Is it legal to work with an intern?
The U.S. Department of Labor Wage and Hour Division (WHD) developed an outline of six factors that employers may use as a guideline when evaluating an intern for their company. The following link provides the complete detail as supplied by the U.S. Department of Labor.
U.S. Department of Labor
Employer & Training Administration Advisory System 1/29/10http://wdr.doleta.gov/directives/attach/TEGL/TEGL12-09acc.pdf
Fair Labor Standards Act:
Employers who participate in subsidized work-based training programs implemented by states for unemployed workers may be subject to the requirements of the Fair Labor Standards Act (FLSA) with respect to the workers who are placed with them. If an employment relationship exists between the participating employer and the worker, and the worker is engaged in work subject to the FLSA and does not satisfy one of the FLSA's exemptions, the employer must pay the worker at least the federal minimum wage for all hours worked and overtime pay at one and one-half times the worker's regular rate for all hours worked over 40 in a workweek. State and local minimum wage and overtime laws may apply as well. If the worker is a trainee as opposed to an employee under the FLSA, then he or she is not covered by the FLSA's minimum wage and overtime provisions.
The definition of "employee" is very broad under the FLSA, but persons who, without any express or implied compensation agreement, work for their own advantage on the premises of another may not be employees. Workers who receive work-based training may fall into this category and may not be employees for purposes of the FLSA.
The specific facts and circumstances of the worker's activities must be analyzed to determine if the worker is a bona fide "trainee" who is not subject to the FLSA or an "employee" who may be subject to the FLSA. The employer is responsible for complying with the FLSA and participation in a subsidized work-based training initiative for unemployed workers as described in this guidance does not relieve the employer of this responsibility.
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 FLSA:
1. The training, even though it includes actual operation of the facilities of the employer, is similar to what would be given in a vocational school or academic educational instruction.
2. The training is for the benefit of the trainees;
3. The trainees do not displace regular employees, but work under their 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 conclusion of the training period.
6. The employer and the trainees understand that the trainees are not entitled to wages for the time spent in training.
If all of the factors listed above are met, then the worker is a "trainee", an employment relationship does not exist under the FLSA, and the FLSA's minimum wage and overtime provisions do not apply to the worker. Because the FLSA's definition of "employee" is broad, the excluded category of "trainee" is necessarily quite narrow. Moreover, the fact that an employer labels a worker as a trainee and the worker's activities as training and/or a state unemployment compensation program develops what it calls a training program and describes the unemployed workers who participate as trainees does not make the worker a trainee for purposes of the FLSA unless the six factors are met.