This is the time of year when college students start serving summer internships. Often, students offer to work without pay just to get the experience. But does this influx of possible free labor carry hidden risks?
Perhaps. Allowing a student to perform the work that a regular employee would otherwise perform could violate the Fair Labor Standards Act (FLSA).
The internship has to be carefully structured so that any work the intern performs is largely educational. Otherwise, you may end up on the hook for minimum wage and overtime, plus tax withholding and other employer responsibilities.
On the other hand, a true volunteer most likely won’t be able to sue for discrimination. As the following case shows, the key to liability is that the position is paid or that the volunteer somehow is remunerated for the work. Otherwise, Title VII does not apply.
Recent case: William Shaver claimed that he was turned down for a spot as a volunteer firefighter. Shaver alleged he was a victim of bias because: (1) his wife is bisexual, (2) has an explicit MySpace page and (3) both practice Wicca, a neo-pagan religion.
Although the case was dismissed on a technicality, the court explained why Shaver wouldn’t have had a case even if he had prevailed on other grounds. The court said that strictly speaking, true volunteers aren’t covered by Title VII unless they can show that they were somehow remunerated for their efforts. (Shaver v. Cooleemee Volunteer Fire Department, No. 1:07-CV-00175, MD NC, 2008)
Final note: Some courts have ruled that employers may risk discrimination claims if they use volunteers as a pool from which to select applicants for genuine employment. The possibility of employment may be “remuneration.” That’s one good reason you should apply the same fairness standards to selecting volunteers as you do to selecting employees.
To see if you’re walking into an FLSA trap, test your knowledge:
Learn these and many more FLSA answers by listening to our popular CD, Wage-ing War: The 10 FLSA Traps You Must Recognize and Avoid
- When an hourly employee travels across town or across the country, which hours are paid? What if a delayed flight causes an unexpected overnight stay?
- If employees are required to change into a uniform at work, must you pay them for that time? If so, how s-l-o-w-l-y can they change clothes while the clock is running?
- No matter how many times you tell employees to punch in and out, they occasionally forget. What recourse do you have with repeat offenders?
- Your exempt employee went on vacation but occasionally checked e-mail from the beach. Can that later be used as evidence in an overtime case?
- A management trainee works alongside hourly workers for his first week. Does that put his FLSA exemption in jeopardy?