Interns: To Pay or Not to Pay? (That Is the Question)
Interns: To Pay or Not to Pay? (That Is the Question)

Interns: To Pay or Not to Pay? (That Is the Question)

_This article was adapted from content by the HR Pros of the HR Support Center

A common question the HR Support Center receives is whether it is acceptable to engage unpaid interns. Assuming the organization in question is a for-profit company, this is an area in which to exercise extreme caution. While most interns must be compensated at least minimum wage plus any applicable overtime in accordance with the Fair Labor Standards Act (FLSA), the US Department of Labor (DOL) has laid out specific circumstances under which an organization may bring on an unpaid intern.

At a for-profit company, the more an internship is used to benefit the employer, and the more an intern performs productive work, the more likely it is that the intern is an employee and therefore entitled to be paid as such. When a for-profit employer structures an unpaid internship program around a classroom or academic experience as opposed to the employer’s actual operations, however, it is less likely the internship will be viewed as employment.

How Do I Know?

The DOL uses the six factors below to evaluate whether a worker is a trainee (intern) or an employee for purposes of the FLSA. Despite the controversial ruling on the “Black Swan” case in the Second Circuit Court of Appeals, it’s safest to continue using the DOL definition. These six criteria are applied when making this determination:

  1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training that would be given in an educational environment;
  2. The internship experience is for the benefit of the intern;
  3. The intern does not displace regular employees, but works under close supervision of existing staff;
  4. The intern is not necessarily entitled to a job at the conclusion of the internship;
  5. 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; and
  6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If all of these six conditions are met, a company may be able to classify the worker as an unpaid intern. Keep in mind, however, that this is a very high bar to meet. More often than not, the work done by an intern benefits the employer. Consequently, it’s often safest to simply pay minimum wage and overtime (if applicable) to interns.

What If I Decide Not To?

If you decide not to pay interns, we recommend doing the following to help ensure that the internship benefits the intern and not your organization:

* Teach skills that can be used in multiple settings, not just your work environment.

* Design interns’ tasks and activities to give them substantial, real-world experience.

* Allow them to have time where they may job-shadow and aren’t expected to do any work.

* Provide the intern access to relevant speakers, presentations, and on-the-job trainings.

* Require that student interns receive college credit for their participation.

* Limit their administrative tasks and don’t allow them to assist customers.

* Do not allow an intern to supervise other interns or employees.

* Do not use the internship as an “introductory period” as this will make the internship appear to be employment.

* Create a written agreement with a finite duration specifying that the internship is primarily for learning.

What If They Shouldn’t Have Been Unpaid?

If a court or government agency decides that the work of unpaid interns qualifies them as employees, the company could face penalties that include owing back pay, taxes not withheld, Social Security, unemployment benefits, interest, attorneys’ fees, and liquidated damages. For example, NBC recently settled an unpaid interns’ class action lawsuit for a reported $6.4 million and Condé Nast shut down its internship program and paid $5.8 million to about 7500 former interns at publications like Vogue, Vanity Fair, and The New Yorker. Such cases and the developing case law are leading many employers to abandon unpaid programs and pay minimum wage to interns.

Are There Exceptions?

In the non-profit and government sectors, the incentives to pay interns are not so strong. The Wage and Hour Division of the Department of Labor recognizes an exception to the employment relationship for individuals who volunteer their time freely and without anticipation of compensation for religious, charitable, civic, or humanitarian purposes to non-profit organizations.

Interns at a non-profit should have clear volunteer agreements. Some non-profits wish to pay a stipend to such interns, but as a stipend is compensation, organizations that use them need to make sure their interns do not qualify for minimum wage. It is safer to treat an intern as an unpaid volunteer than to pay a stipend which doesn’t meet minimum wage requirements. In the event any payment is made by a non-profit to an intern, the safest course of action is to pay minimum wage and overtime, if applicable.

What Else Is There to Consider?

Another consideration to make regarding unpaid internships is that, aside from legal considerations, these internships are usually only available to those students who can afford to take unpaid work. Not paying interns furthers a system of privilege. Providing payment, on the other hand, allows access and opportunity to a wider variety of individuals.

Lastly, one other important item regarding the intern relationship is to consider the scenario of an intern being injured in your workplace. Some courts have ruled that a paid or unpaid student intern providing services to an organization is generally considered to be an employee of the organization and should be covered under the organization’s workers’ compensation insurance policy. Therefore, we recommend contacting your workers’ compensation carrier and requesting that the intern be added to the policy. While an intern agreement may contain a release for workplace injuries sustained by the intern, some courts have not recognized such agreements as legally binding. Therefore, we strongly recommend including the intern on the company’s workers’ compensation plan.

_Paycor has a great team of paid interns who work for the summer or university co-op rotations. For information on becoming an intern at Paycor, contact McKenzie Marx and for more advice on structuring your internship program properly, check out our HR Support Center

Related article:
3 Questions Employers Should Be Asking about Internships

More to Discover

Families First Coronavirus Response Act: Tips to Manage Employee Leave Scenarios

Families First Coronavirus Response Act: Tips to Manage Employee Leave Scenarios

Coronavirus Response Act On March 18 the Families First Coronavirus Response Act was enacted to help individuals, families and businesses. The legislation requires employers with under 500 employees to give sick leave and paid family medical leave to eligible employees.Eligible businesses are now able to take advantage of new tax credits to offset the costs associated with paid emergency leave and sick leave benefits implemented under the bill, including credit for health plan expenses affiliated with the new leaves. Below is a list of scenarios your employees may experience during this time. Scenario 1 A full time employee is sick and believes they might have COVID-19. The employee is visiting a doctor to seek a medical diagnosis and...

Late Breaking News: Government Approves Remote I-9 Review Due to COVID-19

Late Breaking News: Government Approves Remote I-9 Review Due to COVID-19

Form I-9 Review: Key Details On Friday March 20, 2020, the Department of Homeland Security (DHS) announced it would relax its standards for I-9 document verification amid the coronavirus outbreak.Employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. This provision only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being made at this time to review and verify documents in person. Remote Inspections Employers taking physical proximity precautions must inspect the physical documents...

Webinar: Coronavirus Response Act: What Business Leaders Need to Know

Webinar: Coronavirus Response Act: What Business Leaders Need to Know

In recent weeks the Coronavirus has grown from a crisis to a pandemic affecting small and medium businesses around the Nation. In response, the House of Representatives passed sweeping legislation to help businesses in the coming weeks and months. This legislation includes: • Families First Coronovirus Leave Act • Free COVID-19 Testing • Emergency FMLA Expansions • Tax credits for Businesses During this pandemic, it’s important that business leaders keep up with the latest information. Speaker: Katharine Weber Katharine C. Weber is a Principal in the Cincinnati, Ohio, office of Jackson Lewis P.C. She has successfully assisted countless clients in handling their labor and employment issues in both Ohio and Kentucky. Additionally, Ms....

Executive Summary: 2020 March HR & Compliance Web Summit

Executive Summary: 2020 March HR & Compliance Web Summit

“This was the first webinar to ever make me cry (in a good way).”“Great session! Good information, relevant and easy to understand and follow.”“Best HR webinar I’ve ever heard.”This is just a sample of feedback from attendees at Paycor’s 2020 HR & Compliance Web Summit!During our 2-day event, industry experts like Josh Bersin offered actionable insights and advice on all things HR, from must-haves for small businesses to succeed to salary history bans and medical marijuana in the workplace.Did you miss any of the live sessions? Don’t worry, we’ve got you covered. You can watch them on our On-Demand Webinar page.In the meantime, check out our executive summary for a short overview. How to Help New Parents Re-enter the Workplace and...