The Fair Labor Standards Act (FLSA) defines the term "employ" very broadly as including
to "suffer or permit to work." Covered and non-exempt individuals who are "suffered
or permitted" to work must be compensated under the law for the services they perform
for an employer. Internships in the "for-profit" private sector will most often be
viewed as employment, unless the test described below relating to trainees is met.
Interns in the "for-profit" private sector who qualify as employees rather than trainees
typically must be paid at least the minimum wage and overtime compensation for hours
worked over forty in a workweek."
The Test For Unpaid Interns
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:
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;
- The internship experience is for the benefit of the intern;
- The intern does not displace regular employees, but works under close supervision
of existing staff;
- 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;
- The intern is not necessarily entitled to a job at the conclusion of the internship;
- The employer and the intern understand that the intern is not entitled to wages for
the time spent in the internship.
If all of the factors listed above are met, an employment relationship does not exist
under the FLSA, and the Act's minimum wage and overtime provisions do not apply to
the intern. This exclusion from the definition of employment is necessarily quite
narrow because the FLSA's definition of "employ" is very broad. Some of the most
commonly discussed factors for "for-profit" private sector internship programs are
Similar To "An Education Environment And The Primary Beneficiary Of The Activity
In general, the more an internship program is structured around a classroom or academic
experience as opposed to the employer's actual operations, the more likely the internship
will be viewed as an extension of the individual's educational experience (this often
occurs where a college or university exercises oversight over the internship program
and provides educational credit). The more the internship provides the individual
with skills that can be used in multiple employment settings, as opposed to skills
particular to one employer's operation, the more likely the intern would be viewed
as receiving training. Under these circumstances the intern does not perform the
routine work of the business on a regular and recurring basis, and the business is
not dependent upon the work of the intern. On the other hand, if the interns are
engaged in the operations of the employer or are performing productive work (for example,
filing, performing other clerical work, or assisting customers), then the fact that
they may be receiving some benefits in the form of a new skill or improved work habits
will not exclude them form the FLSA's minimum wage and overtime requirements because
the employer benefits from the interns' work.
Displacement And Supervision Issues
If an employer uses interns as substitutes for regular workers or to augment its existing
workforce during specific time periods, these interns should be paid at least the
minimum wage and overtime compensation for hours worked over forty in a workweek.
If the employer would have hired additional employees or required existing staff to
work additional hours had the interns not performed the work, then the interns will
be viewed as employees and entitled compensation under the FLSA. Conversely, if the
employer is providing job shadowing opportunities that allow an intern to learn certain
functions under the close and constant supervision of regular employees, but the intern
performs no or minimal work, the activity is more likely to viewed as a bona fide
education experience. On the other hand, if the intern receives the same level of
supervision as the employer's regular workforce, this would suggest an employment
relationship, rather than training.
The internship should be of a fixed duration, established prior to the outset of the
internship. Further, unpaid internships generally should not be used by the employer
as a trial period for individuals seeking employment at the conclusion of the internship
period. If an intern is placed with the employer for a trial period with the expectation
that he or she will then be hire on a permanent basis, that individual generally would
be considered an employee under the FLSA.
Where to Obtain Additional Information
This publication is for general information and is not to be considered in the same
light as official statements of position contained in the regulations.
For additional information, visit the Wage and Hour Division Website and/or call the toll-free information and helpline, available 8 a.m. to 5
p.m. in your time zone, 1-866-4USWAGE (1-866-487-9243). U.S. Department of Labor
Frances Perkins Building 200 Constitution Avenue, NW Washington, DC 20210
*The FLSA makes a special exception under certain circumstances for individuals who
volunteer to perform services for a state or local government agency and for individuals
who volunteer for humanitarian purposes for private non-profit food banks. WHD also
recognizes an exception for individuals who volunteer their time, freely and without
anticipation of compensation for religious, charitable, civic, or humanitarian purposes
to non-profit organizations. Unpaid internships in the public sector and for non-profit
charitable organizations, where the intern volunteers without expectation of compensation,
are generally permissible. WHD is reviewing the need for additional guidance on internships
in the public and non-profit sectors.