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Employment Law Reminder: Department of Labor’s Unpaid Internship Rules

        With the job market still sluggish, it can be tempting for a private employer to “hire,” as unpaid interns, individuals who just want to get the work experience for their resumes.  Although using an unpaid intern to fill in some temporary gaps and giving the individual work experience may seem like a win-win situation, the United States Department of Labor (DOL) does not agree.  According to the DOL, if an unpaid internship with a private employer is not almost exclusively for the benefit of the unpaid intern, he or she may be an employee under the Fair Labor Standards Act (FLSA). 

 
Thus, pursuant to the DOL’s rules, if the unpaid internship does not satisfy the following test, the intern cannot work for free and should be paid at least the FLSA minimum wage and may be eligible for overtime payments:
 
--The internship should be similar to training which would be given in an educational environment, even if it is at the employer’s facility;
 
--The internship experience should be for the benefit of the intern;
 
--The intern should not displace regular employees and should work under close supervision of existing staff;
 
--The employer providing the training should derive no immediate advantage from the activities of the intern;
 
--The intern should not necessarily be entitled to a job at the conclusion of the internship; and
 
--The employer and the intern should understand that the intern is not entitled to wages for the time spent in the internship.
 
The DOL’s Fact Sheet establishing this test under the FLSA can be found at the DOL’s website at http://www.dol.gov/whd/regs/compliance/whdfs71.htm.


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