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Unpaid Interns and Trainees Under the FLSA

Author: Michael Cardman, XpertHR Legal Editor

Some employers take on unpaid 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) and/or state wage and hour laws.

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

Several federal appellate courts and the US Department of Labor (DOL) have adopted a "primary beneficiary test," a balanced approach that weighs several factors to determine whether a trainee or intern received the primary benefit of the work he or she performed - and therefore, whether the trainee or intern is an employee entitled to the minimum wage, overtime and other protections.

However, certain states - including California, Kentucky and North Dakota - may have more rigid tests, under which multiple requirements must be satisfied in tandem.