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.
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.
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: firstname.lastname@example.org; email@example.com; firstname.lastname@example.org; and email@example.com.