By Douglas Weiner and Brian Molinari

In the current economic downturn, competition for desirable positions of employment is keen. Ambitious job seekers may approach an employer asking for an unpaid position to gain experience, skills and contacts. While such a relationship may prove mutually advantageous, employers should remember that the DOL recently emphasized the FLSA’s compensation requirements apply to employees who are required or allowed to work. The terms “to suffer or permit to work” have been construed expansively in order to effectuate the broad remedial purposes of the Act.

Volunteering Does Not Mean Waiving

It has been determined that employees subject to the Act may not choose to “decline” the protections of the Act by performing activities characterized as “volunteer” services. Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 302 (1985). In that case, the Supreme Court was concerned that unless employees were barred on a general basis from “volunteering” to perform any services for their employers there would be potential for the coercion of uncompensated services, to the detriment of the purposes of the Act. The Court did not wish to allow the prohibition against employees waiving their protections under the Act to be circumvented by characterizing work as “volunteer” services, citing Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728 (1981) and Brooklyn Savings Bank v. O’Neil, 324 U.S. 697 (1945). Accordingly, covered and non-exempt individuals who are “suffered or permitted” to work must be compensated under the law for the services they perform for an employer. Thus, internships in the “for-profit” private sector will most often be viewed as employment, unless the test described below relating to trainees is met.

Fact Sheet #71: The Test For Unpaid Interns

Individuals who participate in “for-profit” private sector internships or training programs may do so without compensation, according to DOL, only under certain circumstances. Whether an internship or training program meets this exclusion depends upon all of the facts and circumstances of each such program.

The following six criteria must be applied when making this determination:

1.                  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;

2.                  The internship experience is for the benefit of the intern;

3.                  The intern does not displace regular employees, but works under close supervision of existing staff;

4.                  The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;

5.                  The intern is not necessarily entitled to a job at the conclusion of the internship; and

6.                  The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If all of the factors listed above are met, an employment relationship does not exist under the FLSA, and the Act’s minimum wage and overtime provisions do not apply to the intern. 

Accordingly, employers must tread carefully when entertaining what is certain to be many offers from job seekers to work as an unpaid intern. Unless all 6 factors above support an unpaid internship, individuals working for “for-profit” employers typically must be paid at least the minimum wage and overtime compensation for hours worked over forty in a workweek.