School’s Out for the Summer: What Employers Should Know About Student Interns and the Fair Labor Standards Act

As summer vacation officially commences, many students opt to pursue internship opportunities. Unfortunately, many employers do not realize the potential implications of taking on student interns. Of particular note is the implications that the Fair Labor Standards Act (“FLSA”) may have on this long-standing practice.

Most employers are well versed on many provisions set forth in the FLSA (such as the 40-hour work week, national minimum wage, guaranteed overtime, child labor protections, etc.). However, its application becomes more nuanced in that many employers are unaware that many of its standards may also apply to individuals it may consider to be “volunteers” or “interns.”

The primary point of inquiry is determining whether a volunteer or intern can be considered an “employee.” Notably, the term “intern” does not appear in the FLSA. While it does establish that one may “volunteer” their services, certain criterion must be met so as to ensure that an employer is not circumventing this provisions under the guise of good-will.

Internships

The FLSA broadly defines employment as “to suffer or permit to work.” The U.S. Department of Labor has clearly articulated a six-factor test for employers to use in assessing whether a volunteer/intern would qualify as an “employee” for purposes of the Act.  While it has opined that this primarily applies to private-sector employers, it is important for public-sector employers to understand as well. That test is set forth below:

  • Whether 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;
  • The internship experience is for the benefit of the intern;
  • The intern does not displace regular employees, but works under the close supervision of existing staff;
  • The employer that provides the training derives no immediate advantage from the activities of the inter; and on occasion its operations may actually be impeded;
  • The intern is not necessarily entitled to a job at the conclusion of the internship; and
  • The employer and the intern understand that the intern is not entitled to wages for time spent in the internship

All of the above factors must be met to preclude the establishment of an employee relationship. In contrast, in the public sector, unpaid interns will generally be permissible so long as there is no expectation of compensation. To that end, public employers such as school districts and municipalities must exercise due caution to ensure that this is clearly communicated to any prospective interns.

Volunteer Activities

Another issue that may come up is whether an individual who is already employed may “volunteer” their time. In short, the employee may not volunteer their time for their employer if the work being performed is the same as that which they would ordinarily be providing. They may, however, volunteer for their current employer to do different type of work, or volunteer for a different public body doing the same type of work.

The Department of Labor has defined “volunteer” in the following manner:

  • An individual who performs hours of service for a public agency for civic, charitable, or humanitarian reasons;
  • without promise, expectation or receipt of compensation for services rendered, is considered to be a volunteer during such hours.
  • Individuals shall be considered volunteers only where their services are offered freely and without pressure or coercion, direct or implied, from an employer. “Congress did not intend to discourage or impede volunteer activities undertaken for civic, charitable, or humanitarian purposes, but expressed its wish to prevent any manipulation or abuse of minimum wage or overtime requirements through coercion or undue pressure upon individuals to “volunteer” their services.”
  • An individual shall not be considered a volunteer if the individual is otherwise employed by the same public agency to perform the same type of services as those for which the individual proposes to volunteer.

Volunteers must be addressed slightly differently than internships. While the primary purpose of an internship is educational in nature, volunteer opportunities (or fundraising activities) may also invoke the FLSA. In some instances, a non-for-profit or public entity may work closely with a for-profit entity. By way of example, if an individual was volunteering in the same capacity and performing the same duties as a regular employee of the for-profit organization, it is likely that the FLSA would apply.

By: Laura M. Julien

For more information on the Fair Labor Standards Act, and how it may affect you as an employer or employee, or any other employment law issues, please contact Peter K. Wilson, Bernard K. Weiler, Jessica L. Briney, or Laura M. Julien, of Mickey, Wilson, Weiler, Renzi & Andersson, P.C., 2111 Plum Street, Suite 201, Aurora, Illinois 60506. Telephone Number:630-801-9699, or by E-mail at: pkw@mickeywilson.combkw@mickeywilson.com; jlb@mickeywilson.com; and lmj@mickeywilson.com

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Employment Law Update: June 1, 2015: United States Supreme Court decides EEOC v. Abercrombie & Fitch Stores, Inc.; applies a “motivating factor” rather than “actual knowledge” standard in a Title VII claim with respect to a prospective employee’s need for a religious accommodation

In 2008, Abercrombie and Fitch declined to hire Samantha Elauf, a practicing Muslim, because her black headscarf did not comply with the company’s “Look Policy.”  Elauf wore the headscarf, which she wears for religious reasons, to her interview for a position at an Abercrombie store.  During her interview, the company’s Look Policy was discussed, which prohibits employees from wearing caps or other types of headwear.  However, Elauf’s reason for wearing the headscarf, the applicability of the Look Policy to her headscarf, or the need for an accommodation, were not discussed or mentioned.  Abercrombie admitted that it assumed or suspected that Elauf wore the headscarf for religious reasons, and ultimately, declined to hire Elauf because the fact that she wore a headscarf conflicted with the company’s Look Policy and prohibition against caps and other headwear.

The Equal Employment Opportunity Commission (the “EEOC”) filed suit against Abercrombie on Elauf’s behalf, claiming that the company’s refusal to hire Elauf violated Title VII of the Civil Rights Act of 1964, which, in part, prohibits a prospective employer from refusing to hire an applicant because of the applicant’s religious practices when the practice could be accommodated without undue hardship.  Abercrombie argued in part that there was no Title VII violation because it lacked “actual knowledge” that Elauf required an accommodation since no such accommodation was requested by Elauf.  The EEOC prevailed at the District Court level, but the Tenth Circuit Court of Appeals reversed, and found that an employer cannot be liable under Title VII for failing to accommodate a religious practice until the applicant or employee provides the employer with actual knowledge of his need for an accommodation.

However, in its June 1, 2015 decision, the United States Supreme Court reversed the decision of the Tenth Circuit, and held that in order to prevail on such a claim under Title VII, an applicant need only show that his need for an accommodation was a “motivating factor” in the employer’s decision, not that the employer had actual knowledge of his need for the accommodation.  In reaching this decision, the Supreme Court specifically found that liability under Title VII for failing to accommodate a religious practice does not include an actual knowledge requirement on the part of the employer.  Thus, rather than imposing an actual knowledge standard, the Supreme Court held that Title VII prohibits certain motives, regardless of the employer’s actual knowledge.  Ultimately, the Supreme Court held that an employer cannot make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.

For more information on the provisions of Title VII, and how this decision may affect you as an employer or employee, or any other employment law issues, please contact Peter K. Wilson, Bernard K. Weiler, Jessica L. Briney, or Laura M. Julien, of Mickey, Wilson, Weiler, Renzi & Andersson, P.C., 2111 Plum Street, Suite 201, Aurora, Illinois 60506. Telephone Number:630-801-9699, or by E-mail at: pkw@mickeywilson.com; bkw@mickeywilson.com; jlb@mickeywilson.com; and lmj@mickeywilson.com