What are the criteria to be labeled as an intern or trainee as opposed to an employee? How does this determination affect my pay?

The Fair Labor Standards Act (FLSA) is a remarkable piece of legislature which helps protect and secure employee rights and wages. It helps regulate what and how employers pay their employees while also guaranteeing specific workers’ rights such as safety and wage security. However, although it lays a protective blanket over a good number of employees and workers, it A Hand Writing the Word Internshipunfortunately leaves some out in the cold by putting exemptions on their work titles. As a result, a common employer technique used to avoid having to pay fair wages and overtime is to misclassify or misrepresent job titles

In other cases, the FLSA doesn’t intentionally exclude workers, but it doesn’t cover them either. A specific instance involves student internships and training programs.

The FLSA only addresses the term "intern" twice where it exempts Congressional interns from the definition of "employee," and where it is explained that medical interns do not have to be paid on any particular basis. From these excerpts the U.S. Supreme Court (1947 case Walling v. Portland Terminal Co., 330 U.S. 148), ruled that certain types of trainees shall be completely excluded from FLSA coverage as they are not classified as employees. However, the requirements for such total exclusion are quite particular.

Criteria for an Internship or Training Employee Exemption Status

In order for an employer to withhold wages under the FLSA training and internship exemptions, he must be able to prove the job in question satisfies following criteria:

  • Work duties and responsibilities are designed to teach. Although the work will be performed in an actual business setting, the training and duties of the employee (intern/trainee) must be constructed in such a way that the employee will learn from the experience as if his duties were preparing him for a similar career (responsibilities akin to vocational school). A training certificate may also be necessary for the completion of the training that the employee could use as a qualification on subsequent job applications.
  • Training benefits trainees not strictly employers. If an employer is withholding monetary payment for work, he must be able to prove that he is “paying” the employee with valuable experience or at the very least helping him build his resume to make him more hire-able and attractive for future employers.
  • Trainees are under constant supervision. To be able to say an intern or trainee is not an employee than his duties may not displace regular employee duties or allow him to work without observation. The trainees do not displace regular employees, but work under close observation.
  • Employers must not derive immediate benefits as a result of the training program or work completed by the trainees. Since the actual productive work will be completed by “paid employees,” the duties and responsibilities of the trainee or intern should not have a huge positive effect on the employer as he is not paying for the work.
  • Job security isnt guaranteed. In order to claim training or interning status the employer must make it clear to the trainee that the work performed during training does not guarantee him a permanent placement in that job. Although an intern or trainee can be hired in as an employee, an intern can’t continue his “internship” indefinitely without pay.
  • Informed consent and understanding of limited wages. In order for an employer to deny wages and overtime to an employee in training, he must make it perfectly clear that trainees are not entitled to wages for the time spent in training. If the employee was unaware of the withheld wages or didn’t explicitly sign an agreement stating that payment for training services shouldn’t be expected, then the employer may be liable for lost wages.

You Deserve to Be Paid for Your Work

Although it’s useful to know the criteria for being subjected to training and internship pay, what do you do if you’re not an intern but still getting paid as one? If your work duties and requirements don’t satisfy at least two of the above internship and training guidelines you should be receiving full pay and benefits. 

Unfortunately, employers like to avoid paying their employees at any cost. Unfortunately for them, we like to make sure our clients get rewarded for their hard work, whether it be through learning, school credit, or reasonable wages. Contact us today for a free consultation and see how we can help you get the money you have rightfully earned.


Galvin B. Kennedy
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Galvin Kennedy is a founding partner of Kennedy Hodges. He focuses his practice to overtime and wage claims.