As we begin this summer season, so too do we begin the season of summer interns. While bringing on summer interns can provide a wide array of benefits to a company, employers must be careful to create a legally compliant internship program in order to avoid any risk of liability. Below we have provided a non-exhaustive list of frequently asked questions and answers related to summer internship programs utilized by for-profit, private employers.

Question: Are employers required to pay summer interns?

Answer: Interns will often be classified as employees under the Fair Labor Standards Act (FLSA) and are entitled to the same wage and hour protections as other employees. As such, it is important that employers communicate all applicable wage and hour related policies to paid interns, including those policies regarding time keeping and overtime work.

While most interns will qualify as employees under the FLSA, internship programs that work to primarily benefit the intern, rather than the employer, can qualify for an exclusion to the FLSA’s minimum wage and overtime provisions. To qualify for this exclusion, employers will need to carefully structure their internship program to avoid liability. Specifically, employers who wish to utilize unpaid interns should do the following:

• Make clear that there is no express or implied promise of compensation.
• Provide training throughout the internship, including clinical and other hands-on training.
• Ensure that the internship is tied to the intern’s formal education program through integrated coursework or academic credit.
• Provide the intern with work that complements, rather than displaces, the work of paid employees.
• Make clear that the internship does not provide entitlement to a paid position at the conclusion of the program.

Q: Do employers need to provide interns with employee benefits, including paid time off and health care?

A: In most states, there are no laws requiring that an employer provide employees or interns with paid time off or any other benefit, with the exclusion of health care. As it relates to health care benefits, the Affordable Care Act requires that large employers (those with 50 or more full-time employees) provide paid interns who work more than 30 hours per week, the opportunity to enroll in health insurance no later than their 90th day of employment. Employers wishing to avoid this requirement should ensure that the duration of any paid internship is less than 90 days long. Importantly, interns should be informed in writing at the onset of their internship which benefits they may or may not be entitled to.

Q: Are employers allowed to hire foreign national or undocumented workers or students as interns?

A: When determining eligibility requirements for a summer internship program, it is important to keep in mind state and federal immigration laws as they pertain to foreign nationals and undocumented workers or students. While there are various student and trainee visas that foreign national or undocumented workers or students may obtain, there are various eligibility requirements an employer must abide by. It is important that employers carefully review the eligibility requirements related to F-1 visas for foreign individuals enrolled in full-time study programs in the U.S., H-3 visas for foreign individuals receiving training that is unavailable in the trainee’s home country, J-1 visas for foreign students seeking work in the U.S. for a short period of time, and M-1 visas for foreign students enrolled in full-time vocational or nonacademic program studies in the U.S., prior to hiring foreign national or undocumented workers or students as interns.

Q: Are there any additional considerations when hiring interns under the age of 18?

A: Whether the individual you are hiring is a high school student or just a scholastic prodigy, if they are under the age of 18, there are additional laws and regulations that employers should be aware of. Both federal and state laws restrict the time of day and number of hours that minors can work, the type of work minors can perform, and the equipment that they can use.

There is no limitation on the amount of hours individuals aged 16 and 17 can work, except when the internship occurs during a school term. However, individuals in this age group are not permitted to work in occupations — or perform certain work-related tasks — that are deemed hazardous by the Secretary of Labor. Employers who are considering hiring interns under the age of 18 should review all relevant state and federal laws in order to avoid any potential liability.

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