It has long been the case under federal wage and hour law that unpaid interns (or trainees or students) are not employees, making them exempt from the federal Fair Labor Standards Act if they satisfy six criteria. Until now, the Division of Labor Standards Enforcement (DLSE) added five criteria to those six and, more recently, relied on a six-part test that differed, in part, from the federal test. Thus, employers had to be sure they satisfied both federal and state tests.

 

However, in an opinion letter dated April 7, 2010, the DLSE announced that it would apply just the six federal criteria in determining whether unpaid interns (or trainees or students) are exempt from California wage and hour requirements. Those requirements are that:

 

  • The interns' training, even though it includes actual operation of the employer's facilities, is similar to that given in a vocational school

  • The interns' training is for the interns' benefit

  • The interns do not displace regular employees but work under their close supervision

  • The employer does not derive an immediate advantage from the interns' activities and, on occasion, its operations may be actually impeded

  • The interns are not necessarily entitled to a job when the training period ends

  • The employer and the interns understand that the interns are not entitled to wages for the time spent in training

 

Today, employers in California who provide training to unpaid interns no longer need to be concerned about meeting two sets of criteria in ensuring that the interns are exempt under California law.

 

If you have questions about the DLSE shift on unpaid interns or other labor and employment-related questions, please contact any member of the Labor and Employment Group.


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