04.27.10

If I only had an Intern: Ever wanted to hire a Summer intern?

Posted in Education, Employment and Labor at 2:14 pm by Michael Dalrymple

If I only had an Intern:  Ever wanted to hire a Summer intern?

The Fair Labor Standards Act (FLSA) requires employers to pay almost all employees for the services they perform. One possible exception is interns.  The Department of Labor will consider an intern to be an employee unless each of the factors below relating to trainees is met. Importantly, if an intern does not satisfy each of the six factors, he or she must be paid at least the minimum wage and overtime compensation for hours worked over forty in a workweek. 

The Department of Labor permits For-profit private sector internships to be unpaid if the intern’s work  serves only his or her own interest an employee of another who provides aid or instruction. This commonly applies to interns who receive training for their own educational benefit.

The following six criteria must be satisfied before classifying someone as an unpaid intern: 

1.         The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;

2.         The internship experience is for the benefit of the intern;

3.         The intern does not displace regular employees, but works under close supervision of existing staff;

4.         The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;

5.         The intern is not necessarily entitled to a job at the conclusion of the internship; and

6.         The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If each criteria is satisfied, the intern will not be considered an employee and the FLSA’s minimum wage and overtime provisions do not apply to the intern. The Department of Labor provides the following guidance when structuring an internship program. 

Similar To An Education Environment And The Primary Beneficiary Of The Activity

In general, the more an internship program is structured around a classroom or academic experience as opposed to the employer’s actual operations, the more likely the internship will be viewed as an extension of the individual’s educational experience (this often occurs where a college or university exercises oversight over the internship program and provides educational credit). The more the internship provides the individual with skills that can be used in multiple employment settings, as opposed to skills particular to one employer’s operation, the more likely the intern would be viewed as receiving training. Under these circumstances the intern does not perform the routine work of the business on a regular and recurring basis, and the business is not dependent upon the work of the intern. On the other hand, if the interns are engaged in the operations of the employer or are performing productive work (for example, filing, performing other clerical work, or assisting customers), then the fact that they may be receiving some benefits in the form of a new skill or improved work habits will not exclude them from the FLSA’s minimum wage and overtime requirements because the employer benefits from the interns’ work.

Displacement And Supervision Issues

If an employer uses interns as substitutes for regular workers or to augment its existing workforce during specific time periods, these interns should be paid at least the minimum wage and overtime compensation for hours worked over forty in a workweek. If the employer would have hired additional employees or required existing staff to work additional hours had the interns not performed the work, then the interns will be viewed as employees and entitled compensation under the FLSA. Conversely, if the employer is providing job shadowing opportunities that allow an intern to learn certain functions under the close and constant supervision of regular employees, but the intern performs no or minimal work, the activity is more likely to be viewed as a bona fide education experience. On the other hand, if the intern receives the same level of supervision as the employer’s regular workforce, this would suggest an employment relationship, rather than training.

Job Entitlement

The internship should be of a fixed duration, established prior to the outset of the internship. Further, unpaid internships generally should not be used by the employer as a trial period for individuals seeking employment at the conclusion of the internship period. If an intern is placed with the employer for a trial period with the expectation that he or she will then be hired on a permanent basis, that individual generally would be considered an employee under the FLSA. 

See Department of labor, Wage and Hour Division Fact Sheet 71.

For more information about this or other legal topics, please e-mail Michael Dalrymple.

http://www.dalrymple-law.com

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