One area that may confuse employers relates to whether an intern must be paid wages in accordance with the Fair Labor Standards Act (FLSA). Generally speaking, employers must pay at least the minimum wage and overtime to their interns under federal and state regulations. The FLSA defines the term employ very broadly as to suffer or permit to work. Any employee who is covered and non-exempt under the law who are suffered or permitted to work must be compensated for the services they perform. Internships in the for-profit private sector will most often be viewed as employment, and therefore must be paid at least the minimum wage and overtime compensation for hours worked over forty in a workweek. (See U.S. Dept of Labor Wage and Hour Division Fact Sheet #71: Internship Programs Under the Fair Labor Standards Act)
There are some exclusions, however. In making the determination as to whether an intern is excluded from the requirement of being paid compensation under the FLSA, the following criteria must be considered
- The internship, even though it includes actual operation of the facilities of the employer, is similar to training that would be given in an educational environment;
- The internship is for the benefit of the intern;
- The intern does not displace a regular employee, but works under close observation of existing staff;
- The employer that provides the training derives no immediate advantage from the activities of the intern and, on occasion, the employers operations may actually be impeded;
- The intern is not necessarily entitled to a job at the completion of the internship; and
- The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
If you have questions about how this affects you, contact one of the attorneys at Winegar, Wilhelm, Glynn & Roemersma today.
THE FOREGOING IS INTENDED TO BE A GENERAL DISCUSSION OF THE LAW AND IS NOT INTENDED TO BE CONSTRUED AS LEGAL ADVICE. IF YOU HAVE A SPECIFIC QUESTION, PLEASE CONTACT OUR OFFICE AND SPEAK WITH AN ATTORNEY.