Meeting Provisions of Fair Labor Standard Act with Unpaid Internships

In the summer of 2010, Texas AgriLife Extension will host a number college interns. These unpaid interns are a tremendous value to Texas AgriLife Extension Service but there are several factors that must be met in order for these students to be classified as interns rather than employees. The U.S. Department of Labor’s Wage and Hour Division (WHD) has developed six factors below to evaluate whether a worker is a trainee (intern) or an employee for purposes of the Fair Labor Standards Act;

1. The training, even though it includes actual operation of the facilities of the employer, is similar to what would be given in a vocational school or academic educational instruction;
2. The training is for the benefit of the trainees;
3. The trainees do not displace regular employees, but work under their close observation;
4. The employer that provides the training derives no immediate advantage from the activities of the trainees, and on occasion the employer’s operations may actually be impeded;
5. The trainees are not necessarily entitled to a job at the conclusion of the training period; and
6. The employer and the trainees understand that the trainees are not entitled to wages for the time spent in training.
   

If all of the factors listed above are met, then the worker is a “trainee”, an employment relationship does not exist under the FLSA, and the FLSA’s minimum wage and overtime provisions do not apply to the worker. Because the FLSA’s definition of “employee” is broad, the excluded category of “trainee” is necessarily quite narrow. Moreover, the fact that an employer labels a worker as a trainee and the worker’s activities as training and/or a state unemployment compensation program develops what it calls a training program and describes the unemployed workers who participate as trainees does not make the worker a trainee for purposes of the FLSA unless the six factors are met.

The following are some websites where needed forms related to internships can be retrieved;

• Fact Sheet #40: Federal Youth Employment Laws in Farm Jobs- http://www.dol.gov/whd/regs/compliance/whdfs40.pdf
• Intern/Volunteer Waiver- http://www.tamus.edu/offices/hr/forms/205.pdf
• Waiver of Liability and Hold Harmless Agreement- http://agservices.tamu.edu/forms/liawaiv.pdf

District Extension Administrators and County Extension Directors should ensure that host/mentor agents are trained regarding these provisions and that all interns complete appropriate forms before any internship begins.

Content for this article was provided by Jennifer M Humphries, Texas A&M AgriLife Human Resources.