Interns: When, if Ever, Do They Have to be Paid?

Internship/externships are invaluable educational opportunities; the chance for students in high school, college or graduate school to get real, hands-on experience. But for employers there seems to be a hidden benefit: free labor. But is an internship paid? Does someone who interns with a company have to be paid the same way that any worker would?

What is an Intern?

The real question, and one that has led to a lot of confusion, is just what exactly is an intern? Of course, many see an intern as an unpaid person working at a business for the purpose of bettering their education and working under  an educational institution even for educational credit.

But many employers have taken advantage of that, calling job positions “internships,” even though the job in reality has no ties or connection to any educational endeavor. Thus, the business gets free labor.

The Government’s Test

The U.S. Department of Labor used to have a complex test to see if someone is, in fact, a true intern, or whether they are actually just an employee that needs to be paid under the law. That test got easier in 2018, when the law changed, to use what is known as the “primary beneficiary” test.

The question is who is primarily benefiting from the internship?

To answer that question, courts, and the Department of Labor, will ask these questions:

1)      Does the internship provide real, educational hands-on training, the way an educational institution would? If an accounting student is just filing papers and answering phones, he or she is probably just doing a job—not an internship.

2)      Is there coursework that is tied to the internship, or some tie in to academic work with the intern’s educational institution? Does the institution do any monitoring or oversight of the intern’s performance at the job?

3)      Does the employer work with, and accommodate, the interns academic and educational schedule? Employers should allow interns to take time to go to class, or study.

4)      Is the work limited to the time that the student is getting an educational benefit (for example, for the year or semester or quarter that the student is taking corresponding classes)?

5)      When at work, is the intern’s job taking the place of other, paid workers? Or is it “in addition to,” the work being done by other, paid workers?

6)      Both intern and employer must have a mutual understanding that the job is without pay, promise or pay, or promise of any future remuneration.

If in fact the primary benefit is for the employer, and thus, not the student or educational institution, then the intern must be paid like any other worker, getting the required amount of minimum wage and overtime.

Costanzo Law Firm often hires interns and externs from Santa Clara Law School to mentor and provide training to law students.

Are you an intern…. but feel your employer should be paying you? Contact the San Jose employment lawyers at the Costanzo Law Firm today.

Sources:

careersourcecentralflorida.com/job-journal/what-you-need-to-know-about-hiring-interns/

businessnewsdaily.com/15161-are-unpaid-internships-legal.html