The U.S. Department of Labor has adopted stringent criteria for determining if an intern is an employee.
Up until the recent lawsuits were filed and the courts have stepped in, the U.S. Department of Labor (“DOL”) was the decisive voice nationwide on the legal issue of interns. The DOL has established six criteria for determining whether an intern is an employee for the purposes of the federal Fair Labor Standards Act.
Under this approach, all six must be met for a farm to legally have an internship position that does not have to comply with employment laws. Here’s a brief overview of each of these six criterion:
1. Training must be provided that is similar to a classroom educational experience
First and foremost, the farm must provide training to the intern. What’s more, this training has to be structured, or similar to a classroom style education. It can be helpful if a college or university oversees the experience and offers academic credit. However, simply offering academic credit may not be enough on its own to meet this criterion. Fundamentally, the training provided has to be transferrable to other farms across the industry. It can’t simply be specific to how that farm operates. In this way, the internship should set the intern up to launch her career in sustainable farming or start her own farm operation, not simply to work on that farm. In addition, learning objectives need to be established through set curricula and the intern’s achievement must be monitored to be sure the intern is in fact learning something.
2. The farm must get no immediate advantage from the operation of the internship
This is a tough standard to meet. The farm must actually be impeded by the intern, and get absolutely no immediate advantage from the intern’s activities. Unlike other staff persons, the intern must receive close and constant supervision. What’s more, the intern must perform no work or very minimal work. The supervisor can’t tell they intern: “Go pick carrots and come back in an hour.” Instead, the supervisor must constantly provide training and feedback and literally trail the intern around the farm watching every task. The intern can only perform work to the extent that she needs to in order to learn the task at hand. It likely doesn’t take 8 hours of picking carrots to learn how to pick carrots. Nor does it take 40 hours of weeding to learn how to weed! These sorts of tedious and time-consuming tasks would likely not be appropriate to assign to an intern under this standard.
3. The farm must have separate staff whose primary role is to run the internship program
The farm must designate an existing staff person or hire an additional person to manage and supervise the intern. If it’s an existing staff person, she would have to work more than if the intern were not there. It’s not as though the staff are heavily engaged in the farm work and running the internship program alongside what’s already being done on the farm. The internship program has to be its own stand alone operation.
4. The internship may not be trial period for a future paid position
The farmer can’t say, “I’ll hire you next year if you work for free for the summer to learn how our farm here operates.” The position can’t simply be a trial period, or a training for future work. The internship must serve to set the intern up for a career in the industry, not just a future job for that specific farm.
5. Experience is for the benefit of the intern, not the employer
The intern must be the primary and sole beneficiary of the arrangement. In other words, the offering of training and experience to the intern supersedes any objective of the farmer to make profits or increase efficiency by having an intern. This may be the case if the farm had a mission to train the next generation of sustainable farmers. The reality is that it costs money, perhaps even more money than the farm pulls in, to have an internship program. The internship program cannot be a profit-making venture.
6. The intern understands that the position is unpaid or paid at less than the minimum wage
If a farmer chooses to have an unpaid intern, she needs to be sure to clearly communicate the arrangement with the intern. The best way to do this is to get it in writing upfront. Not only will this ensure that the farmer and the intern have a shared understanding that the position is unpaid or paid at less than the minimum wage, it provides proof that this arrangement was agreed to in advance should any issue arise.
Most farmer readers are likely thinking that it’s nearly impossible to meet these criteria! Do not fear. While this is the most conservative and least risky approach, as we’ll soon see, it can be done. And, there’s another option.