Rosen Law Office

On-the-job experience is a valuable thing.  As a graduate of Northeastern University School of Law – a school known for its cooperative education program—no one knows this better than me.   Unpaid internships allow students to get their feet wet.  With the economic downturn, students recognize the value of adding experience –even unpaid—to their resumes. However, when an employer uses unpaid interns to supplement its regular workforce, that’s probably a wage-and-hour violation.

Many employers scrupulously comply with Federal and State overtime, minimum wage, and payment of wages laws –not to mention income tax withholding and worker’s compensation laws—but think nothing of allowing a college student to work alongside regular employees, for no wages at all. The college student might be quite content with receiving only experience in return.   However, Federal Law doesn’t allow the parties to benefit from this voluntary relationship—at least in a for-profit context.

“Individuals who are ‘suffered or permitted’ to work must be compensated under the law for the services they perform for an employer.”  Interns –even those receiving academic credit—must be treated as employees unless all of the following criteria are met:

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

Number four is the kicker. An employer may not derive any immediate advantage from the activities of the intern. That means no filing, no answering phones, no sorting mail. Nothing that actually helps the employer, in other words:

“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.”

If you’re still wondering whether that bright young person in your office is an intern or an employee, or want advice on having interns while still complying with the law, give us a call.

–Nora Adukonis