This article was originally published in the
Employee Relations Law Journal and is reprinted with
permission of Aspen Publishers.
Employers cannot avoid the requirements of federal law by simply
labeling employees as "interns" or "trainees."
As a general rule, those engaged in legitimate internships or
training programs are not covered by federal employment law. But if
the would-be intern or trainee is actually an employee by another
name, an employment relationship exists, and the intern or trainee
is entitled to all the benefits and protections of federal law.
Including the rights to minimum wage, overtime, and a
discrimination free workplace.
The issue, then, is whether an employment relationship in fact
exists; whether, despite the title, the would-be intern or trainee
is actually an employee. Unfortunately, none of the primary federal
employment laws, specifically the Fair Labor Standards Act and the
anti-discrimination statutes, provide any meaningful guidance on
the distinction between employees and interns or trainees. Thus,
the question has been left to the Department of Labor and the
federal courts. And as is normally the case in such situations, the
DOL and the courts have developed a highly fact specific analysis,
and even then, whether an employment relationship exists is not
always clear. Instead, whether an intern or trainee is entitled to
such things minimum wage and overtime compensation will often
depend upon whether the individual is receiving training without
displacing other employees or providing any real benefit to the
employer.
Internships and the Fair Labor Standards Act -- Six Factors for Avoiding Liability
The primary issue employers face in this area, is whether an
intern or trainee is entitled to minimum wage or even overtime
compensation. The answer, of course, depends upon whether the
individual is covered by the FLSA. The FLSA requires, among other
things, that employers pay all employees at least the minimum wage.
The difficulty is determining whether an intern or trainee is
actually an employee.
The FLSA's definitions are of little help. The Act simply
defines an employee as "any individual employed by an
employer." An employer, in turn, is "any person acting
directly or indirectly in the interest of an employer in relation
to an employee." And to "employ," means only to
"suffer or permit to work." That is, an employer is
anyone who employs an employee, and an employee is anyone employed
by an employer. Under a strict reading of these circular
definitions, anyone who performs any work whatsoever, is likely an
employee, and consequently entitled to minimum wage and overtime
compensation.
The Supreme Court, however, has long recognized that Congress did
not intend he FLSA to require that all individuals who work for an
employer be paid minimum wage. In Walling v. Portland Terminal
Co., the Court found that, under certain circumstances, such
as where individuals choose to work for their own advantage, an
employer may provide training to unpaid volunteers, without
violating the FLSA.
Briefly, the issue in Walling was whether the employer,
Portland Terminal Co., was required to pay its trainees minimum
wage. At the time, Portland Terminal's policy required that any
individual who sought employment as a brakeman, was first required
to attend and complete a practical training course. The course
typically lasted anywhere from seven to eight days, and all
prospective employees were required to complete the course.
Portland Terminal would not consider any applicant who either
refused to take or failed to complete the training course.
Once prospective brakemen completed the initial training course,
they were then assigned to work on a yard crew. According to
Portland Terminal, the purpose of this second assignment was so
that the prospective employees could learn the necessary routines
and activities through observation. Only after completing the
course were the trainees finally put to work, and only then under
very close scrutiny. The prospective employees were not compensated
during this training period.
After an examination of the scope and purpose of the FLSA, the
Supreme Court ultimately concluded that the trainees were not
employees, at least for purposes of the FLSA, during the training
period. The Court noted that the trainees did not displace any
regular employees, nor did Portland Terminal receive any immediate
advantage from the trainees during the training period -- indeed,
the evidence indicated that the trainees actually hindered the
company's productivity. Just as importantly, the trainees
entered the arrangement without any expectation of compensation;
they knew they would not paid.
Accordingly, because the Trainees were not employees, they were not
entitled to the protections of the FLSA, and Portland Terminal was
within its rights to refuse to provide any compensation at all. The
Court reasoned that although the FLSA is an exceedingly broad
statute, Congress could not have intended "to stamp all
persons as employees who, without any express or implied
compensation agreement, might work for their own advantage on the
premises of another." Otherwise, as the Court analogized,
"all students would be employees of the school or college they
attended, and as such entitled to receive minimum
wages."
Instead, the purpose of the FLSA "was to insure that every
person whose employment contemplated compensation should not be
compelled to sell his services for less than the prescribed minimum
wage." According to the Court, the Act was not designed to
prevent employers from providing free instruction, or to penalize
them for doing so. Thus, where an individual "who, without
promise or expectation of compensation, but solely for his personal
purpose or pleasure," works on the premises of another, the
FLSA does not require that the individual receive minimum
compensation.
Although the Supreme Court decided Walling in 1947, it has
remained the seminal case in this area. Following the
Walling decision, the Wage and Hour Division of the
Department of Labor devised a six part to test to guide its
determination as to whether an employment relationship exists for
purposes of the FLSA. Specifically, the DOL considers
whether:
- the training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in a vocational school;
- the training is for the benefit of the trainees;
- the trainees do not displace regular employees, but work under close observation;
- the employer that provides the training derives no immediate advantage from the activities of the trainees and on occasion his operations may actually be impeded;
- the trainees are not necessarily entitled to a job at the completion of the training period; and
- the employer and the trainees understand that the trainees are not entitled to wages for the time spent in training.
Unless all six factors are met, the DOL will find that an
employment relationship exists. The agency has applied these six
factors in several opinion letters. Most recently, on May 17, 2004,
the DOL found that college students participating in a summer
internship program may be covered by the FLSA. According to the
information provided by the potential employer, college students
would be invited to participate in an internship, with the purpose
learning "marketing, promotion, and statistical analysis in a
real world setting." The students could participate only if
they simultaneously received college credit, and a faculty
supervisor was responsible for consulting with the company
regarding the performance of the student interns. The company,
however, assumed the responsibility for direct supervision of the
intens.
The would-be employer further explained that the internship was
structured like a college marketing course, and the student interns
would work flexible schedules of between seven and ten hours per
week. Their duties would include wearing clothing embossed with the
company's logo, and distributing stickers and flyers on campus.
The interns would also be responsible for evaluating student
responses to the promotional items, collecting data on the
composition of the campus population and surrounding city,
utilizing on-line chat rooms to track the effectiveness of certain
web sites, obtaining information on the most popular campus
locations, surveying at least 50 people on campus, and ultimately
compiling data to predict trends both locally and nationally.
Based on these facts, the DOL concluded that it could not
definitively state that an employment relationship did not exist.
That is, even under these facts, it was possible that the interns
were employees under the six part test, and thus entitled to
compensation. The DOL found that the interns clearly satisfied the
first criteria, as the training program was similar to what the
interns would learn in school. Likewise, the second, fifth and
sixth factors were satisfied, since the program clearly inured to
the benefit of the interns, the interns were not guaranteed jobs at
the conclusion of the internship, and the intens neither received
nor expected compensation.
But based upon the information provided by the company, the
Department of Labor could not determine whether the employer
satisfied the third and fourth factors. Given the intern's
duties it was at least possible that they displaced other employees
(although, the Department of Labor noted that this appeared
unlikely), and that the company derived some immediate benefit from
the intern's activities.
The federal courts, however, are less included to strictly follow
the six factor approach. For example, the Fourth Circuit has
repeatedly held "that the general test used to determine if an
employee is entitled to the protections of the Act is whether the
employee or the employer is the primary beneficiary of the
trainees' labor." Wirtz v. Wardlaw, 339 F. 2d,
785 (4th Cir. 1964), Isaacson v. Penn Community Services,
Inc., 450 F.2d 1306 (4th Cir.1971), and McLaughlin v.
Ensley 877 F.2d 1207 (4th Cir.1989). Likewise, the Tenth
Circuit adopted a "totality of the circumstances" test,
under which the Department of Labor's six factors provide
helpful guidance, but are not dispositive. Reich v. Parker Fire
Protection Dist., 992 F. 2d 1023 (10th Cir. 1993). And the
Fifth Circuit, in Donovan v. American Airlines, Inc., 686
F. 2d 267 (5th Cir. 1982) cited the six factor test with approval,
but did not expressly adopt the test, nor require that all six
factors be met in order to avoid an employment relationship under
the FLSA.
Internships and the Ant-Discrimination Laws
A lesser, but nevertheless important consideration, is whether
interns and trainees are entitled to the protections of the
anti-discrimination statutes, including the Civil Rights Act, the
Americans with Disabilities Act, and the Age Discrimination in
Employment Act. Like the FLSA, these anti-discrimination statutes
generally apply to the employment relationship. And like the FLSA,
these statutes provide broad, if somewhat unhelpful, definitions of
employment -- each of one defines an "employee" as simply
"an individual employed by an employer."
The federal courts have traditionally applied common law agency
principles to determine whether an employment relationship exists
for purposes of federal anti-discrimination laws. Since the Supreme
Court's decision in Nationwide Mutual Insurance Co. v.
Darden, 503 U.S. 318 (1992), courts have generally applied the
following thirteen factors to determine whether an employment
relationship exists.
- the hiring party's right to control the manner and means by which the product is accomplished;
- the skill required by the hired party;
- the source of instrumentalities and tools;
- the location of the work;
- the duration of the relationship between the parties;
- the hiring party's right to assign additional projects;
- the hired party's discretion over when and how long to work;
- the method of payment;
- the hired party's role in hiring the paying assistants;
- whether the work is part of the hiring party's regular business;
- whether the hiring party is in business;
- the hired party's employee benefits; and
- tax treatment of the hired party's compensation.
As with the federal court's treatment of the six factor
test, no single element is dispositive. Instead, the courts once
again look to the totality of the circumstances. Nonetheless, even
a cursory glance shows that this test assumes that the putative
employee was "hired" in the first place.
The second circuit addressed the application of this analysis to
student interns O'Connor v. Davis, 126 F.3d 112 (2nd
Cir. 1997). There, the issue was whether an unpaid student intern
could bring suit under Title VII for sexual harassment. The
employer argued that the intern was not an employee, and thus not
covered by the anti-discrimination laws. The Second Circuit agreed,
noting that the considerations articulated by the Supreme Court in
Darden, assume an economic relationship; that the would-be
employee was "hired" in the first place. And the Court
reasoned that, absent some economic value in exchange for services,
a "hire" had not occurred. That is, compensation is an
essential element of employment. Importantly, other courts have
found that benefits such as insurance may constitute compensation,
and thus require an application of common law test. Haavistola
v. Community Fire Co., 6 F. 3d 211, 221 (4th Cir. 1993).
Thus, if an intern or trainee is not an employee under the FLSA,
then he or she is not entitled to minimum wage, or indeed any
compensation. And if the intern or trainees is not compensated,
then he or she is likely not an employee for purposes of the
federal anti-discrimination laws. If, however, an intern or trainee
is compensated, then the courts will apply the thirteen factors
set-forth by the Supreme Court in Darden to determine
whether an employment relationship exists. It is entirely possible
that an individual may be an employee for purposes of the FLSA, but
not for purposes of the anti-discrimination laws.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.