It’s spooky season, which means you may be binging on horror movies or otherwise thinking about vampires, ghosts, and other things that go bump in the night. As an employment lawyer, though, what are some of the things I hear from clients that keep haunting my dreams?

<ul><li>“Unpaid Internships.” Eek! Unpaid internships can only be legal if they meet specific criteria under the Department of Labor’s “primary beneficiary test.” Spoiler alert for almost every unpaid internship plan I’ve ever read – they typically don’t.

<ul><li>“1099 employee.” Shudder. There’s no such thing! You’re either an employee and get a W-2 or an independent contractor and receive a 1099. Independent contractor misclassification is rampant and dangerous. Independent contractors are not employees – don’t label them as such.</ul></li>

<ul><li>“She doesn’t get overtime, she’s salaried.” *covers eyes* Being paid a guaranteed weekly salary (above the legal threshold) does not guarantee an employee is properly classified as exempt from the overtime requirements of the Fair Labor Standards Act – they must perform those certain duties consistent with the proposed exemption.</ul></li>

<ul><li>“I paid him severance, he won’t sue.” Boo! That’s the sound of a lawsuit you can get anyway. Without a legally enforceable severance agreement in place, the payment of severance to an employee doesn’t guarantee anything – only that you’ve given the departing employee a gift. </ul></li>

<ul><li>“We’ve told the employee about it, but nothing in writing.” Grrr. Nothing makes the defense of a termination more difficult than claiming a termination for repeated misconduct is justified when there is no record the misconduct was actually repeated. Document, document, document!</ul></li>

<ul><li>“Our payroll vendor handles our policies.” Noooo. Your payroll vendor handles policies – not your company’s policies. Effective workplace policies should be tailored to your business, not coming out of a can.</ul></li>

Happy Halloween from RKW Law Group!