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Interns and Trainees

Formal internships and training programs are exempt from minimum wage and overtime requirements, but civil rights protections still apply.

Internships and training programs offer excellent opportunities to preview an industry or an organization and gain valuable skills and experience. They also offer employers a way to bring new perspective and energy to the workplace as well as build and preview a pool of qualified potential employees.

But there’s a big difference between an internship and a job. Regardless of what it’s called, minimum wage and overtime requirements apply unless an internship or training program meets specific criteria. Even then, interns are still protected by civil rights laws prohibiting unlawful discrimination on the basis of race, color, religion, sex, national origin, marital status, age, disability, and engaging in protected activities such as whistleblowing.

If you think your employer is violating this law, you can make a complaint or contact us to get help.

The law

ORS 659A.350 (Civil Rights Protections for Interns)

Frequently asked questions

For workers

The U.S. Supreme Court has held that individuals who work for their own advantage on the premises of another without any express or implied compensation agreement are not necessarily employees. Often, the arrangement is one in which a student intern earns high school or college credit in exchange for participating in a training program conducted by the employer.

As a result, courts and the Bureau of Labor and Industries determine whether wage and hour protections apply by weighing several factors to determine who the primary beneficiary is of an internship or training program. These factors are:

  • The training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in an educational environment;
  • The extent to which the training is tied to a formal education program with integrated coursework and academic credit;
  • The extent to which the program accommodates academic commitments by corresponding to the academic calendar;
  • The extent to which the internship’s duration is limited to the period of beneficial learning;
  • The extent to which the internship complements rather than displaces the work of paid employees while providing significant educational benefits;
  • The interns are not necessarily entitled to a job at the conclusion of the training period; and
  • The employer and the intern understand that the intern is not entitled to compensation for the time spent in training.

Note: Determining whether a student intern or trainee is an employee will depend on all the circumstances surrounding the intern’s or trainee’s work activities. While no single factor outweighs the rest, if the totality of these factors do not weigh in favor of the intern as the primary beneficiary of the program, the obligations of an employment relationship will apply.

Do I have to be an enrolled in a school to take on an unpaid internship?

No. Participating in an internship that is connected with a formal educational program is one indicator (among several – see above) that the experience primarily benefits the intern. Determining whether wage and hour laws apply would require weighing all the particulars of the experience against the rest of factors listed above.

I found an internship that offers a small stipend — does that make this a job?

Not necessarily. While compensation for services rendered is inconsistent with exempt internships or training programs, a stipend in the form of a modest amount provided to students or volunteers to help defray expenses is not considered compensation. Stipends that are not compensation for services rendered should be distinguishable from compensation in that they may not be tied to the quality or quantity of work performed.

My internship was abruptly terminated when my onsite supervisor found out I’m pregnant – is that legal?

Although bona fide internships and training programs are exempt from minimum wage and overtime requirements, civil rights protections still apply to interns. Make sure the terms of your internship are in writing before you start. If you believe you have been discriminated or retaliated against in your internship because of your race, color, religion, sex, national origin, marital status, age, disability, or engaging in protected activities like whistleblowing, you can make a complaint or contact us to get help.

For Employers

The U.S. Supreme Court has held that individuals who work for their own advantage on the premises of another without any express or implied compensation agreement are not necessarily employees. Often, the arrangement is one in which a student intern earns high school or college credit in exchange for participating in a training program conducted by the employer.

As a result, courts and the Bureau of Labor and Industries determine whether wage and hour protections apply by weighing several factors to determine who the primary beneficiary is of an internship or training program. These factors are:

  • The training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in an educational environment;
  • The extent to which the training is tied to a formal education program with integrated coursework and academic credit;
  • The extent to which the program accommodates academic commitments by corresponding to the academic calendar;
  • The extent to which the internship’s duration is limited to the period of beneficial learning;
  • The extent to which the internship complements rather than displaces the work of paid employees while providing significant educational benefits;
  • The interns are not necessarily entitled to a job at the conclusion of the training period; and
  • The employer and the intern understand that the intern is not entitled to compensation for the time spent in training.

Note: Determining whether a student intern or trainee is an employee will depend on all the circumstances surrounding the intern’s or trainee’s work activities. While no single factor outweighs the rest, if the totality of these factors do not weigh in favor of the intern as the primary beneficiary of the program, the obligations of an employment relationship will apply.

What is clear is that labeling the relationship an “unpaid internship” or “work based training program” has no bearing on whether the work performed is subject to wage and hour law. In addition, the term “trainee” should not be confused with on-the-job training typical of a new employee. On-the-job training of a new hire is compensable work time.

Practice Points

Keep in mind that students may be considered employees and subject to both state and federal wage and hour laws if, among other things:

  • They provide essential services to the employer
  • They are working in a position where someone is normally paid
  • There is a history of paying someone to do the same or similar work
  • Other people are currently paid for the same or similar work

Be sure to closely monitor the activities performed by student interns or trainees within your operation, and make sure the emphasis stays on providing a transferable, educational experience.

Our firm has traditionally offered a small stipend to student interns. Would that create an employment relationship?
A stipend is generally considered a modest amount provided to students or volunteers to help defray expenses. Stipends are not compensation for services rendered and should be distinguishable from compensation in that they may not be tied to the quality or quantity of work performed.
If we bring in a student under the age of 18 as an intern, do we have to obtain an employment certificate and follow other child labor laws?
If, based on the criteria described above, the individual is a bona fide intern or trainee and not an employee, child labor law requirement would not apply. That said, you may want to check with your insurance carrier about any reservations they may have about having minors on your worksite.
Our site supervisor has concerns about accommodations requested by an intern for a pregnancy we didn’t know about. What are our obligations here?
For purposes of civil rights protections, state law considers interns to be “employees” despite the fact that bona fide interns are not protected by wage and hour laws. ORS 659A.350. Make sure the terms of your internships are in writing and that your policy and practice result in accommodations that are at least as generous those you would make (1) for a pregnant employee as well as (2) those you would make for an employee who is not pregnant but has a need for accommodation.
Are we able to receive any benefit at all from the work of the intern?
Yes, but it should be clear that the primary beneficiary of the work is the intern. The educational opportunity for the intern may, in fact, impede operations to some extent. Courts will scrutinize whatever benefit the organization receives to determine who is getting the most out of the relationship. If bringing on an intern results in displacing a paid employee, the primary benefit likely falls to the employer.

 

Disclaimer: This website is not intended as legal advice. Any responses to specific questions are based on the facts as we understand them and the law that was current when the responses were written. They are not intended to apply to any other situations. This communication is not an agency order. If you need legal advice, please consult an attorney.​



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