California Unpaid Intern Attorney
If you are an unpaid intern, please read this article closely. Although your “employer” says that you’re an unpaid intern, you may actually be an employee. As an employee you are entitled to the protections of Federal and California law, including but not limited to: minimum hourly pay, overtime pay, double-time pay, rest and meal periods, and depending on your employer, employee benefit. The United States Department of Labor has created the following test to determine if you are an unpaid intern or an employee: There are some circumstances under which individuals who participate in “for-profit” private sector internships or training programs may do so without compensation. The Supreme Court has held that the term "suffer or permit to work" cannot be interpreted so as to make a person whose work serves only his or her own interest an employee of another who provides aid or instruction. This may apply to interns who receive training for their own educational benefit if the training meets certain criteria. The determination of whether an internship or training program meets this exclusion depends upon all of the facts and circumstances of each such program.
The following six criteria must be applied when making this determination:
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.”
For an unpaid intern to be classified as an intern, rather than an employee, all of the six factors listed above must be met. Otherwise, you may be an employee. The most important issue to consider is if you are engaged in the operations of the employer or are performing productive work (for example, filing, performing other clerical work, or assisting customers). If you are, then the fact that you may be receiving some benefit in the form of a new skill or improved work habits will not exclude you from being classified as an employee and entitle you to minimum wage and overtime requirements. We realize that this is a complicated issue and the only way for an unpaid intern to truly determine if you are an employee, not an intern, is through a consultation with the experienced employment attorneys at Freiman Legal.
Contact Freiman Legal for a free consultation at 310-917-1004.