Question

We are about to hire some people for the summer. Can you clarify the differences between volunteers, interns and trainees?

Answer

There are significant differences and understanding them is crucial for employers due to potential financial and legal consequences.

First, determine the type of position the individual will hold. The following legal definitions are helpful:

Volunteers

According to the federal Fair Labor Standards Act (FLSA), a volunteer must meet specific conditions to be properly classified as such:

• Volunteers donate their services, usually on a part-time basis, for public service, religious, or humanitarian objectives.
• They are not considered employees of the organizations they serve.
• Volunteers do not receive compensation and are not working with the expectation of pay.
• This applies to religious, charitable, or similar non-profit organizations.

Under the FLSA, employees may not volunteer services for for-profit, private-sector employers. Individuals may, however, volunteer for public-sector employers.

Massachusetts has its own criteria for classifying volunteers under state law, evaluated by the Department of Labor Standards:

1. The nature of the entity receiving the services;
2. The receipt by the worker of any benefits, or expectation of any benefits, from their work;
3. Whether the activity is less than a full-time occupation;
4. Whether regular employees are displaced by the “volunteer”;
5. Whether the services are offered freely without pressure or coercion;
6. Whether the services are of the kind typically associated with volunteer work.

Interns

Courts use the “primary beneficiary test” to determine whether an intern or student is an employee under the FLSA. The main question is who benefits more from the relationship. The following seven factors are part of this test:

1. Expectation of Compensation: No expectation of compensation means the intern is likely not an employee. Any promise of pay suggests otherwise.
2. Educational Training: The internship should provide training similar to an educational setting.
3. Formal Education Connection: The internship should be part of the intern’s formal education through coursework or academic credit.
4. Academic Calendar Accommodation: The internship should fit the intern’s academic schedule.
5. Duration of Internship: The internship should last only as long as it provides learning benefits.
6. Complementary Work: The intern’s work should complement, not replace, the work of paid employees, providing educational benefits.
7. No Job Entitlement: Both parties should understand there is no promise of a paid job after the internship.

The “primary beneficiary test” is flexible, with no single factor being decisive. The Massachusetts Department of Labor Standards uses the same seven-factor test to determine whether an intern is paid or unpaid.

Trainees

Trainees or students are not considered employees under the FLSA if all the following criteria apply::

1. The training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in a vocational school;
2. The training is for the benefit of the trainees or students;
3. The trainees or students do not displace regular employees, but work under close supervision;
4. The employer that provides the training receives no immediate advantage from the activities of the trainees or students and, on occasion, company operations may even be impeded;
5. The trainees or students are not necessarily entitled to a job at the conclusion of the training period; and
6. The employer and the trainees or students understand that the trainees or students are not entitled to wages for the time spent in training.

For more information on the trainee classification, refer to the guidelines. If trainees or students are deemed employees and are under 18, they may be covered by Massachusetts child labor laws.

Employers then need to classify the person they are bringing into the workplace and decide whether the person must be paid or is there for the experience. Paid interns must receive at least minimum wage and overtime if applicable.

Massachusetts workers’ compensation law covers students in work-based experiences as part of a school-to-work program if they receive compensable work. A “school-to-work program” is a workplace-based education and training program designed to improve high school students’ knowledge and skills by integrating academic, and occupational learning, preparing them for employment and increasing post-secondary education opportunities.

Finally, employers must document the reasoning for classifying an individual as a volunteer, intern, or trainee.

For questions about OSHA inspections or any other HR matter, AIM members may call the AIM HR Helpline at 800-470-6277.

For in-depth FLSA questions or to schedule an FLSA audit, contact HRinfo@AIMHRSolutions.com.