My tax and advisory practice is located in New York, with many of our clients located in New York City. New York is an exciting place for both students and those beginning their careers. New York is a center for the arts, finance, fashion, technology, and startup companies in all industries.
Many companies offer“unpaid” internships to college students or recent graduates. These interns are excited about the prospect of “real work” in their industry with a small, growing company.
Regardless of whether the intern agrees with the arrangement, the use of unpaid interns can easily violate federal and state labor laws.
Generally, for an individual to be considered an unpaid intern rather than an employee, certain specific criteria need to be met according to the Department of Labor. Specifically, the ”intern” needs to be part of a training program, and not be treated as an employee. The six criteria necessary for an internship training program are:
1. The training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in a vocation school;
2. The training is for the benefit of the trainee;
3. The trainees do not displace regular employees, but work under close observation
4. The employer that provides the training derives no immediate advantage from the activities of the trainees and on occasion the employer’s operations may actually be impeded;
5. The trainees are not necessarily entitled to a job at the completion of the training period; and
6. The employer and the trainee understand that the trainee is not entitled to wages for the time spent in training.
Notably, the law is unsettled as to whether all the criteria must be met or if only most of the criteria need to be met for an individual to be considered an employee under the law.
This article on the NYU website discusses interns and volunteers.
Without careful documentation, an “intern’s” complaint to the US or NY Department of Labor could result in the company being required to retroactively pay the intern for all “volunteer” hours worked.
I am not an attorney. It might be advisable to have your attorney draft a blanket memorandum of understanding for use between the Company and any current or future interns. You might also discuss this issue with your enrolled agent.