Brandon Ruiz, whose Los Angeles law firm Hennig, Ruiz & Singh represents workers in wage disputes, reminds employers that labels mean nothing.
Employers must ensure interns work under close observation and do not displace regular employees. The California Labor Standards and Enforcement Division (LSD) also has specific rules for interns. A complete copy of the decision is here. But this factor adds little because the FLSA [minimum wage and overtime law] does not allow employees to waive their entitlement to wages." The Ministry of Labour addresses this subjective issue with the flexible seven-part primary beneficiary test, which was updated from the stricter six-point test in 2018. A common concern that the federal government and the California government have about unpaid internships is that the internship must be beneficial to the intern, with no benefit to the employer, or even suffer a slight loss of income or resources on behalf of the intern. All companies that employ interns in the state must provide the department with an overview of their proposed internships.
Although these students are only allowed to do unpaid internships, they still have to pass the principal beneficiary test the inability to accept compensation is not a legal loophole. Ms. Workmans Intern Agreement with UCSF stated the internship would be for 17 hours per week. The Labor Commissioner found the following: Ms. Workman was not enrolled in a college or university. Many well-meaning bosses will be surprised to learn that their off-book internship violates labor laws. The internship is tied and integrated to the students educational program or degree. Thus, the law allows students to buy this experience with their labor. Managing Director, Legal Affairs The minimum wage in most areas of California is $9, which will be increased to $10 effective January 1, 2016 ($12.25 in Oakland; $9.60 in Richmond; $9.75 in San Diego; $11.05 in San Francisco). It is interesting to note that the Labor Commissioner applied the Six-Criteria test in the public sector, and not just in the private sector. However, the student reading the article before the editor does not replace the editor, and the student is not writing the article or contributing original work to it. Because the Black Swan case involved interns employed in the entertainment industry, employers of MFT Registered Interns were uncertain of its applicability to MFT Interns in California. The qualifications required for interns in California are very similar to those of the U.S. Department of Labor. If the student were to be editing the article, and the edits went on to be part of the published work, or if the student were to be writing the article and the reporter is turning it in as their own, the student should receive fair compensation. As a result, it is important to verify and update any reference or information that is provided in the article. Alternatively, if you are not earning money for the company but saving the company money on their employment costs, you are also entitled to compensation. Her assignments included, but were not limited to, intake and clinical assessments of new clients; brief clinical intervention to clients; referral of clients to professional services as needed; telephone consultation with supervisors; lead employee support groups; and participation with the supervisor in management consultation and work unit intervention. When two unpaid interns filed a lawsuit against Fox Searchlight in 2011 demanding back pay for their work as employees (in what is widely known as the Black Swan case),1 CAMFT experienced a rise in questions and concerns regarding the legalities of unpaid internships. Although Ms. Workmans case may not necessarily apply to all internships or employment of interns in California, the ruling should certainly be on employers radar when classifying MFT Registered Interns. Training is similar to training received at an educational institution. New York, for example, implies that internships must provide transferable (rather than company-specific) training and may not have an immediate benefit to the employer even if the intern is the main beneficiary. Meal Break violations can extend back four years, VIDEO LINK: Michael Tracy discusses Liquidated Damages for Overtime (QuickTime 6MB), Michael Tracy is a licensed attorney only in California. To the extent that interns are paid as employees, their employer may not require such interns to pay for the required supervision., In addition, the Psychologist licensing regulations expressly prohibit an employer and a primary supervisor or a delegated supervisor to receive payment, monetary or otherwise, from the supervisee (pre or post-doctoral) for the purpose of providing supervision.4. Although illegal internships have been around for decades, it is only now that individuals are suing to protect their rights. California Labor Law Meal Breaks If the intern is doing work that benefits the employer and would otherwise be done by a regular employee, it is unlikely to be an internship. If the company asks you to perform a task that a paid employee should do, the law requires compensation. At UCSF, Ms. Workman worked ten hours per day, five days per week. Interns must not displace employees or do the work a paid employee would typically perform.
Maybe the student will have a chance to review a draft of a journalists newest article before they pass it on to the editor. TheTherapist Remember that an internship must link to an accredited school or vocational program to qualify as an internship in the state of California. All Rights Reserved. unpaid internships paid intern should The information provided should not be used as a substitute for independent legal advice and it is not intended to address every situation that could potentially arise. Ultimately, the Court found that the "interns" were not "interns" but rather employees. Family and Medical Leave Act (FMLA) in California, Legal Representation for Harassment Claims, Retaliation for Reporting Illegal Practices, California Fair Employment and Housing Act. California labor law is on your side. April 2013: California's executive exemption defined. An employer who takes advantage of individuals by taking free work violates the very nature of modern American capitalism and California state laws. An internship program must meet all six criteria to be exempt from the wage and employee protections put forth by the FLSA. (4) The employer that provides the training derives no immediate advantage from the activities of the trainees and on occasion the employers operations may actually be impeded;
Ann Tran-Lien, JD, is a staff attorney and the Managing Director of Legal Affairs at CAMFT.
In analyzing past internship cases, the Court noted that "The Supreme Court did not weigh the benefits to the trainees against those of the [company], but relied on findings that the training program served only the trainees." ca.gov/dlse/DistrictOffices.htm, (http://www.dol.gov/whd/ america2.htm#California. A summer of free work can ultimately prove to be very expensive if the intern later claims a salary. Note that the test only applies to for-profit organizations. Got Overtime? Employers must ensure interns know that they are not entitled to jobs at the end of their internship period. Compare salaries for Interns in different locations. The average salary for a intern is $17.94 per hour in California. The media is a common area in which internships are encouraged as studying journalism and reporting the news are different, and students with a good internship make themselves more employable. An intern is not entitled to receive compensation if the internship is supervised by a college or university, or if the intern is engaged in job shadowing but does not actually perform much work for the companys benefit. Unfortunately, many companies are willing to take free work without giving students anything of value. Failure to do so could violate national and state labor laws. By providing the counseling services, Ms. Workman displaced other therapists who may be employed to provide the services. (6) The employer and the trainee understand that the trainees are not entitled to wages for the time spent in training. (Page 25). An intern can learn and participate, and this can take on many forms. An intern can learn from an existing employee by shadowing them. Ms. Workman acquired her doctoral degree in Clinical Psychology in January 2011 and was not enrolled in school at the time of her position with UCSF. Kristi Porter, the Georgia-based solo pioneer behind copywriting consultancy Signify, also found her unpaid internship program to be an overall positive experience. (See page 23). The trainees and/or interns are not entitled to a job at the conclusion of the training period. Unfortunately, many businesses use interns as a way to get free labor or to avoid hiring new staff. Since this case, a number of other interns have also sued, including interns at Conde Nast. The Six-Criteria test is as follows: The Labor Commissioner applied the Six- Criteria test to analyze whether Ms. Workman should have been classified as a W-2 employee and paid at least minimum wage for each hour worked. Noting that the "training" providedincluded routine items such as"how [the company] watermarked scripts or how the photocopier or coffee maker operated." The film production companies argued that the individuals were "trainees" who were receiving a valuable educational experience and were thus not entitled to wages. 2022 Kesluk, Silverstein, Jacob & Morrison, P.C. 555 salaries reported, updated at July 15, 2022. If you do not receive compensation while doing something that adds value to a company, that often violates labor laws. California Labor Code section 221 specifically prohibits employers to require employees to relinquish or pay back a portion of their wages to their employers. California laws do not expressly exempt individuals participating in an internship from the minimum wage and overtime requirements. It is important that the entire facts and circumstances of a particular situation be examined to determine the appropriate internship arrangement. The Court also discounted the fact that the "interns" agreed not be be paid any money. These rules form a seven-part Primary Beneficiary Test to help employers and interns remain compliant with all labor laws. Thus it is not a balancing test of whether the "internship" is really good for the individual. (1) The training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in a vocational school; The United States Department of Labor puts forth a Six-Criteria test that must be applied when determining whether an intern is exempt from the FLSA. It is now led by Stephen Engelberg, a former managing editor of The Oregonian and former investigative editor of The New York Times, and Richard Tofel, the former assistant publisher of The Wall Street Journal.) The reality is, most internships are at least partially what the law categorizes as paid work. For starters, the intern must be the primary beneficiary and not the employer. The work that the intern performs cannot replace a paid worker. The fact of the matter is, unpaid work is just thatunpaid. 5 http://www.propublica.org/about/ (ProPublica was founded by Paul Steiger, the former managing editor of The Wall Street Journal. If you worked at an internship that sounds more like a job, labor laws entitle you to compensation. The intern knows that the position is unpaid. (3) The trainees do not displace regular employees, but work under close observation; If you lose your internship because you asked for compensation for your work, you might have the right to seek damages, and your employment attorney can help. If you are an unpaid or low paid intern, you may be entitled to receive compensation from your employer. So what can an intern do? The following is a summary of laws and opinions employers of MFT Registered Interns are recommended to review. To learn more, call us today at (310) 273-3180 or fill out our confidential contact form to schedule a free consultation. Ms. Workman was completing 1,500 hours toward her Psychologist license and her internship with UCSF was not connected to her graduate program or any other academic program. Before you begin to overcome the legal hurdles of employing an unpaid intern, it may be useful to consider the moral issue as well. Ann is available to answer member calls regarding legal, ethical, and licensure issues. The law recognizes the need for students to gain valuable work experience in their chosen field before they graduate. In order for unpaid internships to be lawful in California, employers must comply with the requirements set out by the Division of Labor Standards Enforcement (DLSE): The U.S. Department of Labor released new guidelines in 2018 to determine whether an unpaid internship is lawful: The difference between work and an internship is something the company you are working at might hope that you dont understand. While some large companies can play the game by including legal fees in labor costs paying an out-of-court settlement to an intern is even cheaper than paying the salaries of 25 interns small businesses don`t have such a luxury. California Labor and Employment Blog MFT Registered Interns are post-graduates gaining hours of experience toward licensure. The value that you add to the company does not have to be direct money, such as sales. 0474 20 49 98. August 2013: Unpaid internships are illegal. This article gives an overview of some of the issues for companies that may be considering hiring an intern. The Labor Commissioners ruling in this case is in harmony with CAMFTs interpretation of the applicable labor and employment laws. The Labor Commissioner ordered the Regents of the University of California, San Francisco Branch to pay Ms. Workman a total sum of $14,126.67 for unpaid wages, liquidated damages, and interest. California law provides an employee is entitled to recover liquidated damages in an amount equal to the wages unlawfully unpaid as well as interest.3. If you think that you are owed overtime pay or suspect some other type of labor violation, please fill out the Free Overtime Case Evaluation Form. From August 6, 2012 to January 31, 2013, Ms. Workman worked a total of 858 hours which UCSF failed to compensate. (5) The trainees are not necessarily entitled to a job at the completion of the training period; and Interns must be trained to work in a specific industry and not be trained to perform work that can only benefit one company. The LSD generally disapproves of unpaid training agreements and will invalidate these agreements if it is doubtful or uncertain whether all of the above criteria have been met. Employers must ensure that potential interns are aware that internships are unpaid. In the case of CBD`R US, the lack of academic affiliation in its internships could be problematic. Are Non-Compete Agreements Valid in California? According to the Marxist view of capitalism, labor is a commodity bought and sold on the market. 1 Glatt, v. Fox Searchlight Pictures, Inc., No. Generally, nonprofits do not receive automatic exemption from compliance with the wage and hour laws. It must follow strict rules when hiring and employing unpaid interns. Endnotes If a work setting, whether a private practice, a public institution, or a nonprofit, is exempt from Californias wage and hour laws, the key issue would be whether the setting is operating a commercial enterprise. For an in-depth look at commercial enterprises, read Staff Attorney, David Jensens article, Part 2: Are Nonprofits Commercial Enterprises? [The Therapist (July/August 2013)]. A review of the facts of this case reveals four key similarities to how many MFT internships are currently structured. The relevant discussion of what an illegal internship is starts on page 19. Ms. Workman alleged she performed duties of a regular employee and UCSF had misclassified her position as an intern instead of an employee. Some employers find that the quality of a paid intern`s talent outweighs the profitability of an unpaid intern. Pertinent State Labor Laws: An MFT Registered Intern who is classified as an employee is subject to Californias labor laws. This is not in line with current California or federal labor laws.
The Legal Department articles are not intended to serve as legal advice and are offered for educational purposes only. The Fair Labor Standards Act (FLSA) is federal law that provides minimum wage requirements and other protections for employees. If a company is not able to reduce the risk of unpaid interns, the alternative is to pay the minimum wage and, if necessary, overtime. How is this ruling relevant to MFT Registered Interns? It should be noted that unpaid internships often lead to long and lucrative careers in a person`s chosen field. If you believe that your employer is using your unpaid internship unfairly, you deserve to have an experienced employment lawyer in your corner. California Private Attorney General A school or agency must supervise internship training. This means that the student will not be sitting at a table stuffing envelopes for hours or handing out mail to employees. The Legal Analysis The employer derives no immediate advantage from the activities of the trainees and/or interns, and, on occasion, the employers operations actually may be impeded. Throughout the years, CAMFT has provided our interpretation of pertinent California labor laws, as well as suggestions and recommendations to employers and prelicensed members on the employment issues fundamental to the LMFT profession. Unpaid work is illegal, and what differentiates work from an internship is the value that you add to the company. UCSF contended Ms. Workman was not an employee, but an intern. The Six-Criteria Test: As referenced and applied by the Labor Commissioner in Ms. Workmans labor case, the Six-Criteria test was established by the U.S. Department of Labor, Wage and Hour Division (WHD) to help determine whether an internship or training program is excluded from the FLSAs minimum wage requirements. Ms. Workmans internship with UCSF was not connected to her academic program. The issue is that every employee must make the minimum wage, and employers cannot get around this by calling the work "volunteer" work or an "internship." Any internship that does not meet these standards must pay the minimum wage. The position required Ms. Workman to provide individual counseling to faculty and staff at UCSF and at the UCSF Office of President. Maybe the student provides feedback that the journalist appreciates. Ms. Workmans payroll taxes were withheld from her paychecks. For example, a journalism program at an accredited school might require an internship.
Ms. Workmans duties were not directly related to the training and the educational objectives of a program. This also applies to international students without permission to work in the United States. After graduation, when these students are surpassed by those who had the support for an unpaid internship, their disadvantage becomes even greater. Internships must be part of an established course of an accredited school or vocational training program. Californias minimum wage requirements are set forth in various statutes, as well as in Orders of the Industrial Welfare Commission. For further reading on CAMFTs interpretation of the labor laws and our recommendations on this issue, see Sara Kashings article, Part I: Charging Trainees and Intern Employees for Supervision [The Therapist (July/August 2013)]. It is wage theftplain and simplewhen you perform the work of an employee within the context of your internship. From August 6, 2012 to January 31, 2013, the Regents of the University of California, San Francisco Branch (UCSF), employed Ms. Johanna Workman as a Post-Doctoral Psychology Intern. 
The Court noted that the only exception for trainees is when NO BENEFIT AT ALL is provided to the employer. In such cases, the employer is not the only one to be punished; The trainee may be threatened with expulsion.
Individuals may contact a local Labor Commissioner office for general information about wage and hour laws (http://www.dir. Many companies offer unpaid or low paid internships in exchange for experience. In general, an intern should be paid at least minimum wage if he or she does not receive academic credit in exchange for his or her work and if the intern performs work for the benefit of the companys business. 
So, an intern cannot perform work that a paid worker should perform and cannot contribute direct value to the company. The internship only lasts for a period of time in which it imparts beneficial learning upon the intern. California Labor Law Class Action
The Labor Commissioner of California issued a ruling that will help employers determine whether an intern can be classified as a volunteer or as an employee. The trainees and/or interns do not displace regular employees, but instead, work under close observation. Nick Yphantides Highlighted In Media Coverage Of Disability Discrimination Case Against San Diego County, California Judge Rules Ballot Initiative Classifying App-Based Drivers As Independent Contractors Is Unconstitutional. If the internship agreement is declared invalid, the employer may be held liable for various damages and penalties, including: (1) the difference between what an intern paid per hour of work (if any) and the applicable minimum wage; (2) Salary of one and a half and/or double time for all hours spent by the trainee more than 8 hours in a single day, more than 40 hours in a single week or out of 7. worked consecutive working days; and (3) fees ranging from $100 to $250 per intern who did not receive a reasonable minimum wage and/or overtime per pay period in which the intern(s) were not properly paid. 2 Johanna Workman, v. Regents of the University of California, San Francisco Branch, Case No. One of the principal issues for therapy internships is whether employers of MFT Interns can charge intern employees for supervision and other employment expenses. 3 California Labor Code 1194.2 If the Ministry of Labour determines that the internship violates the FLSA, that intern would be violating their immigration status. Employers must ensure the internship benefits the interns, not the business. Fill out our case review form for free legal advice on the legality of an unpaid internship in California. Mr. Maynard states The Boards laws generally contemplate that interns should be paid for their work as employees. If you are considering an unpaid internship this summer, you might wonder if this type of work is legal. Unpaid internships completed in accordance with federal and state guidelines can be beneficial to both the intern and the employer. About Us | Chapters | Advertising. The training, even though it includes actual operation of the employers facilities, is similar to that which would be given in a vocational school.