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Unpaid Interns and Trainees Under the FLSA

Author: Michael Cardman, XpertHR Legal Editor

Some employers hire interns or trainees to fetch coffee, make copies and perform other menial chores in exchange for a line on a résumé and some "real world" experience.

Such arrangements can result in a lawsuit for back wages and overtime under the Fair Labor Standards Act (FLSA) unless specific criteria are satisfied.

Before establishing an unpaid internship or training program, an employer should acquaint itself with the differing legal standards by which it may be judged.

The US Department of Labor (DOL) uses a six-factor test to determine whether an intern or trainee qualifies as an employee under the FLSA and thus must be paid at least the federal minimum wage and overtime for all hours worked beyond 40 in a workweek.

However, some federal appeals courts apply less-stringent standards. They take a more balanced approach under which an unpaid internship or training program could potentially provide more tangible benefits to an employer yet still pass legal muster.

This Legal Insight addresses the different standards in an effort to guide employers that may wish to establish unpaid internships or training programs.