By Attorney Tara Swartz –

The question of whether an internship is appropriately unpaid as a learning opportunity or should be paid in accordance with the federal and state wage and hour laws has become a hot topic in recent years. At the end of the day the question is whether the interns are performing duties designed as a learning opportunity or more aptly classified as a job.

How federal labor laws classify internships

The federal Fair Labor Standards Act (FLSA) broadly defines what it means to be an employee versus an intern. The FLSA discusses the issue of unpaid internships at length, and has created a test by which both businesses and judges can determine whether a particular program can properly be classified as an internship (without pay), or if instead the intern should be treated as an employee, and receive minimum wage and overtime compensation as applicable.

The FLSA test

The FLSA internship test is composed of six distinct factors:

  • The type of instruction/training the supposed intern is receiving; if it is similar in nature to that which would be seen in a classroom setting, the position can properly be classified as an internship, even if the position does involve some level of exposure to the company’s day-to-day operations and the performance of tasks.
  • The position’s primary benefit is for the intern.
  • The intern is not displacing a regular, full-time employee of the business, instead focusing on his or her educational experience under close supervision of staff.
  • Any training that the intern receives, and any tasks performed, are not for the immediate benefit of the company (and the training of the intern might actually impede the company’s operations in some way at times).
  • There has been no promise of a permanent position at the end of the internship.
  • The company and the intern mutually agree that there will be little or no compensation offered in the form of hourly wages or overtime.

It is important to note that the Wage and Hour Division of the United States Department of Labor recognizes that there are many unpaid internships across the country that would not hold up under this test, and that is purposeful. Since federal labor laws follow a very broad definition of employment that favors the right to employee compensation, companies proffering internships need to structure them for the intern’s ultimate benefit, not to meet business goals or purposes.

Are you an unpaid intern looking to be fairly compensated for your hard work? Do you need guidance about another employment-related legal issue? If so, seek the advice of an experienced employment law attorney in your area to learn more about your legal rights and options.