Amanda is feeling disappointed so she has a couple of other creative questions.

“I can’t follow the DOL or Black Swan court criteria and I don’t want to follow all employment laws—those laws are a huge burden. I’m going to have my intern sign an agreement that they aren’t an employee. Won’t that work on its own?”

Amanda has a nice idea in theory, but it doesn’t work in reality. If the law says a work position is employment, it’s employment, regardless of any agreement between worker and employer. By law, a worker cannot waive their right to minimum wage or other employment law protections. Unlike other areas of law, employment law is simply nonnegotiable. This is because of the overarching policy reasons behind employment laws, including the prevention of coercion and oppression in the workplace. Basically, employment laws set the baseline or floor for minimum wages, and no one can go under that.

“Can I have an apprentice instead of an intern? Does that change anything?”

Generally speaking, the same rules for interns apply to apprentices, or any other title a farmer might assign to a person for whom they do not want to have to follow employment law obligations. There is a different legal framework for an apprentice, but it doesn’t help much. More often than not apprentices are also considered “employees” in the eyes of the law, and therefore the basic employment laws need to be followed. An apprenticeship program combines on-the-job training with academic instruction for folks entering the workforce.

Typically, apprenticeship programs are formally registered through a state or federal government agency. They are also most often affiliated with a community college or trade school where formal classroom training is provided. Most apprenticeships last for a longer period of time than a typical internship—anywhere from 1 year to 5 years. In addition, most apprenticeship positions are paid pursuant to minimum wage laws. Often, the compensation increases as the apprentice completes parts of the program.

There is one exception to the minimum wage requirement for apprentices. If market conditions are such that work opportunities will be expanded for a specific trade by paying less than minimum wage, apprenticeship programs do not need to comply with minimum wage requirements. But this must be approved by the government agency overseeing the apprenticeship program. The program needs to prove the market conditions, including projections of increased opportunities resulting from apprenticeship programs. Some states offer apprenticeship programs in the agricultural industry.

For more information on registered apprenticeship programs in your state, contact your state’s apprenticeship office, which is typically part of the department of labor or department of education.

“Okay, if I choose to follow employment laws, can I still call my worker an apprentice or intern?”

Yes. The bottom line is that regardless of what you call the workers, the farmers should assume they are employees unless the DOL’s six criteria are met or the farmer is willing to take the risk and follow the Black Swan court’s more lenient approach.