Question: I need to hire some extra help this summer and was planning on hiring high school students. Since they are students, can I hire them as unpaid interns?
Answer: Although using unpaid interns was once a very attractive option for limiting labor costs, changes in the law make it difficult for employers to lawfully hire individuals as unpaid interns. According to the federal U.S. Department of Labor, private sector “interns” are usually considered “employees,” and therefore subject to the minimum wage, overtime, and accompanying protections, unless the individual and the position meet the following six criteria:
The training provided must be similar to that which would be given in a vocational school and provide educational experiences that are not typically available in the classroom. A person working in an internship through a school program is more likely to be properly classified as an intern.
The training must be for the benefit of the interns. The main objective of the internship program should be the practical application of what the intern has learned in the classroom to enhance his or her marketability in the vocational area. Work that does not apply the individual’s education but just helps the business, like filing, does not meet this criterion.
Interns must be closely supervised, not displace regular employees, and must not perform work that can be performed by regular employees. The business should receive no immediate advantage from the activities of the interns.
An intern cannot necessarily be entitled to a job at the conclusion of the internship, and businesses should have interns acknowledge this in writing.
When properly classified, interns are not entitled to wages for the time spent in training. A business can pay an intern a stipend to cover living expenses, but the amount of the stipend must not exceed the reasonable expenses incurred by the intern.
If all six factors are met, the intern is not considered an “employee” and is not entitled to minimum wages and overtime compensation under federal law. The California Division of Labor Standards Enforcement also applies a similar six-factor test.
In addition, except under limited circumstances, California child labor laws require youth under 18 years old to have a work permit, which is usually issued by the minor’s school. During the summer and when school is not in session, the permit is obtained from the superintendent of the school district where the minor resides. Typically, after an employer agrees to hire a minor, the minor obtains a Department of Education form entitled “Statement of Intent to Employ Minor and Request for Work Permit” from his or her school. The form must be completed by the minor and the employer and signed by the minor’s parent or guardian and the employer. After returning the completed and signed form to the school, school officials may issue the permit to employ and work. Minors are also subject to certain working hours limitations depending on their age. During the summer, 14 and 15-year-olds can work up to 8 hours per day/40 hours per week, and work shifts until 9:00 p.m. from June 1 to Labor Day; 16 and 17-year-olds can work up to 8 hours a day/48 hours a week, and can work as late as 12:30 a.m. When school is back in session, minors cannot work as many hours.