Adult Internships

Applicable Test

The Wage and Hour Division of the United States Department of Labor (“DOL”) and the federal courts analyze the question of whether an intern is an “employee” for purposes of the Fair Labor Standards Act against the backdrop of a six-factor test which reads as follows:

• Whether the training is similar to that which would be given in a vocational school;
• Whether the training is primarily for the benefit of the intern;
• Whether the intern does not displace regular employees, but instead works under their close observation;
• Whether the company derives immediate advantages from the activities of the intern, and whether on occasion its operations might actually be impeded;
• Whether the intern is necessarily entitled to a job at the conclusion of the training period; and
• Whether the company and the interns understand that the interns are not entitled to wages for the time spent in training.

Although the DOL has taken the position that all six of the above criteria must be met for an individual to be considered a trainee, at least one court has concluded that the determination should be based upon the “totality of the circumstances” even if all six factors are not satisfied. Given the DOL's position on the matter, it would be prudent to strive for compliance with all six criteria if at all possible.