to create a top-notch internship program by registering today for the Third Annual Cleveland Internship Summit.

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  • Next up: The Preventive Care You and Your Employees Should Be Getting
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  • The Preventive Care You and Your Employees Should Be Getting

    Many Americans do not use preventive services because they are unclear about what constitutes covered preventive care in their health plan. As an employer, you may want to remind your employees about the covered preventive care benefits and age appropriate health screenings available to them. This may prove to be cost-effective for the plan, and help with early disease detection.

    Annual physical

    Most health plans including the COSE multiple employer welfare arrangement (MEWA) cover the cost of an annual preventive health care visit, also known as a physical, as long as you use an in-network doctor. Employees of all ages should be getting an annual physical. This exam covers patient history, vital sign checks, visual exam, physical exam and possibly lab work if the doctor thinks it’s necessary. The lab work may be at an additional cost to your employees depending on your health plan.

    Health screenings

    Other health screenings should be encouraged depending on the age and health history of your employees. A few that we encourage include breast cancer screenings for women ages 50-74, prostate cancer screenings for men age 50+, colorectal cancer screenings for all adults ages 50-75 and comprehensive diabetes screenings for diabetics ages 18-75. The costs of these health screenings may vary based on your health plan.

    Health and wellness

    If you have a COSE MEWA health plan, COSE MEWA and Medical Mutual together offer a comprehensive suite of programs designed to promote healthy lifestyle behaviors. These wellness programs start with a health assessment to provide a baseline and help your employees better understand their health and identify risk factors for disease. Other tools and resources are available so your employees can make positive changes to improve their well-being including the Health Resource Center on My Health Plan, fitness discounts, access to the QuitLine Program for tobacco users and a WeightWatchers® reimbursement.

    Disease management program

    If you or one of your employees are diagnosed with or have been living with a chronic health condition, Medical Mutual’s Disease Management program can offer education and support. This program is available for employees who have been diagnosed with one or more of the following conditions:

    -          Asthma

    -          Chronic obstructive pulmonary disease

    -          Congestive heart failure

    -          Coronary artery disease

    -          Diabetes

    For more information on COSE MEWA’s Health and Wellness benefits through Medical Mutual, please contact your broker or click here. If your you and your employees are currently enrolled and are interested in Medical Mutual’s Disease Management program, they can check eligibility and enroll by calling 1-800- 861-4826, option 2.

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  • Next up: The Recruiting Industry Can be a Racket! Why “Culture Fit” is Critical
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  • The Recruiting Industry Can be a Racket! Why “Culture Fit” is Critical

    Check out this surprising perspective from the CEO of Zephyr Recruiting about the disconnect between the recruiting industry and the employers and job seekers it serves.


    The recruiting industry can be such a racket. Yes, I actually meant to say that. I have seen first-hand how disconnected the recruiting industry can be from the employers and job seekers it serves. 

    In order to understand why I make such a bold claim, you have to understand the basic business model of the industry. Now, to be fair, not all recruiting firms use this model—however, it is the basis for most firms out there. 

    To start, most firms are contingency-based, which seems like a great idea on the surface for the employer because there is no fee unless you choose to hire the presented candidate. No risk, right?  

    The second critical thing to know is recruiters are most often paid 100% commission on the roles they fill and are also responsible for “bringing in the business.” This is considered a hybrid sales/recruiter. They only get paid if they successfully find a client and fill the role.  

    This combination can often times set up the recruiter to care about one main thing—filling the role as fast as possible; otherwise, it is famine for them. In fact, it is a very high-pressure job with a high burn-out rate and, ironically, a very high turn-over rate. Their motivation is not about finding the employer the best possible employee, but to fill it as fast as they can so they can feed themselves and their families.  

    At the surface this may not seem that bad, so why do I think this is such a terrible approach? Because what this really does is it treats human beings, the job seekers, as commodities—putting profit before what is best for the humans involved. 

    The other way in which the industry is a racket is the exorbitant fees charged by these firms. Typically, the fee is between 20% - 35% of the annual salary of the new hire. The reason for these fees is due to the high failure rate in which the losses have to be built into the fee.  

    And again, since the recruiter needs to fill the role as fast as possible, they often spend no more than 15-30 minutes with the job seeker, only asking about skills and experience. They typically spend about the same amount of time with the employer, getting a basic understanding of the role, salary, and skills requirements.  

    What is left out is culture fit, which is the number one predictor of successful retention of a new hire.  At Zephyr, we believe culture fit includes at least these main factors: 

    Core values 
    Mindset and Attitude
    Team Dynamics

    I tried to locate data on the retention rate of employees hired through recruiting firms and have found nothing. Sometimes the absence of data is as profound as the data itself. My assumption is this information is not shared for a reason. What I can say is that every single one of our clients who have used a traditional recruiting firm have had no luck with the hires sticking around and working out. Often times, they have paid between $15,000 - $30,000 PER HIRE just to lose them within six months. Now THAT is a racket! 

    I am actually not trying to paint a negative picture of the recruiters themselves. They are often victims to this model and rarely last. It is the standard industry business model I am questioning. 

    Human beings are NOT commodities. They are partners, teammates, friends and THE only reason any business can provide its service or products to its customers. Without employees, a business cannot exist. 

    Recruiting support from an outside source needs to be a service that balances the value of bringing on a RIGHT FIT™ employee with the time it takes to do this important work. Recruiting should be akin to matchmaking, finding the RIGHT FIT™ for both the job seeker and employer.  

    RELATED: What is a RIGHT FIT employee?

    Recruiters should not be paid only if they fill a role, but for the work they do. This will allow them to be committed to quality work, not quantity work. The pressure to fill roles fast should be removed, allowing the recruiter to cater to both the employer AND the job seeker. The recruiter can then focus on finding the right match while giving the job seeker the time, attention, and respect they deserve throughout the recruiting process. 

    Recruiters should not be the salesperson, responsible for bringing in the revenue. This creates a conflict of interest no matter how you slice it. 

    At Zephyr we created this framework because it is the right thing to do. We deeply believe everyone deserves to love their job and every employer deserves to love their team. 

    Erin Longmoon is the CEO of Zephyr Recruiting, which she founded in response to her clients’ needs for help in with building effective and successful teams. Zephyr Recruiting serves the small business community—the mom and pop places that are the backbones of our communities and our economy.

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