The federal Fair Labor Standards Act details criteria for workers which would allow them to work as an unpaid intern or trainee. These criteria include:
The internship is considered “training” for future employment and is for the benefit of the student.
The training must be similar to that which would be obtained by the student in a vocational school.
No regular employee is displaced by the student, rather the student works under close observation of an employee or supervisor.
Both parties understand that the student is not necessarily entitled to a job once the unpaid internship is over.
Employers of unpaid interns must derive no immediate advantage from the intern’s work—and, in fact, company operations may be hindered by student training.
Both the student and the employer have a clear understanding that no wages will be paid for the time spent training.
In other words the internship must look much more like training than like a job. The issue of whether or not the employer receives an advantage from the intern’s work can be a murky one. Despite the fact that the internship is meant to primarily benefit the student, it is likely the employer will receive some level of benefit from having an extra worker on board. Concerning students working at colleges as interns, several Department of Labor rulings have suggested that so long as the internship is part of the curriculum and predominantly provides benefits to the intern, the issue of whether the employer receives benefit is a non-issue. The California Division of Labor Standards Enforcement has taken even a broader view stating only that the advantages to the employer must be offset by close employer supervision and a financial lay-out for training on the part of the employer.
Those who offer unpaid internships must be able to show that the work is an integral part of the student’s course of study, that the student will receive credit or that the internship is required for graduation and that the student will learn a specific skill, process or other business function. The employer must also ensure the student will perform work that others employees perform with a purpose of learning rather than performing the task for the employer. Most often, the student will provide benefit to the employer less than 50% of the time and will be in learning/shadowing mode the remainder of the time.
As an example, an intern in a restaurant is required to perform specific culinary tasks which directly benefit his or her learning experience. The intern must also be under constant, close supervision. Therefore, requiring the intern to bus tables or wash dishes would definitely change the internship to an employer-employee relationship which would require regular payment at California’s minimum wage. In the same vein, interns for film studios who regularly perform routine tasks such as delivering messages, filing tapes or clipping newspaper articles would not fit the criteria for an intern or trainee because they are performing the same tasks as a regular employee. In other words, interns or trainees who do the work of a normal employee should be paid as a normal employee in every way.
How is an Intern Different from a Trainee?
The term “intern” is broadly used to denote any employee not being paid for his or her work who is still in school during the time he or she is working. Interns who meet these criteria are generally exempt from wage or overtime rules. A second category of workers who are similar to interns are known as trainees and may also be exempt from minimum wage requirements and state and federal overtime rules. Generally speaking the term intern is used in the educational and medical field while trainees may be hired in any field or profession—although the terms are often used interchangeably. The California Division of Labor Standards Enforcement will carefully scrutinize trainee arrangements in order to ensure they are valid exchanges of work for education.
Most of the criteria for trainees is the same as that for interns. For both interns and trainees the screening process for the job must not be the same as that used for regular employees—i.e. the advertisement must clearly state “unpaid” and applicants must have a clear understanding that they are not applying for paid employment. The more a trainee or intern job resembles that of a traditional job the less likely it is to be upheld as education-in-lieu-of training. Rather than assigning the trainee or intern only menial tasks, employers must ensure there is substantial training work involved—that the intern or trainee is receiving an education which will directly benefit them in their chosen profession. Trainees and interns must additionally be currently enrolled in an educational or vocational program which is directly related to their training work.
California DLSE Dislikes Unpaid Training Arrangements
Overall, the California DLSE disapproves of unpaid training arrangements and should those arrangements not strictly follow all criteria for internships or trainee positions the department may invalidate the arrangement. Should such invalidation occur, the employer will be held liable for back wages and overtime as well as fees ranging from $100 to $250 for each intern or trainee who was not properly compensated for his or her work. Many experts believe that an internship or trainee position actually produces little benefit for the worker or the employer. With no pay, there is little motivation for the intern to do a good job, and interns can become disillusioned at the amount of work they do for no monetary compensation. This disillusionment can color the interns entire attitude about working in their chosen profession.
Pershing Square Law Firm is Your Employment Advocate
If you feel your employer took advantage of you through an unpaid internship or trainee position, the attorneys at Pershing Square Law Firm can help. We understand that many employers use the intern/trainee positions merely to obtain free labor and we are committed to ensuring these violations do not continue. Our attorneys want you to be compensated for all work you performed which fell outside the narrowly-defined intern/trainee guidelines. Our goal is to resolve your employment issue in the way that benefits you and your future the most. We have the experience and a thorough knowledge of federal and California labor laws and will use that knowledge to your advantage. Click here to get started.