Unpaid Intern or Employee? The FLSA Internship Test and Back Pay

Interns Can Be Employees

The minimum wage rule at 29 U.S.C. 206 and the overtime rule apply to employees. The Department of Labor's Fact Sheet #71 on internship programs explains that a person who is really an employee must be paid, whatever the title. Interns at nonprofits and government bodies are treated differently in some cases, so the type of employer can matter.

The Primary Beneficiary Test

The Department of Labor uses a primary beneficiary test: who benefits more from the relationship, you or the employer? It looks at seven factors, and no single factor decides the outcome.

• Expectation of pay

  Whether you and the employer understood the position was unpaid.

• Training

  Whether you received training similar to what an educational program provides.

• Academic connection

  Whether the internship is tied to your formal education, such as school credit.

• School calendar

  Whether the schedule fits your academic commitments.

• Limited duration

  Whether the internship lasts only as long as it gives you useful learning.

• Complement, not replace

  Whether your work adds to the work of paid employees instead of displacing them.

• No job entitlement

  Whether you understand the internship does not guarantee a job at the end.

Warning signs include doing tasks regular staff would otherwise do, working full-time hours with no teaching, and being asked to cover the front desk or run errands that have no learning value. School credit alone does not make unpaid work lawful.

What Back Pay Can Include

Under 29 U.S.C. 216, an employee who was not paid minimum wage or overtime can recover the unpaid amount plus an equal amount as liquidated damages, along with attorney's fees and costs, unless the employer shows it acted in good faith. For hours worked that were never counted, see which unpaid time counts as hours worked and when you are owed overtime.

The Time Limit

Under 29 U.S.C. 255, an FLSA claim generally must be brought within 2 years of the missed payment, or 3 years if the violation was willful. Each pay period is counted separately, so waiting can mean losing the older weeks. Some states give longer periods or stronger remedies.

What to Save

• The offer

  The posting, email or agreement describing the role, the pay and any school credit.

• Your hours

  A log, calendar entries, badge records or messages showing when you worked.

• Your tasks

  Examples of the work you did and who assigned it.

• Training

  Any evidence of what you were taught, or that you were taught nothing.

• Comparisons

  Paid staff who did the same work, as far as you know.

Keep copies somewhere you control, and note dates while they are fresh.

Free Case Review

Whether an internship was lawful depends on the facts and sometimes your state. A review of your hours and duties can show what may be owed and how much time is left. Our team can look at your situation at no cost, if you are eligible.