Question: We are offering non-paid positions (volunteer work) to interns working at the office on research projects, collecting data and conducting study projects. What liabilities do we need to be aware of as these volunteer interns will be working on company premises?
Answer: One of the primary issues you face is in paying or not paying your interns. The Fair Labor Standards Act (FLSA), which sets standards for the basic minimum wage and overtime pay, affects most private and public employment. Covered and nonexempt individuals who are “suffered or permitted” to work must be compensated under the law for the services they perform for an employer. Internships in the for-profit private sector will most often be viewed as employment, unless the test described below relating to trainees is met.
Interns in the for-profit private sector who qualify as employees rather than trainees typically must be paid at least the minimum wage as well as overtime compensation for hours worked over 40 in a workweek.
Test for Unpaid Interns
The determination of whether an internship or training program meets this exclusion depends upon all of the facts and circumstances, and the following six criteria must be applied when making this determination:
- 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.
- The internship experience is for the benefit of the intern.
- The intern does not displace regular employees, but works under close supervision of existing staff (this is the test that shows the intern is not answering phones, delivering mail, filling in for an absent employee, etc., and that the intern is doing work that is for his or her benefit and not necessarily for the benefit of the employer).
- 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.
- The intern is not necessarily entitled to a job at the conclusion of the internship.
- The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
If all of the above factors are met, an employment relationship likely does not exist under the FLSA, and the act’s minimum wage and overtime provisions do not apply to the intern. This exclusion from the definition of employment is necessarily quite narrow because the FLSA’s definition of “employ” is very broad.
Important: As of May 25, 2016, the Second Circuit (New York, Vermont, and Connecticut) and the Eleventh Circuit (Alabama, Georgia, and Florida) have rejected the Department of Labor’s six-factor test and have adopted the “primary beneficiary” relationship test, which takes into account the economic reality between the intern and the employer. The primary beneficiary relationship test has seven factors:
- The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee — and vice versa.
- The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
- The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
- The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
- The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
- The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
- The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.
In examining these factors, no one factor is dispositive and courts should weigh the factors to determine the appropriate result depending upon the facts before them. The factors are also not exhaustive and, in certain situations, additional evidence may be appropriate to consider.
Here is our practical advice before you hire an intern:
- Develop an intern policy and define the job carefully so that both parties are clear about job duties and expectations. This reduces misunderstandings that can lead to lawsuits. The policy should define the basic internship program, such as compensation structure (or the fact that interns will be unpaid), eligibility requirements, and the intern’s at-will status. Make sure the policy does not establish what could be viewed as a legally binding contract. Never infer the promise of employment for a specified period.
- Define supervisory roles and supervisor/intern evaluations. Reliable supervision is the key to preventing problems, including injuries, discriminatory actions, and performance failings. Make sure all supervisors know who is overseeing the work of each intern.
- If possible, obtain formal documentation from the intern’s college explaining the educational relevance of the internship if the intern will earn credits.
- Ask whether the school provides liability insurance to cover damage caused by a student. Many schools carry the coverage. Also, if the company has employment practices liability insurance, check whether it extends to interns.
Once the intern is on board:
- Manage interns as closely as employees, if not more so. The company can be held responsible for the actions of any workers, including unpaid interns, while they are performing work for the company. Courts will view interns like employees, as “agents” of the company.
- To ensure interns are paid correctly, maintain time records. To avoid the possibility of FLSA violations, companies who find themselves in the position of “employer” should ensure their interns accurately capture and are paid for all of their hours of work.
- Apply the company’s workplace policies to interns, for both consistency and good positive employee relations reasons. Interns who are considered employees have all of the legal protections regular employees have, and even unpaid interns may be able to pursue claims under Title IX, which bans sex discrimination in “any education program” or pursue common-law job-bias claims, such as infliction of emotional distress.