Summer Jobs

USDL Fact Sheet on Interns

Summer is coming and employers should be careful when hiring summer interns.  The US Department of Labor has a Fact Sheet that lists the conditions for hiring a summer intern.

Here it is:

Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act

This fact sheet provides general information to help determine whether interns must be paid the minimum wage and overtime under the Fair Labor Standards Act for the services that they provide to “for-profit” private sector
employers.

Background
The Fair Labor Standards Act (FLSA) defines the term “employ” very broadly as including to “suffer or permit to work.” Covered and non-exempt individuals who are “suffered or permitted” to work must be compensated
under the law for the services they perform for an employer. Internships in the “for-profit” private sector will most often be viewed as employment, unless the test described below relating to trainees is met. Interns in the “for-profit” private sector who qualify as employees rather than trainees typically must be paid at least the minimum wage and overtime compensation for hours worked over forty in a workweek.

The Test For Unpaid Interns
There are some circumstances under which individuals who participate in “for-profit” private sector internships or training programs may do so without compensation. The Supreme Court has held that the term “suffer or permit to work” cannot be interpreted so as to make a person whose work serves only his or her own interest an employee of another who provides aid or instruction. This may apply to interns who receive training for their own educational benefit if the training meets certain criteria.

The determination of whether an internship or
training program meets this exclusion depends upon all of the facts and circumstances of each such program.

The following six criteria must be applied when making this determination:

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.

If all of the factors listed above are met, an employment relationship does not exist under the FLSA, and the Act’s minimum wage and overtime provisions do not apply to the intern. This exclusion from the definition of
employment is necessarily quite narrow because the FLSA’s definition of “employ” is very broad. Some of the most commonly discussed factors for “for-profit” private ector internship programs are considered below.

FS 71– Similar To An Education Environment And The Primary Beneficiary Of The Activity

In general, the more an internship program is structured around a classroom or academic experience as opposed to the employer’s actual operations, the more likely the internship will be viewed as an extension of the individual’s educational experience (this often occurs where a college or university exercises oversight over the internship program and provides educational credit).

The more the internship provides the individual with skills that can be used in multiple employment settings, as opposed to skills particular to one employer’s operation,
the more likely the intern would be viewed as receiving training.

Under these circumstances the intern does not perform the routine work of the business on a regular and recurring basis, and the business is not dependent
upon the work of the intern.

On the other hand, if the interns are engaged in the operations of the employer or are performing productive work (for example, filing, performing other clerical work, or assisting customers), then the fact that they may be receiving some benefits in the form of a new skill or improved work habits will not exclude them from the FLSA’s minimum wage and overtime requirements because the employer benefits from the interns’ work.

Displacement And Supervision Issues — If an employer uses interns as substitutes for regular workers or to augment its existing workforce during specific time periods, these interns should be paid at least the minimum wage and overtime compensation for hours worked over forty in a workweek. If the employer would have hired additional employees or required existing staff to work additional hours had the interns not performed the work, then the interns will be viewed as employees and entitled compensation under the FLSA.

Conversely, if the employer is providing job shadowing opportunities that allow an intern to learn certain functions under the close and constant supervision of regular employees, but the intern performs no or minimal work, the activity is more likely to be viewed as a bona fide education experience. On the other hand, if the intern receives the same level of supervision as the employer’s regular workforce, this would suggest an employment relationship, rather than training.

Job Entitlement — The internship should be of a fixed duration, established prior to the outset of the internship. Further, unpaid
internships generally should not be used by the employer as a trial period for individuals seeking employment at the conclusion of the internship period. If an intern is placed with the employer for a trial period with the
expectation that he or she will then be hired on a permanent basis, that individual enerally would be considered an employee under the FLSA.

Where to Obtain Additional Information
This publication is for general information and is not to be considered in the same light as official statements of position contained in the regulations.

For additional information, visit Division

http://www.wagehour.dol.gov
U.S. Department of Labor
Frances Perkins Building
200 Constitution Avenue, NW
Washington, DC 20210
1-866-4-USWAGE
TTY: 1-866-487-9243

Remember — The FLSA makes a special exception under certain circumstances for individuals who volunteer to perform services for a state or local government agency and for individuals who volunteer for humanitarian purposes for private non-profit food banks. WHD also recognizes an exception for individuals who volunteer their time, freely and without anticipation of compensation for religious, charitable, civic, or humanitarian purposes to non-profit organizations. Unpaid internships in the public sector and for non-profit charitable organizations, where the intern volunteers without expectation of compensation, are generally permissible. WHD is reviewing the need for additional guidance on internships in the public and non-profit sectors.

EMPLOYER ALERT — SUMMER JOBS FOR TEENS

Employment of teens under age 18 can provide a valuable summer work experience for students and an enthusiastic addition to your workforce. Be wary, though, of running afoul of federal and state laws that regulate the ages, hours and type of work performed by minors. More stringent rules regarding hours worked apply during the school year.

Some facts you should know about summer employment of teens:

  • If you employ any minors (under age 18), you must conspicuously display a poster that notifies them of the Child Labor Laws. Posters are available from the Florida Department of Business and Professional Regulation, and may be downloaded at: http://www.myflorida.com/dbpr/reg/documents/child_labor_laws poster_legal.pdf

  • All employees under age 18 must be given a 30-minute break after every 4 hours of work.

  • Children under 14 years old cannot be employed, except in the performing arts, newspaper delivery, baby-sitting, as legislative pages, or in a non-hazardous family business.

  • Teens age 14 and 15 cannot work more than 40 hours per week, and cannot work after 9:00 p.m.

  • Restrictions on the type of work done by 14 and 15-year-olds include the following. They may not: operate any power-driven machinery (including power mowers and cutters) other than office machines; use meat grinders, vegetable slicers, food choppers or bakery mixers; do cooking and baking (some exceptions); load or unload trucks; operate motor vehicles; conduct door-to-door sales; do spray painting; or work in construction.

  • Restriction on the type of work done by 16 and 17-year-olds include the following: They may not: operate motor vehicles; use forklifts or similar equipment; work on scaffolding, roofs or ladders over 6 feet; operate circular saws or band saws; use power-driven meat and vegetable slicers or a variety of other power-driven machinery; or work with electrical apparatus or wiring.

Penalties for violations of the Florida child labor laws include fines of $2,500 per offense, and criminal prosecution. Federal fines can be assessed at $11,000 per minor per violation. In addition, under Florida’s workers compensation statute, an employer may be charged double the compensation otherwise payable if an injured teen was employed in violation of any of these laws.

The best practice is to know the restrictions that apply, and make sure appropriate safety procedures are followed.

Additional information about summer safety for teen employees is available from the Department of Labor at: http://www.osha.gov/SLTC/teenworkers/employers.html