So the question is when must a student intern be paid and treated as an employee rather than merely an intern? Well, the Department of Labor has recently released some guidelines that give some information as to when a student intern needs to be paid an hourly wage and/or overtime pay.
The Department of Labor has opined that the intern is not entitled to be paid an hourly wage where the intern is working for his or her own educational benefit.
In order to qualify for this limited exception, the internship must meet a six-factor test:
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.
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.
The internship experience is for the benefit of the intern.
In essence, 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.
he intern does not displace regular employees, but works under close supervision of existing staff.
If the employer would have hired additional employees or required current employees to work additional hours but for the presence of interns, the internship better resembles an employment relationship.
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.
If the intern receives the same level of supervision as the employer’s regular workforce, this would suggest an employment relationship, rather than training.
The intern is not necessarily entitled to a job at the conclusion of the internship
The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
The fact sheet notes that the internship should be for a fixed duration, and not be used as a trial period in which the employer evaluates the intern’s work performance for future work.
If all of these criteria are met, an employment relationship is not deemed to exist, and FLSA requirements do not apply. However, the exemption is supposed to be interpreted narrowly so if there is any doubt, it would be deemed to be an employment relationship rather than an internship. However, in each case, you should confer with an employment attorney to determine whether you would be deemed an employee or not.