The Difference between an Unpaid Internship and an Unpaid Employee? Employment Attorney Says “The Law Attempts to Clarify Both”

Nemeth Burwell_USE THIS
Media Contact: Barbara Fornasiero 248.651.7536 or 586.817.8414; barbara@eafocus.com

Detroit, Mich. —April 10, 2013 — It’s that time of year again. Spring break memories are fading and the hunt for full or part-time employment or summer internships for Michigan college students and soon-to-be graduates is in full gear. As these young adults update their resumes and seek meaningful employment, how can they determine if an opportunity deemed an unpaid internship isn’t a euphemism for an unpaid job? Employment attorney Linda G. Burwell of Detroit-based employment law firm Nemeth Burwell, P.C., says there are clear cut guidelines as to what defines a legitimate internship position.

“The U.S. Department of Labor’s Wage and Hour Division has outlined six criteria to help clarify and determine whether an intern is truly a trainee or an employee under the Fair Labor Standards Act (FLSA),” says Burwell. “College students, recent college grads and employers can look to the following criteria to determine if a position does not require payment.”

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 employee and the trainees understand that the trainees are not entitled to wages for the time spent in training

Ms. Burwell says the underlying theme among the criteria is the emphasis on training and not task completion.

“In short-term positions where an individual is performing the same routine tasks and producing the same outcomes as paid employees, the criteria is likely not being met,” explains Burwell. “Examples include hours-long data input of mundane information or compiling address lists where no valuable training is taking place. Further, the employer is benefitting from the completion of these assigned tasks – tasks that would typically be assigned to a regular employee.”

Another distinguishing factor is unpaid internships may often qualify for college credit.

“When an internship is offered for college credit, that internship opportunity has been vetted by the college or university and determined to have educational value and a training benefit for the student and may be appropriately categorized as unpaid,” offers Burwell.

There are several professions that rarely provide unpaid internships due to the competitive nature of the fields and to avoid issues regarding job classification or wages, notes Burwell.

“Professions such as engineering and accounting generally require strong academic skills and offer only formal, paid internships, even though training is the focus. These fields compete within their industries for the top students, who tend to have multiple paid employment opportunities regardless of the economy,” affirms Burwell.

About Nemeth Burwell, P.C.: Nemeth Burwell specializes in employment litigation, traditional labor law and management consultation for private and public sector employers. It is the largest women-owned law firm in Michigan to exclusively represent management in the prevention, resolution and litigation of labor and employment disputes.