July 2013 - Parks & Recreation - 33

#2. The training is for the benefit of
the trainee. The intern should be learning something and gaining knowledge
that they did not have before interning
with your organization. If you selected them because they already know
how to do what you need done, that's
a red flag. If the internship is designed
around meeting an employer's need and
the work adds value to the organization,
inherently or monetarily, the intern assumes employee status and must be
paid at least minimum wage.
#3. The trainees do not displace
regular employees, but work under
close observation. In layman's terms,
don't have an intern perform work that
employees have performed, do perform or would need to perform if the
intern were not there. All work must
be closely supervised by an assigned
mentor/instructor. They do not work
independently. Bottom line, if you
would otherwise have to pay someone
else to do it when an intern isn't there
to do it, you'll have to pay the intern to
do it too. They're an employee.
#4. The employer that provides the
training derives no immediate advantage from the activities of the trainees
and on occasion the employer's operations may actually be impeded. This is
where the rubber hits the road...or bike
path. The employer is not supposed to
benefit from the internship - in fact,
the expectation is that it should, to some
degree, be a burden to the employer.
Most of the case law cited is on this
factor. If an intern answers a phone that
otherwise would have needed to be answered by someone else, the employer
has experienced an " immediate advantage " from the intern's " employment "
and therefore the intern must be paid
like an employee. To split hairs, if the
scope of the internship, for example,
is research, and that research does not
benefit the employer in its raw state and

does not become of value to the employer until a paid staff person further
" processes " it, that single activity could
meet test #4 for an unpaid internship.
But the question still remains, what else
are they doing for you?
Many employers falsely believe
that if their internship is coordinated through a college or university for
credit, then it automatically qualifies
to be unpaid. Not so. The first criteria
requires that the experience should be
" similar to that which would be given
in a vocational school " for the intern,
but it does not specify anything about
college credit. A paid internship would
obviously remove the handcuffs and it
could be of long-term benefit to an employer to explore paid internships as a
mutually beneficial relationship.
Sometimes nonprofit organizations
believe that the internship regulations
are different for them or don't apply,
but in reality there is only one set of
compliance criteria for both not-forprofits and corporate America. This
confusion may be due to the frequency
that nonprofits use unpaid volunteers,
which is (or should be) very different
than the " work " of an intern.
Engaging unpaid volunteers has
DOL compliance issues as well. To
continue the metaphor, it's a two-lane
country dirt road compared to the
man-made bike path through the rough
grass that an unpaid internship can be.
The four-factor compliance test for
an unpaid volunteer not to fall into
the category of employee (and therefore require compensation) is far easier to demonstrate compliance with.
The one that generates the greatest
liability (and lawsuits) is the first:
#1. The individual must not be
characterized unilaterally by the entity as a volunteer in order to avoid minimum wage or overtime obligations.
Often, this is used to protect existing

employees who are asked to " volunteer " off the clock so the employer
can avoid additional compensation or
overtime, but equally there are cases
where the creation of " volunteer " positions inadvertently (or intentionally)
displaced paid workers and employers
were found to be liable.
Best practice is to avoid tasking volunteers with work that has traditionally been performed by paid staff. Volunteers need to be free to come and go
on their own schedule, they perform
only the work that interests them and
they can't be held to performance
standards like an employee. When
you consider all that, it's frequently
more effective and (less risky) to just
hire someone to get the work done.
That's not to dismiss the educational value of an internship or the
philanthropic value of volunteerism,
but more often than not, when managers inquire about getting some unpaid interns, the motive is not, " How
can my organization give back to the
field and community at large by providing these kinds of volunteer and
internship opportunities, even if it
costs us productivity and time? " but
rather " How can I get some of this
work done for free? " That second
thought is precisely what the regulations were written to prevent.
If you have an existing unpaid
internship program, don't assume
that it's in compliance just because
" we've done it that way for years. "
Now is the time to give it a solid review and adjustment, if needed. With
rare exception, most internships that
employers designate as unpaid don't
qualify under FLSA. Bottom line -
if you don't give your interns minimum wage, the courts may give them
a whole lot more.
Lauren Yost is NRPA's Vice President of
Operations (lyost@nrpa.org).

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