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The Intern That Isn't: Federal law and farm internships

Regardless of an individual’s title, if an employee does work that benefits the farm then that individual does not meet the legal definition of an intern. Barring some other exception, that person is a regular employee and should be paid the minimum wage. This criteria make it a challenge for many farms to offer internships at less than minimum wage.

What’s the situation?

Many farms all across the country host interns each summer. Internship programs vary widely in terms of the size of the farm, the type of work done, and the compensation offered. This rite of passage is proudly recounted on the resumes of many young farmers. For the sake of learning, some of these interns don’t mind working for very low wages.

Where does the law come in?

Just like with apprenticeships, there  are federal standards for an internship. If those standards aren’t met, then the intern is actually a regular employee and must be paid the minimum wage.

Details, please:

In case you missed previous posts about apprenticeships, here’s the 30-second version of how to create a federally-compliant apprenticeship program: Draft educational curriculum lasting at least 144 hours, demonstrate that you are a qualified instructor, register with the federal government, and show that you can’t otherwise find any qualified workers. Then you can have an apprentice at less than minimum wage for a short time period–perhaps 3 months. Obviously, most farmers are looking for a different option.

So what about internships? Are internships an easier way to balance wages with an educational experience? In a word: No. Many internships–whether we’re looking at a farm, an advertising agency, or an engineering firm–don’t comply with federal law. A real “internship” has to satisfy six criteria in order to pay less than minimum wage. Over the next month I’ll talk about each of them, but this post will cover only two criteria. (If you just can’t wait, download the Department of Labor’s fact sheet and read all six.)

First, an internship must be for the benefit of the intern. An intern gets benefit out of training that is generally applicable to all businesses in an industry rather than training that applies only to the business hosting the intern. Sounds easy enough, right? The basics of farming–seeding, cultivation, harvest, and delivery–are applicable to all farms. Yes, different farms have different precise methods of seeding but an employer could easily strike a balance with this criterion.

Second, an internship must not provide the host business with an immediate advantage. The employer receives an immediate advantage when the intern performs the routine, productive work of the business on a regular basis. Assisting customers and filing or clerical work are specifically included as “productive work.”  When it comes to farming, those same basics I mentioned above–seeding, cultivation, harvest and delivery–are each routine, productive farm tasks. Even though those tasks provide interns with skills and positive work habits, the fact that their work benefits the employer makes the individual an employee, not an intern. Only through an apprenticeship program can you get “credit” for your educational program such that you can pay less than minimum wage. The intern is very different than an apprenticeship because the intern benefits him or herself, and not the business.

This doesn’t seem to make much sense right? Why would a farmer hire an employee just for the benefit of the employee and not the business? If you are asking yourself that question, you are on the right track: That is exactly the legal distinction. An intern does not need to be paid minimum wage because he or she is not actually an employee. Employees help the business. A person who spends time at the business for educational purposes is not benefiting the business. Perhaps the history of this exception will help explain the legal distinction.

Interns are treated very differently than apprentices under the law. The Fair Labor Standards Act requires that all employees be paid minimum wage and overtime (with some exceptions) and the regulations lay out detailed requirements for an apprentice. Internships are not mentioned anywhere in the FSLA and there are no corresponding regulations on internships. So how do we know they don’t have to be paid minimum wage? We know it because of a court case, not because of the statutes.

In 1947 the Supreme Court had to decide if unpaid prospective railroad brake operators were “employees” under the FLSA. These young railroad brakemen followed experienced brakemen around the yard, eventually doing a little operation of the brakes themselves. These trainees were practicing how to operate train brakes so they could secure a job after their training finished. The railroad company had neither hired them nor promised them a job; it simply allowed them to follow experienced brakemen around and practice. A labor union was upset at the situation and sued to require the railroad to pay these trainees minimum wage, like other employees received. Since the trainees provided no benefit to the rail company, and even hindered its operation as they braked aimlessly across the rail yard, the Supreme Court said they were not employees and not entitled to minimum wage.

That 1947 case has defined an unpaid internship ever since. In March of 2010, the Department of Labor issued a fact sheet reaffirming that each of the six criteria outlined in the railroad case are essential if an employer intends to pay an intern less than minimum wage. Many folks think the fact sheet is a sign that the Obama administration is going to take a harder look at internships, perhaps because of the difficult economy.

So, that’s the long introduction to internships. To summarize, if you have a helper that benefits your farm, you don’t have an intern. The term “intern” can only be used for a training position that is for the individual’s benefit, not the businesses benefit. Of course, that’s not all. Next time I’ll talk about the other four criteria, and after that we’ll get into new state internship laws and providing housing and food in lieu of wages.

What do you think?

  • Internship requirements are in the media these days. Has the increased attention caused you or your farming neighbors to think twice about hiring interns?
  • Interns shouldn’t be an excuse for not hiring normal employees. But do you think farmers are using interns as an excuse? Is the choice between interns or no help at all, and which is the better option?
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