When Should an Internship be Paid?
- United States
- 07/02/2008
While internships come in many shapes and sizes, one of the common questions when developing an internship program is whether an employer must pay an intern for his/her work. The answer to this question lies in an analysis of the on-the-job experience that the student will have in relation to the standard under the Fair Labor Standards Act (“FLSA”), a federal law that requires employers to pay minimum wage for work performed.
Pursuant to the FLSA, the U.S. Department of Labor (“DOL”) has developed the following six criteria for differentiating between an employee, who must be paid at least minimum wage, and an intern, who may be unpaid:
1. The training, even though it includes actual operations of the facilities of the employers, is similar to that which would be given in a vocational school. It’s not enough just to put the interns to work with supervision.
2. The training is for the benefit of the student. Interns can’t just be used to run errands or catch up on filing. Although such tasks might be incidental to a position, the majority of the experience must be designed with the student’s education in mind.
3. The student does not displace a regular employee, but works under the close observation of a regular employee or supervisor. Employers should not reallocate work to unpaid interns after a regular employee quits.
4. The employer provides the training and derives no immediate advantage from the activities of the student; and on occasion, the operations may actually be impeded by the training.
5. The student is not necessarily entitled to a job at the conclusion of the training period. If the student is, the experience looks more like the training period at the start of a new job, for which the student should be paid.
6. The employer and the student understand that the student is not entitled to wages for the time spent training.
While the DOL closely adheres to these factors, courts tend to look at the internship program as a whole. Consequently, not all six factors have to be present in order for the student to be considered a trainee. The experience, however, should look more like a training or learning experience than a job. For more information, please contact Kathleen Liever
at 813.228.7411.
