Dive Brief:

• An attorney writes in SHRM.org that internships are an increasingly popular way for students to “try out” a particular career and for employers to identify new employees to hire upon graduation, and more colleges and universities are requiring such training for graduation.
• As the lines between education and employment continue to blur, anyone managing a workplace should be familiar with relevant child labor issues and laws, writes the author, Lauri Cleary, an attorney with Lerch, Early & Brewer.
• Employers mis-labeling interns may violate applicable tax, wage and hour, wage payment, immigration, workers’ compensation laws, the Employee Retirement Income Security Act, and other state and federal laws. And there's more, as intrusive audits and investigations, burdensome and expensive litigation, and substantial civil fines and penalties could follow, she writes.

Dive Insight:

Cleary writes that the best practice is to put an internship program to the test—FMLA and DOL test. She adds that key factors tending to support a court’s finding that an intern or other “trainee” is not an employee require a look at whether the trainee works for his or her own benefit to learn a profession or vocation with adequate supervision and instruction from the company; that the company does not derive the primary benefit of the work performed by the intern; and that the trainee does not displace paid employees.

She says employers must decide whether a program would have trouble meeting any of the six factors in the DOL’s test and, if so, see whether the more general three-factor test distilled from the court cases would be met. Then, rethink whether the particular attributes making it difficult to meet all six DOL criteria and all three court criteria can be revised or discarded entirely to reduce risk.