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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:
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:
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:
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::
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.