Wage Requirements for New York Interns

By: Shawn Watro

Internships offer exposure that the interns hope will open doors to them in the future, but they come at a cost, many interns work without receiving any compensation.  Interns can go from one dead end internship to another to another without ever getting the opportunity to work even part-time for a company.[1]  It can often be hard to break out of a cycle of the internships and find a traditional career.[2]

New York has rules for pay and overtime for all working positions stated in the New York State Minimum Wage Act and Wage Orders.[3]  They offer guidelines for a company to follow in order to determine if a for-profit business has interns that need to be paid according to minimum wage and overtime rules.[4]  New York has stated that “[i]n general, an intern is only exempt from the requirements of the Minimum Wage Act and Orders if the intern is not in an employment relationship.”[5]

In order for an employment relationship to not exist, there are eleven criteria that all need to be met, first, the training of the intern, even though it may include actual operation within the employer’s facilities, is more similar to training that would be provided for by an educational program.[6]  Second, the training must be to the benefit of the intern where the intern is the primary beneficiary of the training and “[a]ny benefit to the employer must be merely incidental.”[7]  Third, the position and work that the internship is providing to the intern within the company must not displace regular employees, and the work must be done under close supervision.[8]  New York suggests “if interns receive the same level of supervision as the employer’s regular workers, it suggests an employment relationship, rather than training.

Interns are considered employees if they substitute for regular workers or add to an existing workforce during specific time periods.”[9]

Fourth, the activities that the intern engages in “do not provide an immediate advantage to the employer.  On occasion, operations may actually be impeded.”[10]  Fifth, the interns are not necessarily entitled to a job at the conclusion of the training period and are free to take jobs in the same field at another employer.[11]  Sixth, the interns must be notified in writing that they will not be receiving any wages and are not going to be considered employees for minimum wage purposes.[12]  Next, the training that is being performed by the intern must be under the supervision and direction of other people who are knowledgeable and experienced in the activity.[13]  Eighth, the interns cannot receive employee benefits from the company.[14]

Ninth, the training that the intern receives needs to be general and will enable the intern to work in any similar business, and the training cannot be designed for a job with the employer that offers the program.[15]  Tenth, the screening process used to hire interns cannot be the same as is used for regular employment at the company.[16]  And finally, “Advertisements, postings, or solicitations for the program clearly discuss education or training, rather than employment, although employers may indicate that qualified graduates may be considered for employment.”[17]

As stated above, the employer who is seeking to hire an intern and not pay the intern any wages needs to follow all of these requirements.  It can be difficult to find an internship that necessarily follows every single one of these guidelines, however, most interns would most likely not be aware of these guidelines and further they would not be in a position to argue them even if they were aware of them.  This can help to create a system that exploits the work of interns to the benefit of the employer without properly paying interns for the work.

[1] Alex Williams, For Interns, All Work and No Payoff: Millennials Feel Trapped in a Cycle of Internships With Little Pay and No Job Offers, New York Times, Feb. 14, 2014.

[2] See id.

[3] Wage Requirements for Interns in For-Profit Businesses: Fact Sheet, New York State Department of Labor, available at http://www.labor.ny.gov/formsdocs/factsheets/pdfs/p725.pdf.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.


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