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As employment law constantly changes, the attorneys at Bean, Kinney & Korman stay up to date on the law as it develops. Our blog topics focus on those changes and what you need to know about them, ranging from severance agreements and the FLSA to social media in the workplace and recent court decisions. If you are interested in having us cover a specific topic, please let us know.

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Thinking About Hiring an Unpaid Summer Intern?
April 24, 2013
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College Students - Internship (00313977).jpg

With summer approaching, you may be considering hiring an unpaid intern for the summer months. The process for doing so seems pretty cut and dry.  However, litigation in the area of internships has recently increased due to several lawsuits where interns sued their former employers alleging violations of state and federal wage and hour laws by failing to pay interns for work that should have been performed by paid employees.

In order to determine whether your intern is entitled to minimum wage or overtime, the U.S. Department of Labor (DOL) has a six-factor test to determine if the intern should in fact be treated and classified as an employee who must be paid.

 

The factors the DOL considers when classifying an intern vs. an employee are the following:

  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 these factors are present, then the position is in fact an unpaid internship.  However, many states have additional factors they consider to determine whether a worker is an intern or an employee under state wage and hour laws.  So be sure to also review your state’s factors.

It is strongly recommended that employers review their internship program to see if it meets these factors and review the state specific factors to ensure that your unpaid internship qualifies as an unpaid position.