Unpaid Intern over maternity leave

[skmcgowen]

I fill two positions at my current employer, at the convenient price of one. I was hired full-time after notifying my employer that I was pregnant, and I am due within the month. I have an unpaid intern who was hired for PR/Marketing/Events, but I am also in charge of accounts receivables, accounts payables, and some HR stuff. I have been training the intern to take over the daily operations for the company while I am on maternity leave, but the Executive Director has refused to pay her while I am gone. He insists she was hired for the position as an unpaid employee, but taking over for me during maternity leave was not part of the job description. My leave is unpaid. This I expected. But is it legal for him to expect her to take over a full-time position for up to 6 weeks, unpaid? I did not expect him to pay her my salary, but an hourly wage is a reasonable expection.

I have planned to cut short my maternity leave as a result of this. It is so far beyond my ethical spectrum that I cannot fathom even making this kind of a request of an employee, intern or not. My question regarding my truncated leave is: Is my employer obligated to the 6 full weeks? In other words, if I want to take 2 weeks off to begin, and another week here and there, is he obligated to honor it?

We are not subject to FMLA because we have fewer than 15 employees, even though we are technically part of the state (we are run like a non-profit, and the majority of our operating budget comes from an endowment, not state allocations). I am also not eligible for things like vacation, health care, sick leave, etc., because I am still under the 90 day probationary period.

I realize this is a long, complicated question, but I am at my wits' end with this employer.

[unionwayne]

What state do you live in?

[skmcgowen]

I live in Georgia.

Thanks for considering my predicament!

[LConnell]

Your employer would be in violation of wage and hour law by not paying the intern a wage during the time he/she is performing work for the employer. A person ceases to be a volunteer and goes to a paid status when the owrk performed is productive and in support to the operations of the employer. That intern would have a valid claim, should he/she file a claim with the DOL.

As far as leave is concerned, you are not legally entitled to leave at all. As you said, your employer is not required to comply with FMLA. (FMLA requires employers to have at least 50 employees in a 75 mile radius.) Also, as an employer with less than 15 employees, the employer is not required to comply with federal anti-discrimination measures for pregnancy.

Let me know if you have any other questions.

[skmcgowen]

The maternity leave is included in our employee policies manual, which we all sign agreement to abide by, including our executive director. Does this change anything as far as the employer's obligations in this matter?

And, is there any particular code I can cite if i choose to bring to my employer's attention that we will be in violation in not paying our intern?

Again, thank you very much for your guidance in thhis matter. I cannot tell you how much I appreciate it.

[LConnell]

If your handbook promises leave, your employer needs to honor your leave UNLESS there is some clause that says that they can change their policies at any time and they did.

As far as the intern is concerned, information about volunteering may be found at: http://www.dol.gov/esa/whd/FOH/FOH_Ch10.pdf However, the principal place where it can be found is in the definition of employ. The Fair Labor Standards Act defines the term "employ" as "to suffer or permit to work". Thus, when an employer permits a person to work, that person generally has to be paid the minmum wage and any overtime premium. For example, this information may be found at 29 USC subsection 203(g) and the definition of the emplioyment relationship. I'll need to do some additional digging to give you that citation.