The answer is: Yes, there are potential legal issues with having an unpaid intern. Interns are generally covered by employment laws—if the law doesn’t allow a farm to have an unpaid employee (or an employee without workers’ compensation), the farm can’t have an unpaid intern (or an intern without workers’ compensation). Although many industries have had interns and volunteers over time, the legal situation escalated in 2011. A number of class action lawsuits were by hundreds of interns for back wages totaling millions of dollars. Although the high profile cases were in the movie and publishing industries, lawsuits have happened on small, sustainable farms. As a result, sustainable farmers who have or are thinking about having interns are now paying close attention.
Interns are winning these lawsuits. They’re arguing that they’re effectively employees and, as such, they have a right to all the protections under laws such as the federal Fair Labor Standards Act and state labor laws which includes receiving at least minimum wage for all hours worked. Interns are winning their lawsuits because employment laws generally apply to interns. Interns are often considered employees because they do the work of the business. This means the farm may have to pay the worker minimum wage, carry workers’ compensation, withhold and contribute payroll taxes, and comply with various other obligations.
Table of Contents
- Situations where interns are not considered employees
- Strict approach: The U.S. Department of Labor has adopted stringent criteria for determining if an intern is an employee
- Lenient approach: Some federal courts in various parts of the country have recently adopted more flexible criteria
- Uncertain grounds: Federal courts in most areas of the country have yet to clarify the issue
- What about farmers who can’t meet the DOL or Black Swan requirements?
- Minimum Wage and Workers’ Compensation Requirements in a Nutshell
- What about farmers who meet the DOL’s six criteria, or are willing to take the risk and simply comply with the federal court’s lenient approach?
- What about other options?