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Unpaid Intern Department of Labor Six Factor Test Explained

Unpaid Intern Department of Labor Six Factor Test Explained

For Profit/Private Sector, Unpaid Internships - May 24, 2013 - 18 Comments - by

Model T FordGetting Down to Basics: What Is an Unpaid Intern?

Depending on when the question is asked, pretty much all of us may answer “yes” when asked if we are unpaid interns. Believe it or not, about one in ten workers actually is an unpaid intern.

The Department of Labor has given us this definition of an unpaid internship. The definition applies only to private sector, for – profit employers. Apparently, public sector interns either are nonexistent or can be worked to death. Chances are, if you are a public sector employee, at least one of your co – workers is an unpaid intern.

 

The definition begins very ominously. We are told that the term “employ” is very broad, and roughly defined in the Code of Federal Regulations as “suffer or permit to work”. Such a quaint definition may have been applicable a hundred years ago, when there were almost no laws protecting American workers. Henry Ford was one of the pioneers of the 40 hour workweek in 1926, which at the time was viewed as a sign of the coming apocalypse. The fact that the CFR’s definition has probably not been updated since then surely has much to do with the amount of money flowing into campaign coffers from various private sector, for – profit employers.

Fact Sheet #71, the meat of the DOL’s definition is the six – part test for determining the legality of an unpaid internship:

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.

Numbers one and two relate to the idea that the unpaid intern is onsite primarily to learn and secondarily to work. Most employers will doubtless say that the unpaid intern learns by doing, and unless the intern spends an inordinate amount of time making coffee, the employer would probably be right.

Numbers three, five and six pertain more to the agreement between the employer and the unpaid intern. The intern must be “closely supervised” by “existing staff”. The employer would do well to spell out this term in the contract: “your supervisor is x.” The same goes for five and six: make sure the unpaid intern knows she is unpaid and that there is not necessarily a pot of gold at the end of the rainbow in the form of an office with her name on the door.

And last but not least comes item four. To be a bona fide “unpaid intern”, according to the DoL, the intern has to actually get in the way! Of the roughly 1.5 million unpaid interns in the workforce, how many of them would be back the next day if they met this definition?

The exception only applies if all six factors are present. How do these arcane standards apply to the interns in your office?

Unpaid Internship Lawsuits and FLSA Information

If you have been victimized by an unpaid or underpaid internship, remember that the clock may be ticking. If you are owed time and a half for overtime, before the time expires for you to file a claim and receive fair compensation for your work, contact us for a free consultation to discuss your case with an experienced Unpaid Overtime Attorney in New York who specializes in unpaid internship and Fair Labor Standards Act lawsuits.

 

18 comments

  • [...] to The Fair Labor Standards Act, these experiences reflect unpaid internships that were illegal because they violated two of six criteria for legal unpaid [...]

  • [...] spend most of her time sitting in on production meetings or doing the team laundry? One of the six FLSA tests is that “the employer that provides the training derives no immediate advantage from the [...]

  • [...] the Federal Labor Standards Act (FLSA), triggering compensation requirements.  The FLSA sets out six criteria to consider when determining whether a position can be an unpaid one, including: (1) comparing the [...]

  • [...] Labor Standards Act, unpaid internships are illegal unless an exception applies. The crux of the FLSA exception is that the intern must spend most of his or her time learning instead of working. If the [...]

  • [...] battle to prove that their unpaid positions deserved adequate compensation as determined by the Fair Labor Standards Act (FLSA).  Among other things, they had to prove that the internship experience gave their employer [...]

  • [...] determination that the interns were “employees” of Fox Searchlight for purposes of the Fair Labor Standards Act (FLSA), as well as the downright stunning act of granting class certification in the framework of [...]

  • [...] separate question. The same can be said regarding unpaid internships. If the question is their legality, the answer could be “yes” or “no.” If the question is their ethicality, the answer is [...]

  • [...] and illegal.  The Fair Labor Standards Act (FLSA), enforced by the Department of Labor, sets out six criteria that must be met in order for an unpaid internship to pass muster.  One of the criteria most [...]

  • [...] Internships are a good thing, right? The employer receives services from an intern, and the intern gets valuable experience. It’s all win-win, right? (It’s a given that we must set aside for the moment, the serious legal issues involved when hiring an unpaid intern, as the majority of unpaid internships in the for-profit sector do not comply with the guidelines of the Department of Labor (DOL) 6 Factor Test.) [...]

  • [...] we sued Portela Law Firm. Since then we have sued several other entities alleging violation of the Fair Labor Standards Act (FLSA). We are proud to have been one of the few pioneering attorneys in the country to have pursued this [...]

  • [...] the country, pay attention because the Black Swan ruling  has implications for you.  Learn the Department of Labor’s Six Factor Test.  Ask during interviews about the type of work you will be doing, hours you will be expected to [...]

  • [...] Court of Appeals got it right. The bureaucrats applied the Department of Labor’s near-infamous Fact Sheet 71 along with a totality of the circumstances, what-is-really-going-on-here analysis. These [...]

  • [...] United States Department of Labor has a rather loose set of guidelines to determine who is an “intern” and who is an “employee” for purposes of wage and hour [...]

  • [...] now, even though numerous federal laws forbid numerous forms of worker exploitation and the Department of Labor specifically prohibits unpaid internships, the government cannot seem to stop. Just as the government is addicted to debt and “frequently [...]

  • […] aspects: The core of federal labor law regarding unpaid interns is that the internship is for the benefit of the intern and not the employer. In the donut shop’s […]

  • […] does the NCAA’s internship program measure up to the United States Department of Labor’s test and specifically item #4 in that […]

  • […] accumulated during an internship is highly debatable – this arrangement is patently illegal. Federal labor law clearly states that the employer is to receive no benefit from an unpaid intern’s labor and, in […]

  • […] soon come to an end.  The use of unpaid interns, under the guise of reliance on the very narrow Department of Labor Trainee Exemption, is nothing more than cost cutting measures. In recent years it has become apparent that the only […]

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