By Michael J. Burns, courtesy of SBAM Approved Partner ASE
Summer is approaching and young people will be getting out of school. Summer jobs become a priority. One of the first harbingers of summer is the annual search for college internships. These days, most internships are paid jobs, although some are still unpaid. The U.S. Department of Labor and the Courts have weighed in on internships, and for all practical purposes most unpaid “internships” in commercial establishments are illegal even though they are great at exposing the intern to real-life work.
The second harbinger of summer is the influx of minors looking jobs so they can earn some money. Persons under eighteen years of age are subject to restrictions as to the work they are permitted to do and the hours they are allowed to work. These restrictions vary from state to state and employers that use minors must be aware of the laws and regulations that control that employment.
Employers that engage young people in either or both of the above circumstances should be familiar with the law addressing internships and employment of minors.
Internships
The DOL, citing its interpretation of Section 6 of the Fair Labor Standards Act (FLSA) holds that a non-exempt employee who is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or the production of good for commerce, be paid at least the minimum wage. End of sentence, end or story. Therefore employers engaging “interns”, unless they meet stringent internship conditions cited below, should treat these students as non-exempt employees.
To be a true unpaid internship no employment relationship must exists between the parties. The DOL has set up certain criteria under which an intern will be considered a trainee. It has to be coordinated through a school program that is “designed to provide students with professional experience in furtherance of their education and training and are academically oriented for their benefit.”
In the DOL’s Field of Operations Handbook, here are the relevant factors, all of which must apply:
- The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment
- The internship experience is for the benefit of the intern
- The intern does not displace regular employees, but works under close supervision of existing staff
- The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded
- The intern is not necessarily entitled to a job at the conclusion of the internship
- The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship. (FOH §10b11)
The standard for using an unpaid intern is very high towards ensuring that the student is not really performing any true or “productive” work. Employers using unpaid workers are warned to review any “intern” activities and ensure they meet the six DOL standards. There are two big cases making their way through the Courts that may or may not loosen these criteria in the future. In summary, if your organization wishes to use unpaid interns, it will need to set up a program with a school and develop activities that, perhaps counterintuitively, do not result in productive work being done. Otherwise payment of wages is required.
Youth Employment
Employers hiring persons under 18 years of age are subject to and must comply with Michigan’s Youth Employment Standards Act. This law lays out a myriad of conditions for employment if an employer wishes to engage such a person.
The following is a partial list of restrictions contained in the law. For more information on Michigan’s Youth Employment Standards Act, members can reference ASE’s Virtual Library or by calling Research at (248) 223-8021.
- Most jobs cannot be performed by a minor under the age of 11.
- Between the ages of 11 and 14, a minor can be a golf caddy or youth athletic program referee or umpire and certain limited other activities. At thirteen years of age certain farming operations and setting traps for skeet and sporting clay events.
- Upon reaching 15 years of age there are fewer restrictions but employers must avoid using minors in “an occupation that is hazardous or injurious to the minor’s health or personal well-being or that is contrary to standards”
Employers should remember that if the minor is in school (not on summer break) a work permit from the local school district is usually required. The employer needs to keep a copy of the permit on file. The minor may need a statement from the employer of their intent to employ the minor that states the nature of the occupation in which the employer intends to employ the minor. The minor may have to provide other documentation for this permit.
In addition to restrictions on what the minor can do there are, depending on the age of the minor, restrictions on days and hours of employment. For example, minors under 16 years of age are limited to working no more than:
- Six days in one week.
- A period longer than a weekly average of eight hours per day or 48 hours in 1 week.
- Ten hours in one day.
- For a minor 16 years of age or older who is a student in school, a combined school and work week of 48 hours during the period school is in session.
Minors must also be given a 30-minute meal or rest period if they have worked for more than five hours.
If your organization hires minors for work, become familiar with Michigan’s employment of minors laws and regulations or those of the state the employment is in.