Labor & Employment Law

Guidance For Interns - About Time!

In time for Summer and college breaks, the US Department of Labor has issued guidance on the use of unpaid interns.  This guidance could not come soon enough as far as I am concerned. I am amazed, particularly in this economy, how many employers use 'interns' to perform work that should be done by employees. The reality is that the test for unpaid interns is intended to be construed VERY narrowly. And, as an employer, if you are considering using unpaid interns, be extremely careful.

The following is the test used by the US DOL when evaluating interns in the private sector.  The following six criteria must be applied when making this determination:

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 ALL of the factors listed above are met, an employment relationship does not exist under the FLSA, and the Act's minimum wage and overtime provisions do not apply to the intern. In other words, if the intern is intended to perform work over the summer that employees on vacation would otherwise be doing, it's not an internship!

Follow this link to:  United States Department of Labor - Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act

Full post as published by Strategic HR Lawyer on April 30, 2010 (boomark / email).