For the majority of the country it remains to be seen whether the courts’ lenient approach or the DOL’ strict approach will win (if and when a federal lawsuit is filed by interns in that region). That’s because lawsuits have yet to be brought by interns in most parts of the country so the courts in these regions haven’t faced an opportunity to address the issue. Ultimately, it may come down to whether and when the U.S. Supreme Court takes on the issue, which could be years or quite possibly never. If the U.S. Supreme Court does decide to take on the issue, it could endorse the DOL’s strict approach, adopt the more lenient approach taken by some courts, or create its own criteria. Until then, a degree of uncertainty rules. That’s simply how the law works in our country, for better or for worse.

Currently, the Second Circuit Court of Appeals—which is the highest federal court that governs Vermont, Connecticut, and New York—and the Eleventh Circuit Court of Appeals—which is the highest federal court that governs Georgia, Alabama, and Florida—have both adopted the Black Swan court’s more lenient criteria. Farmers in these states can feel relatively confident in following this more lenient approach when designing their intern programs. Farmers in other states are left with a higher degree of uncertainty.

What does this mean for the sustainable farmer who wants to have interns?

These strategies feel uncertain, right? There is a third alternative worth mentioning: Farmers can choose to follow all employment laws for their internship program; then the question of whether the intern is eligible to be treated as a non-employee is moot. The single best risk management strategy is to simply know and follow all employment laws for every intern.

Treating interns like employees isn’t going to work for some farms. Farms wanting a non-employment intern program should become familiar with both the DOL’s criteria and the Black Swan court’s criteria. They can then make a personal decision. The appropriate approach to a non-employment intern program depends on the farmer’s level of risk adversity.

Risk adverse farmers who want non-employee interns should follow the DOL’s stringent approach and meet all of the DOL’s six criteria.

Fundamentally, this means that the interns cannot benefit or help the farm business in any way. The farmer must emphasize education and support to such an extent that she practically doesn’t get anything else done. Offering academic credit can help; provided all the other criteria discussed above are present.

Farmers willing to accept risk may choose to follow the Black Swan court’s more lenient approach to non-employee interns.

This means that the farm may benefit from the internship, so long as the intern is the primary beneficiary of the arrangement. The farm may assign tedious tasks and improve profits by having interns so long as training and education is emphasized. This is still not an easy standard to meet, as the farmer must develop structured curricula, accommodate the intern’s academic studies, and go out of her way to provide education and support to the intern. Partnering with an academic institution and offering academic credit can certainly help. Farmers must realize that if they choose this more lenient approach they face the risk of enforcement action by the federal DOL as well as their state’s department of labor.