His principle focus is the defense of class and collective action lawsuits under federal and state wage-and-hour laws. In essence, an internship program will be deemed to exist only if the interns are performing some work as part of an educational, or vocational, program that satisfies ALL six of the above-mentioned criteria. The work must be primarily for the benefit of the trainees, rather than the employer. In an opinion letter dated April 7, 2010, the DLSE explicitly overturned its previous 11-factor test, in favor of the 6-factor test applicable under the federal Fair Labor Standards Act ("FLSA"). In April of 2010, the U.S. Department of Labor (DOL) issued a new Fact Sheet discussing the very limited circumstances under which an individual can work for a for profit employer as an unpaid intern, and Californias DLSE said it would apply the same rule to California employers. What most dont know is that many of these internships are in fact illegal. However, there are some exceptions, including unpaid internships. The extent to which an intern and their employer understands that there is no guarantee of a paid position at the conclusion of an internship. They cannot simply label a particular low-level or menial job an "internship," and thereby get the work done for free, instead of hiring an employee to perform that function. A person, including an intern, who is forced by their employer to perform volunteer tasks is not legally recognized as a volunteer, and has the right to financial compensation. This ensures that the intern is performing duties from which they will learn essential skills related to fields they are pursuing or wish to pursue. Whenever I have a question relating to my employees, I call Coast Employment Law. Scroll through other postings and a similar pattern will emerge: Interns are expected to possess all-star abilities and put forth Herculean effort, yet they are offered little to no pay in return for their work. Requesting Letter. The employer cannot derive any immediate advantage from the work of the trainees (in fact, employers operations should to some extent be impeded by the trainees presence). For many, landing the right internships can help with gaining invaluable experiences to help further your career. Often, workers are eager to accept an unpaid internship in hopes of getting their foot in the door. In 2010, the California Division of Labor Standards Enforcement (DLSE) recognized this problem and adopted the Department of Labors and Fair Labor Standards Acts six-factor test for determining if an internship should be paid. $15.50 per hour for workers at small businesses (25 or fewer employees). The internship must teach the intern how to work in the selected industry as opposed to a specific company. : No, but such employers run the risk of violating a gauntlet of wage and hour laws, both federal and state. Links on this Web site are not intended to be referrals to or endorsements of the linked entities. Mr. Tripp is a graduate of Dartmouth College (A.B. In addition to the potential exposure Q: To count as a legitimate internship, must an intern receive school credit for their work? $15.50 per hour for workers at businesses with 26 or more employees. See, Cal. Although internship arrangements can be a good start to a promising career, some employers treat interns like free labor, giving no regard to the interns legal rights.
The intern only works during periods that do not conflict with academic commitments or the academic calendar. Over the years, we have helped countless local companies make sure that their employment practices were fully compliant with the law, and we would love to do the same for you. as a summer associate in May 2005, he has practiced exclusively in employment law and has been involved in matters pending before federal and state courts and administrative agencies covering the gamut of employment-related matters from discrimination and workplace harassment to wage/hour disputes and affirmative-action compliance. Unpaid internship labor laws regulate how employers can utilize interns as well as govern what can make unpaid internships illegal. In fact, you are nearly twice as likely to get a job offer from a paid internship than you are from an unpaid internship, and college graduates who had no internship are about as likely to find a job as those who completed an unpaid internship. Trainee Rules California wildfires - FAQs on laws enforced by the Labor Commissioner's Office. Essentially, both the DOL and the California DLSE maintain that for an internship to be unpaid, it must be educational and predominantly for the benefit of the intern, and not the employer. Interns performing these tasks were judged by the courts in Glatt v. Fox Searchlight Pictures, to not be obtaining skills relevant to any field of employment. Q: Assuming that an internship program essentially adheres to these criteria, what steps should an employer take to ensure that the program will be deemed valid in the event there is a challenge? Trainees or interns should not be performing unsupervised work during their time in the position. This fact helped establish the first criterion (similarity to training provided in a vocational school) and the second criterion (the internship primarily benefits the trainee). All Rights Reserved. In a slow economy, unpaid internships are booming. Attorney Melissa C. Marsh has considerable experience handling
2. The extent to which the internships duration is limited to the period in which the internship provides the intern with beneficial learning. In the recent DLSE opinion letter, the internship program at issue involved a program wherein all interns were simultaneously enrolled in a local community college, where they were earning up to 14 college credits. Consequently, the California Division of Labor Standards Enforcement (DLSE), which enforces the states wage-and-hour laws, will carefully scrutinize trainee arrangements to ensure that they are really valid work-for-education exchanges, rather than just pretexts by which employers can avoid having to pay employees. For an unpaid internship to be lawful under federal law, the following six criteria must be met: In addition to federal law, California has its own set of labor laws, which are overseen by the California Division of Labor Standards Enforcement (DLSE). Due to the easing of government-imposed COVID-19 restrictions, the biennial "in-person" sexual violence and harassment prevention training that janitorial employers must provide to their non-supervisory employees, may now be conducted in a manner that protects the health, safety and welfare of all participants. According to the DOL and the DLSE, interns that provide labor and services to for profit employers are entitled to the minimum wage and overtime unless the employer has a qualified training program for "unpaid interns." Most unpaid or low-paid California workers who are still in school are technically trainees, not interns. Schedule Your Consultation | 800-610-9646 Email Us, Schedule Your Consultation800-610-9646 Email Us, On Behalf of Makarem & Associates | Sep 25, 2012 | Articles, Employment Litigation, Wage and Hour Class Action Litigation. Employers generally use the term intern to apply broadly to anyone who is: (1) not being paid for his or her work, either at all or at the regular rate that normally would be paid to an employee performing the same tasks; and (2) still in school during the time that he or she is working (i.e., the internship period). 0000009918 00000 n
Assuming that an internship program essentially adheres to these criteria, what steps should an employer take to ensure that the program will be deemed valid in the event there is a challenge? Help make pay equity the norm in California. <]/Prev 911002>>
In valid trainee arrangements, employers will not be required to pay minimum wages and/or overtime because the trainees will not be considered to be employees, hence minimum wage and overtime rules will not apply. The lawyers identified on this Web site are licensed to practice law in the following states: California and nowhere else. 0000002900 00000 n
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These state standards are dictated by the Division of Labor Standards Enforcement (DLSE). In some cases, interns also suffer. Call anemployment law attorneyfrom Kesluk, Silverstein, Jacob & Morrison, P.C. 938 34
The first criterion, similarity to vocational training, appears problematic, because many internships may bear little resemblance to vocational school. (NY Supreme Court Case Number 155527/2013); Lauren Ballinger and . If you would like our experienced team to provide you with compliance advice or guidance, all you need to do is give us a call at (619) 535-1811 to set up an initial consultation. The California state standards have just been simplified and now . Under special circumstances, there is category intern-like workers outside of the medical profession that may be exempt from state, federal overtime and minimum wage requirements. (Korean)
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about the legality of a California unpaid internship. Now that we represent workers, we know what your employer will say to limit liability how to counter those claims. Do not be misled, almost all interns working for a for profit company qualify as employees rather than trainees, and as such are entitled at the very least to the minimum wage and overtime compensation for hours worked in excess of 8 in a day, and in excess of 40 in a work week. today. Any businesses that use interns in the state must submit an outline of their proposed internships to the Department. If youve been the victim of illegal employment practices, you may be entitled to monetary compensation, and the employment law attorneys at Makarem & Associates are here to help you. But, rather than looking at such informal expectations, the DLSE found this criterion was met because the agreements signed by the interns made it clear that they had no entitlement to a job at the conclusion of the program. The employer must ensure that: Failing to follow these standards may make unpaid internships illegal. Interns are no longer prohibited from occasionally and incidentally performing work done by other employees. Division of Labor Standards Enforcement (DLSE), Four Steps to Take Before Buying Business, California Consumer Privacy Act Compliance. 971 0 obj
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But, rather than looking at such informal expectations, the DLSE found this criterion was met because the agreements signed by the interns made it clear that they had no entitlement to a job at the conclusion of the program. Your California Employment Compliance Attorney. While the DLSEs willingness to abandon these supplemental factors is an encouraging sign, the difficulty of satisfying the original six-factor test remains. Consequently, the Labor Commissioners Office is lifting the suspension of enforcement of the "in-person" training requirements, established by AB 547 (2019). Many so-called internships are tricks used by employers to save money. For example, California's Division of Labor Standards Enforcement ("DLSE") has historically required that for an individual to be considered an intern, his or her training "must be an essential . 0000002653 00000 n
Those criteria are: Generally, the more a trainee job resembles a traditional job, the less likely it will be upheld as a valid education-in-lieu-of-pay arrangement. A recent New York Times article quoted Nancy Leppink, the acting director of the wage and hour division at the U.S. Department of Labor ("DOL"): "If youre a for-profit employer or you want to pursue an internship with a for-profit employer, there arent going to be many circumstances where you can have an internship and not be paid and still be in compliance with the law." 0000014966 00000 n
Whether you are considering a California unpaid internship or are already an unpaid intern, it is vital to know what your employers obligations are when accepting your labor without paying for it. Training is similar to training received at an educational institution. Trainees cannot be guaranteed a paying job at the conclusion of their training period. An employment law attorney in Los Angeles can help you determine whether a California unpaid internshipviolated federal or state labor laws. Similarly, with respect to the sixth criterion, the DLSE examined the formal agreements signed by program participants. Before your company takes on an unpaid intern, you would be well-advised to consult with a California employment compliance attorney to make sure that everything is handled correctly. 2017 Panahi Law Group. If you are an employer or individual with questions about whether a current or proposed internship is appropriate, an experienced employment law attorney at Coast Employment Law can help you navigate this complex space. 2019 - 2023 Coast Employment Law. I strongly feel that I have been able to avoid legal disputes due to the advice of their attorneys, Read More. Unpaid Internships in California have seen a steady increase over the years. The law recognizes the need for students to gain valuable work experience in their chosen field before they graduate. The extent to which an internships duration is limited to the time within which it provides an intern with beneficial learning. However, there are risks for businesses considering taking on unpaid interns. A person who chooses to donate their non-work hours to organizations such as the Red Cross is considered a volunteer. The internship is tied and integrated to the students educational program or degree. that the DLSE and California courts will do the same. 938 0 obj
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