Fair Labor Standards Act (FLSA)
Employers/Organizations must be aware of and ensure compliance with the Fair Labor Standards Act (FLSA), before classifying a student intern as an unpaid "trainee." If a student intern is considered an "employee" for purposes of the FLSA, then the employer must pay its student interns at least the minimum wage. The Department of Labor's Wage and Hour Division developed a six-factor test for determining whether workers are considered "trainees" under the FLSA:
Under the Department of Labor’s Fair Labor Standards Act, six criteria have been instituted to define an unpaid intern. They are as follows:
The training, even though it includes actual operations of the facilities of the employers, is similar to that which would be given in a vocational school.
The training is for the benefit of the student.
The student does not displace a regular employee, but works under the close observation of a regular employee or supervisor.
The employer provides the training and derives no immediate advantage from the activities of the student; and on occasion, the operations may actually be impeded by the training.
The student is not necessarily entitled to a job at the conclusion of the training period.
The employer and the student understand that the student is not entitled to wages for the time spent training.
For more information, please go to the Department of Labor website and review the Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act
The following topics are provided as guidelines or applicable laws for Employers/Organizations who desire to utilize students in internships.
Any disclosure of internship/intern information is prohibited without the intern’s express written consent. FERPA laws may be applicable.
All student interns must be covered by an Employer/Organization’s Workers’ Compensation insurance when the student intern is defined as a “subject worker” by Oregon Workers’ Compensation Law. A “subject worker” includes any worker for an Employer/Organization where an exchange of “remuneration for services” occurs. Remuneration is not explicitly defined; however, it may include lodging, stipends, gifts, etc. If student interns do not meet the definition of a “subject worker”, the Employer/Organization may be able to add the student intern to its Workers’ Compensation Insurance coverage by contacting their insurance agent or carrier. Oregon State University (OSU) only provides Workers’ Compensation insurance coverage for student interns defined as OSU “subject workers” while performing duties for OSU. OSU does not provide Workers’ Compensation insurance coverage for student interns performing duties to non-OSU Employers/Organizations.
Equal Opportunity and Non-Discrimination
Internship Employers/Organizations must subscribe to EEOC guidelines established by Federal and Oregon state law. Employers/Organizations cannot unlawfully discriminate in the selection of student interns on the basis of race, color, national origin, gender, disability, sexual orientation, religion or veteran status.
Other Employment Related Laws
Employers/Organizations must adhere to all other employment related laws for student interns who perform employment related tasks including, but not limited to, acts of sexual harassment.
Occupational Safety & Health Administration (OSHA)
All Employers/Organizations shall maintain a safe working environment for student interns. This includes complying with all OSHA rules and providing an initial safety orientation, any precautionary safety instructions, training, and ongoing supervision for assigned duties. An experienced professional who has expertise in the content area of the internship shall be assigned to supervise the student intern throughout the internship and shall be available to the student intern in the event of any employment related accidents.
Hold Harmless or Indemnity Agreements
Because of the concern over liability during student internships, some Employers/Organizations may require Oregon State University and/or the student intern to sign a hold-harmless or indemnity agreement. Student interns are PROHIBITED from signing an Employer/Organization’s hold-harmless or indemnity agreement on behalf of Oregon State University. If an Employer/Organization desires to enter into an on-going internship arrangement, all agreements between the Employer/Organization must be signed by one of the 16 authorized signators for Oregon State University through the Procurement and Contract Services Office.
In some cases, Employers/Organizations have asked students to sign a release of liability as a condition to accepting an internship. Student interns are recommended to NOT sign personal hold-harmless or indemnity agreements that assume liability as a condition to accepting an internship.
Principles for Professional Conduct – Hold Harmless Agreements