On December 21, 2010, the NYSDOL issued an opinion letter on whether internships (including summer internships) may qualify for an exception to the minimum wage law. To determine whether interns are exempt from the minimum wage law, the NYSDOL uses the six-factor test relied upon by the U.S. Department of Labor, and adds five additional factors. Thus, in order to be exempt from New York’s minimum wage laws, an internship must satisfy all of the following 11 factors:
- The training, even though it includes actual operation of the facilities of the employer, is similar to training that would be given in an educational environment.
- The training is for the benefit of the intern.
- The interns do not displace regular employees and any work they may do is under close supervision.
- The employer who provides the training derives no immediate advantage from the activities of the trainees or students and, on occasion, operations may actually be impeded.
- The trainees or students are not necessarily entitled to a job at the conclusion of the training period and are free to take employment elsewhere in the same field.
- The trainees or students have been notified, in writing, that they will not receive any wages for such training and are not considered employees for minimum wage purposes.
- Any clinical training is performed under the supervision and direction of individuals knowledgeable and experienced in the activities being performed.
- The trainees or students do not receive employee benefits.
- The training is general, so as to qualify the trainees or students to work in any similar business, rather than designed specifically for a job with the employer offering the program.
- The screening process for the internship is not the same as for employment, and does not appear to be for that purpose, but involves only criteria relevant for admission to an independent educational program.
- Advertisements for the program are couched clearly in terms of education or training, rather than employment, although employers may indicate that qualified graduates may be considered for employment.
For more information on these 11 factors and how employers can ensure that their internship programs are exempt from minimum wage requirements, see EpsteinBeckerGreen’s Act Now Advisory entitled “New York State Department of Labor Issues Opinion Letter on Internships.”