This is the time of year we start talking with our clients about their summer hiring needs.
Often, they will mention bringing in “summer interns.” See what our HR experts have to say about the commonly asked question, “Do we need to pay summer interns?”
Generally, yes, though it depends on who benefits most from their work
The U.S. Department of Labor (DOL) has adopted the “primary beneficiary test” to determine whether a worker is an employee (who must be paid in accordance with federal wage and hour law) or can be classified as an unpaid intern (a non-employee who is exempt from federal wage and hour law). If the worker is the primary beneficiary of the arrangement—as opposed to the employer—they can be classified as an unpaid intern. If the employer is the primary beneficiary, the worker must be classified as an employee and must be paid minimum wage and overtime under the Fair Labor Standards Act.
To determine who the primary beneficiary is, consider the extent to which:
According to the DOL, the test is flexible, and no single factor will necessarily tip the scales. However, as a practical matter, if having summer interns saves your company money or the interns don’t receive some kind of academic credit, you should think very hard about classifying them as non-employees.
If you’re not sure whether the worker should be classified as an unpaid intern or a paid employee, the safer option would be to classify them as an employee. Misclassification can be costly. And as is always the case, you should check state law for any additional requirements.
This Q&A does not constitute legal advice and does not address state or local law.