You get a call from a student at the local university who is interested in an unpaid internship for a semester. Should you take her up on it? The obvious answer would be yes, assuming she’s qualified. She can help, the price is right and these are tough economic times. But Chris Olmsted, of San Diego-based law firm Barker Olmsted & Barnier, wrote in a recent article that employers need to be aware of state and federal laws that could require them to pay volunteer student interns.
The U.S. Department of Labor has established six criteria. All of these must be met for a volunteer intern to avoid being considered an employee under the Fair Labor Standards Act. The criteria are:
- The training given must be similar to what would be provided at a vocational school.
- The training must be for the student’s benefit. * The student must not displace regular employees. Instead, he or she has to work under an employee’s observation.
- The employer cannot gain any immediate advantage from the trainee’s or student’s activities. In fact, in some cases the employer’s operations might be impeded by the training.
- The student cannot be automatically entitled to a job after the training or internship period.
- The employer and student both understand that the student will not get paid.
State regulations can be even more stringent, as they are in California. There, employers also have to show that the training is part of an educational curriculum. The students or trainees cannot get employee benefits. The training has to be generalized so that the students will qualify for work in any similar business, rather than just for the company that is training them. The company also can’t screen volunteers the same way it does employees. It can only screen for criteria that relate to an independent education program. And any ads for the non-paid position must be clear that the position is for education or training only and not for employment. However, employers can mention that qualified students can later be considered for employment at the company. Olmsted points out that it can be difficult for employers to show they did not get an immediate benefit from the trainee’s activities. He tells employers that, when they’re in doubt, they should pay the intern or trainee minimum wage or simply not bring a volunteer intern on-board at all.