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When Are In­terns En­ti­tled to Be Paid?

By February 18, 2014 February 19th, 2015 No Comments

While it is not illegal to have unpaid interns, it is still a dangerous practice unless: the employer can prove that they are not taking advantage of the intern and having them do too many administrative tasks; and they are really obtaining “bona fide training” for which they will get credit from school.

The answer to this question depends upon whether the intern is considered a “learner/trainee” under the  federal Fair Labor Standards internship-graphicAct (FLSA), and the Department of Labor (DOL) has developed six criteria for differentiating between an employee entitled to minimum wage and a learner/trainee who may be unpaid:

  1. The training, although it includes actual operation of the facilities of the employer, is similar to that which would be given in a vocational school.
  2. The training is for the benefit of the students.
  3. The students do not displace regular employees, but work under the close observation of a regular employee or supervisor.
  4. The employer provides the training and derives no immediate advantage from the activities of students, and, on occasion, the operations may actually be impeded by the training.
  5. The students are not necessarily entitled to a job at the conclusion of the training period.
  6. The employer and the student understand that the student is not entitled to wages for the time spent in training.

The trickiest of the above is the criteria regarding training — scanning, photocopying and filing are not considered “training”.

In addition, Massachusetts M.G.L. c. 151, s. 2.  law requires all workers to be paid “at least the state minimum wage unless an exception applies”.   There are five exceptions: (1) someone providing professional service; (2) agricultural or farm workers; (3) people being rehabilitated or trained under rehabilitation or training programs in charitable, educational or religious institutions; (4) members of religious orders; and (5) outsids sales workers who don’t make daily reports or visits to the office or plant of their employer.

Most employers don’t fit into one of the exceptions, and we recommend that they at least pay the state minimum wage for their interns.

In my opinion having unpaid interns is not worth the risk – and we recommend all our clients to pay their interns minimum wage..