Info You Can Use: Intern or Employee?

A few weeks ago I did an entry on the social impacts and elements of internships in the arts and very briefly referred to the question of whether unpaid internships were legal.

It only occurred to me later that the whole legality question wasn’t really dealt with very well. I read a lot about it, but didn’t really pass the information along or give readers the sense of urgency to follow through.

Well, hat tip to the ever resource full Non-Profit Law Blog which linked to an entry on Blue Avocado which really tackles the question in much greater detail than the NY Times article I had linked to in my previous entry.

The federal criteria to which you must adhere according to Ellen Aldridge at Blue Avocado are:

1. The training, even though it includes actual operation of the facilities of the employer, is similar to what would be given in a vocational school or academic educational instruction.

2. The training is for the benefit of the trainees.

3. The trainees do not displace regular employees, but work under their close observation.

4. The employer that provides the training derives no immediate advantage from the activities of the trainees, and on occasion the employer’s operations may actually be impeded.

5. The trainees are not necessarily entitled to a job at the conclusion of the training period; and

6. The employer and the trainees understand that the trainees are not entitled to wages for the time spent in training.

You must meet all six or else pay minimum wage. Number 4 is probably the toughest to adhere to. The fact that non-profits can have volunteers adds another dimension to the whole question. You should really read the entry because I can’t get into all the nuances like laws dealing with stipends and the nature of functions being performed without reprinting the entire entry. There is, in fact, a significant difference between an intern and a volunteer, part of which determines the type of work each can perform.

At the end of the entry, Ellen Aldridge recommends two NY Times articles on the topic. The first is the one to which I linked in my previous entry. The second is the guidance the California Labor Department provided on the subject of unpaid internships.

The guidance really just supports the expectations an intern would have of their experience– something relevant to their career goals and not predominantly copying and filing.

In that situation, the agency suggested that payment was not required if an intern “performs culinary tasks directly pertinent to his or her education only, is closely supervised,” and “does not displace regular workers.” But, the agency said, if a restaurant required an intern to bus tables or wash dishes, that would probably be considered an employer-employee relationship and the intern would most likely have to be paid.

Mr. Balter cited another guidance letter that said film studios should pay college students who do routine work like delivering messages, filing tapes and clipping newspaper articles, partly because the work was so similar to that of regular employees and could displace such employees.

In the new guidance, the agency noted that it had previously concluded that interns should be paid if they did any work normally done by a regular worker.

But showing more leeway, Mr. Balter wrote that interns could do occasional work done by regular employees, as long as it “does not unreasonably replace or impede the education objective for the intern and effectively displace regular workers.”

This is only the interpretation in the state of California, and a recently altered one at that. Your state may differ so it will be prudent to see where things stand locally. It is promising that they take their lead from the 10th Circuit Court of Appeals which is considered more moderate than the 9th Circuit in whose jurisdiction California falls.

About Joe Patti

I have been writing Butts in the Seats (BitS) on topics of arts and cultural administration since 2004 (yikes!). Given the ever evolving concerns facing the sector, I have yet to exhaust the available subject matter. In addition to BitS, I am a founding contributor to the ArtsHacker (artshacker.com) website where I focus on topics related to boards, law, governance, policy and practice.

I am also an evangelist for the effort to Build Public Will For Arts and Culture being helmed by Arts Midwest and the Metropolitan Group. (http://www.creatingconnection.org/about/)

My most recent role was as Executive Director of the Grand Opera House in Macon, GA.

Among the things I am most proud are having produced an opera in the Hawaiian language and a dance drama about Hawaii's snow goddess Poli'ahu while working as a Theater Manager in Hawaii. Though there are many more highlights than there is space here to list.

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2 thoughts on “Info You Can Use: Intern or Employee?”

  1. I’m writing from the UK – where unpaid internships have become a HUGE story in the last year or so!

    Here, there is growing concern that many employers are taking advantage of college graduates’ desperation to get experience – and ’employing’ them for long periods completely unpaid. Media and politics are particularly well-known for doing this.

    This has led to a situation where college graduates from poorer backgrounds simply cannot get into industries like journalism, advertising and politics because they cannot afford to work for free. Most of these industries are based in London, so if a graduate cannot commute (or their parents can’t afford to support them) then there is simply no way they can have a career in these areas.

    Given our last government’s desire for 50% of young people go to to university, this has become a national tragedy. Kids from poorer backgrounds have struggled through our high school / college system, graduated with an excellent degree… Only to fall at the final hurdle because they cannot afford to work unpaid, indefinitely (and / or they do not live in London).

    The employers claim that this is a grey area legally – but really it isn’t. Here, the law distinguishes between a ‘volunteer’ (who does not need to be paid the minimum wage) and a ‘worker’ (who does).

    Interestingly, if you fulfill the criteria for being a ‘worker’, you cannot claim to be a ‘volunteer’ just because you want the experience more than you want the pay you are due. If you do this, you yourself will be undermining the minimum wage laws.

    We are watching with interest how the situation unfolds in the States. I and some other interested organisations have been considering drawing up our own list of criteria (like your 6 above) – but it seems that this does not work so well either?!

    Tanya de Grunwald
    GraduateFog.co.uk

    Reply

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