Human Resources

Summer Work: When Is a Minor an Employee or an Intern?

It’s that time again, when employers are considering hiring minors for the summer—in camps, restaurants, resorts, swimming pools, and anywhere else business picks up in the warm weather months. There are strict laws pertaining to hiring minors.

The child labor provisions of the Fair Labor Standards Act (FLSA) prohibit employers from hiring minors (individuals under the age of 18) to work at dangerous occupations, for an excessive number of hours, and at unsuitable times of the day or night. States also have child labor laws, and when state and federal laws differ, the stricter law applies.

Child Labor Laws Are Strict and Detailed

There are separate rules for minors under 18, under 16, and under 14 years of age, both on the number of hours and times of the day and year they may work, as well as the types of work that they are allowed to perform. In addition, there are rules regarding proof of age, minors driving motor vehicles, minimum wage rates, children working in agriculture, and work under federal contracts.

Severe penalties may be imposed on employers that violate child labor laws. In addition, employers are prohibited from retaliating or otherwise discriminating against an employee who files a complaint or participates in a legal proceeding under the FLSA.

Do You Need to Pay Your Summer Employees—Or Are They Interns?

Springtime every year, employers begin thinking about hiring summer interns. And the question arises: Do we have to pay our interns? Particularly in times when employers have decreased their hiring numbers, summer interns are an attractive option at little or no pay.

Interns cost much less than new hires, and employers aren’t required to provide interns with benefits. But, the Department of Labor’s (DOL) intern test is strict and hard to pass. If you don’t pass it, your interns are actually employees—and you must pay them.

According to the DOL, if all of the following six factors are met, an employment relationship does not exist between an intern and the company that sponsors the participant. In such a case, it may be considered an unpaid internship when:

  1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training that would be given in an educational environment;
  2. The internship experience is for the benefit of the intern;
  3. The intern does not displace regular employees but works under close supervision of existing staff;
  4. The employer that provides the training derives no immediate advantage from the activities of the intern, and on occasion, its operations may actually be impeded;
  5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
  6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

 

If no employment relationship exists, the participants are not subject to the FLSA, and no intern pay is due.

In tomorrow’s Advisor, we’ll present 10 tips to remember when hiring minors this summer.

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