Make Sure Your Volunteer Workers are Real Volunteers

Over the holidays you may get a call from a friend or a relative looking for some work for her college aged son or daughter to (let's be kind) boost the resume. The closer is: he'll work for free! That seems like a win-win. Your Pennsylvania business gets some assistance and the student gets away from his smart phone to begin to learn some work skills for the future. But let's do it legally.

The problem presented is whether the "intern" will be considered an "employee" and therefore entitled to payment. The answer comes from the Fair Labor Standards Act (FLSA), the statute the governs minimum wage, child labor and, most importantly, overtime compensation. The FLSA is an arcane statute with lots of unintended consequences even for the most conscientious employers.

In the case of the college intern back in the Philadelphia area the best bet is to attempt to classify the worker as a "trainee." The FLSA has a six point criteria for determining if the student is an employee:

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;
2. The training is for the benefit of the trainees or students;
3. The trainees or students do not displace regular employees, but work under close supervision;
4. The employer that provides the training receives no immediate advantage from the activities of the trainees or students and, on occasion, his operations may even be impeded;
5. The trainees or students are not necessarily entitled to a job at the conclusion of the training period; and
6. The employer and the trainees or students understand that the trainees or students are not entitled to wages for the time spent in training.

Although you may not have concern for a lawsuit by your niece, it is best in all employment matters to set up a standard non-discriminatory policy and stick to it. We recommend that you write a short agreement that contains all this criteria, especially an acknowledgement that the "trainee" will not be paid.

If you have a comment about the FLSA or are thinking of doing any hiring this season then drop us a line.