The 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 laws. The USDOL definition can hardly be discounted, but can hardly be considered controlling. On the other hand, the New York State Department of Labor uses a very strict 11-point test, and stresses that an internship is not legal unless it meets all 11 criteria. Moreover, the NYDOL test goes into quite a bit more detail than the federal test, giving additional guidance to both employers and judges.
The training, even though it includes actual operation of the employer’s facilities, is similar to training provided in an educational program.
The NYDOL gives quite a bit more detail than its USDOL counterpart, making it clear that this exception applies to vocational students as opposed to unpaid or underpaid interns. But course credit is no substitute for cash compensation and offers you no protection under federal and state workplace laws. If the employer says “I’m not going to pay you but I can give you course credit,” politely advise him or her where the employer may place that advice.
The training is for the benefit of the intern.
The NYDOL fact sheet goes on to say that any benefit to the employer must be “merely incidental.” If your presence at the office was only tangentially related to the organization’s best interests on Monday, would they allow you to come back on Tuesday?
The intern does not displace regular employees, and works under close supervision.
In truth, many unpaid and underpaid interns are entry-level employees who do not receive paychecks. No amount of lawyer wrangling can change that simple reality. If the interns did not do the entry-level work, the employer would have to hire replacements. That is the quintessential difference between interns and workers.
The activities of trainees or students do not provide an immediate advantage to the employer. On occasion, operations may actually be impeded.
Almost no unpaid or underpaid intern meets this standard. End of story.
The trainees or students are not necessarily entitled to a job at the conclusion of the training period and are free to take jobs elsewhere in the same field.
Did you notice how the “intern” label has been completely dropped? This element is a bit of a misstatement. To better describe an unpaid or underpaid intern’s position, it should read thusly: “The trainees or students are not necessarily entitled to a job at the conclusion of the training period and are free to take jobs elsewhere in the same field if they can manage to find one, and good luck with that.”
The trainees or students are notified, in writing, that they will not receive any wages and are not considered employees for minimum wage purposes.
How many times has an employer given you any sort of written contract, much less a written contract that contains the correct legal disclaimer?
Any clinical training is performed under the supervision and direction of people who are knowledgeable and experienced in the activity.
Of course, this element assumes that the unpaid or underpaid intern receives any clinical training at all, a dubious assumption at best.
The trainees or students do not receive employee benefits.
The training is general, and qualifies trainees or students to work in any similar business. It is not designed specifically for a job with the employer that offers the program.
This element is very similar to the “clinical training” component. Actually, most interns may meet this portion of the definition as answering phones, sending faxes and pressing buttons on the copy machine are near-universal business office skills.
The screening process for the internship program is not the same as for employment, and does not appear to be for that purpose. The screening only uses criteria relevant for admission to an independent educational program.
What “screening process” applies to unpaid interns? If you do not try to burn down the building, they will keep you on premises because you are doing work for free.
Advertisements, postings, or solicitations for the program clearly discuss education or training, rather than employment, although employers may indicate that qualified graduates may be considered for employment.
The stated purpose is to “avoid a trainee’s misunderstanding of the nature of the program.” The real reason is to help the employer avoid lawsuits.
Do not hesitate to contact us if you have any questions about an unpaid or underpaid internship in The Empire State or elsewhere. We would truly love to hear from you.