Wineries and various for-profit businesses often hire interns or solicit the help of volunteers for certain aspects of their business operations as a way to minimize costs and provide opportunities to unemployed individuals. Recently, however, a question has arisen as to whether these individuals are legally considered employees. Unless the relationship falls within the below-listed six-factor test, an “intern” or “volunteer” who works without pay for the purpose of gaining work experience is an employee.
According to the Department of Labor, in order for an “intern” or “volunteer” to be considered an unpaid worker, six factors must be established: (1) the training is similar to vocational school, (2) the training is for the benefit of the trainee, (3) the trainee is not replacing normal employees and works under supervision, (4) the sponsor of the trainee does not derive any immediate benefit from the trainee, (5) the trainee is not entitled to a job after completion of training, and (6) the sponsor and the trainee understand that the trainee is not entitled to wages .
In regards to (3), the Department of Labor Standards Enforcement (“DLSE”) considers the actual role of the “intern” or “volunteer” to be one which necessarily requires close supervision, offsetting any advantage perceived to be received by the employer.
A simple way to address some of these issues is with a written agreement, signed by the “intern” or “volunteer,” that makes it clear that the individual, among other things, will not receive benefits or wages and that the training received will be for the educational benefit of the intern, who will be closely supervised by an employee. If the tasks that the “intern” or “volunteer” are to perform would otherwise be performed by an employee, an employer should consider hiring and paying the individual for risk mitigation purposes.
For more information, please contact one of GVM’s Labor and Employment law specialists.