The U.S. Department of Labor’s Wage and Hour Division (WHD) has developed the six factors below to evaluate whether a worker is a trainee or an employee for purposes of the Fair Labor Standards Act

Unpaid Intern Department of Labor Six Factor Test Explained
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Posted 12:05 AM Jun. 28, 2015

Unpaid Intern Department of Labor Six Factor Test Explained

Getting Down to Basics: What Is an Unpaid Intern?

Depending on when the question is asked, pretty much all of us may answer “yes” when asked if we are unpaid interns. Believe it or not, about one in ten workers actually is an unpaid intern.

The Department of Labor has given us this definition

of an unpaid internship. The definition applies only to private sector, for – profit employers. Apparently, public sector interns either are nonexistent or can be worked to death. Chances are, if you are a public sector employee, at least one of your co – workers is an unpaid intern.

The definition begins very ominously. We are told that the term “employ” is very broad, and roughly defined in the Code of Federal Regulations as “suffer or permit to work”. Such a quaint definition may have been applicable a hundred years ago, when there were almost no laws protecting American workers. Henry Ford was one of the pioneers of the 40 hour workweek in 1926, which at the time was viewed as a sign of the coming apocalypse. The fact that the CFR’s definition has probably not been updated since then surely has much to do with the amount of money flowing into campaign coffers from various private sector, for – profit employers.

Fact Sheet #71, the meat of the DOL’s definition is the six – part test for determining the legality of an unpaid internship:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which 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 employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;

5. The intern is not necessarily entitled to a job at the conclusion of the internship; and

6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

Numbers one and two relate to the idea that the unpaid intern is onsite primarily to learn and secondarily to work. Most employers will doubtless say that the unpaid intern learns by doing, and unless the intern spends an inordinate amount of time making coffee, the employer would probably be right.

Numbers three, five and six pertain more to the agreement between the employer and the unpaid intern. The intern must be “closely supervised” by “existing staff”. The employer would do well to spell out this term in the contract: “your supervisor is x.” The same goes for five and six: make sure the unpaid intern knows she is unpaid and that there is not necessarily a pot of gold at the end of the rainbow in the form of an office with her name on the door.

And last but not least comes item four. To be a bona fide “unpaid intern”, according to the DoL, the intern has to actually get in the way! Of the roughly 1.5 million unpaid interns in the workforce, how many of them would be back the next day if they met this definition?

The exception only applies if all six factors are present. How do these arcane standards apply to the interns in your office?

Unpaid Internship Lawsuits and FLSA Information

If you have been victimized by an unpaid or underpaid internship, remember that the clock may be ticking. If you are owed time and a half for overtime, before the time expires for you to file a claim and receive fair compensation for your work, contact us for a free consultation to discuss your case with an experienced Unpaid Overtime Attorney in New York who specializes in unpaid internship and Fair Labor Standards Act lawsuits.