I often see bright young people eager to begin their professional careers by agreeing to volunteer in exchange for substantive work experience and a strong line on their resumes. If the organization for whom they are working is a municipality or a non-profit, this isn’t likely to raise my concerns. But when an employer is a private entity, we’ve got a small problem.
Both federal and state law draws a very narrow perimeter around situations in which someone provides service to a private entity without the afforded requirements to provide them with overtime and minimum wages — or any wages at all, come to think of it.
Employment law is pretty circular — an “employer” is someone who employs someone else; and an employee is someone who is — you guessed it — “employed” by an employer.
“Employ” is defined as to “suffer or permit” an individual to perform work for you.
Luckily, the courts have realized that not all workplace situations are true employment and make a narrow exception for individuals who work without any compensation for their own advantage. Usually this only applies to student learners and trainees.
The US Department of Labor recognizes someone to be a student or a trainee, rather than an employee, only when all of the following criteria are met:
1. Training is similar to that which would be provided in a vocational school;
2. The training is for the benefit of the individual;
3. The individual does not displace regular employees, but instead work under their close supervision;
4. The employer providing the training derives no immediate advantage of the activites that the individual does;
5. The individual is not necessarily entitled to a job at the end of the training period; and
6. The employer and the individual both understand that the individual is not entitled to wages for the training time.
On the other hand, if the student provides any essential services; or they are working in a position where someone would otherwise normally be paid; or there is a history of paying someone to do that same work; or there are others currently paid for the same or similar work, then that person is an employee.
A few more catches — if someone otherwise qualifies for a student/trainee position (meaning unpaid), it’s all or nothing — this person cannot be an unpaid trainee for a summer and then be paid during the school year — or even from day to day. And, it really doesn’t matter how this relationship is titled by the people involved — call it an “unpaid internship” all you like, it doesn’t overcome state and federal law.
Do you have people in your winery or jobsite that you aren’t paying? The risks are huge — back wages, possibly back overtime, and time spent away from what matters most to you — making quality wines. Give me a call — 503-862-8583 — and we can talk about ensuring you don’t run afoul of employment laws.
Foto kindly donated by Big Foto.