Hiring an intern at your company is a great way to give a college student or new professional some hands-on experience in your industry.
Companies often hire interns to do lower-level work in exchange for the opportunity to get a foothold into a new industry and learn from behind the scenes.
However, many companies have historically hired interns on an unpaid basis in order to save costs on jobs that would otherwise go to entry-level employees.
Though very common, the practice of employing unpaid interns may actually violate state and federal labor laws.
Here's how to hire interns, the legal way.
There may be many reasons for offering an unpaid internship. Among others, it’s an opportunity for your company to make an impression on potential future recruits who might eventually be ready and excited to work for your company full-time.
Whatever your motivation, perhaps the biggest question you’ll have to answer is whether or not to pay your intern.
Under the Fair Labor Standards Act (FLSA), most interns in the for-profit private sector will be considered employees that are subject to the FLSA’s minimum wage and overtime requirements. However, if an intern is not an employee within the meaning of the FLSA, then the FLSA’s minimum wage and overtime requirements do not apply.
The U.S. Department of Labor (DOL) applies a primary beneficiary test (outlined below) to determine whether an intern for a for-profit private sector business is considered an employee for purposes of the FLSA.
The DOL announced its switch to the primary beneficiary test from the six factor test in January 2018. If you have used the six factor test in the past for interns, be sure to review the seven factors that are included in the primary beneficiary test.
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Not all federal courts rely on the primary beneficiary test, however. And different requirements may also exist under state and local wage and hour laws. For example, the New York State Department of Labor (NYSDOL) does not use the primary beneficiary test. The NYSDOL uses a test consisting of 11 criteria, all of which must be met in order for an intern to be unpaid.
Lastly, keep in mind that the DOL’s test only applies to for-profit businesses. Unpaid internships in the public sector and for non-profit charitable organizations, where the intern volunteers without expectation of compensation, are generally permissible.
The Department of Labor uses a test called the Primary Beneficiary Test to determine if an intern for a for-profit business is considered an employee and therefore entitled to minimum wage, overtime, and other protections of the FLSA.
The primary beneficiary test answers the question: who is primarily benefiting from the work relationship, the intern or the worker? If it’s the employer, then the intern is an employee and must be paid. If it’s the intern, then no pay is required.
The primary beneficiary test is a flexible test that looks at the following seven factors, with no single factor being determinative:
The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee — and vice versa.
The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.
As the DOL states,
"If analysis of these circumstances reveals that an intern or student is actually an employee, then he or she is entitled to both minimum wage and overtime pay under the FLSA. On the other hand, if the analysis confirms that the intern or student is not an employee, then he or she is not entitled to either minimum wage or overtime pay under the FLSA."
Be sure to evaluate the requirements under applicable state and local laws before implementing an unpaid internship program.
In addition to the DOL’s primary beneficiary test, some states, including New York, have other internship requirements that must be met to remove an intern from state wage and hour protections. Be sure to evaluate the requirements under applicable state and local laws before implementing an unpaid internship program.
Related article: 6 Simple Tips for Hiring Interns Legally
If unpaid interns satisfy the criteria of the Primary Beneficiary Test, then they are not considered employees under the FLSA, and therefore are not subject to hours restrictions. Again, there may be different requirements under state law, so be sure to look out for those.
If your interns are properly considered employees under the Primary Beneficiary Test, then they are subject to the FLSA’s overtime provisions and should be paid an overtime premium for hours worked over 40 in a week, in addition to any other requirements under state law..
Paid internships are generally more enticing to candidates than unpaid internships for a pretty obvious reason. If you are paying interns, many of the same analyses required when evaluating unpaid interns still apply.
To get the full scoop on the steps that you as an employer should take when hiring paid interns, read our blog post “So You Want to Pay Your Interns: A Guide to Paid Internships”.
If you’re planning on implementing an internship program at your company, you should consult with legal counsel to ensure compliance with all applicable laws and regulations.
When in doubt about internship regulations, it’s probably best to classify interns as employees and pay them as required under applicable federal, state, and local law.
These days, it pays to be cautious. It’s always good practice to consult a lawyer.
Looking for guidance with employment requirements? Check out how a Professional Employer Organization (PEO) like Justworks can help you stay compliant.
If you're a Justworks customer, we can provide guidance and best practices with respect to internships. Reach out to our 24/7 support team anytime with your questions.
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