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Am I an Intern or an Employee?

Am I an Intern or an Employee?

Most state and federal labor laws only apply to paid employees. A few also apply to independent contractors, especially in the gig economy age. However, almost none of them apply to unpaid interns. When employers exploit these individuals, they often have little or no recourse. Fortunately, employers do not have the final say as to what workers are interns. That ability falls to the Department of Labor, mostly thanks to Fact Sheet 71

This document is rather vague. It gives general categories that separate employees from interns but offers little in the way of specifics. This fact sheet breaks down the “primary beneficiary” test. In general, if the primary beneficiary in the relationship is the employer, the worker is an employee.

So, as a precursor to a sexual harassment or other claim, a Chicago employment lawyer must often clarify the plaintiff’s status. Intern/employee disputes are also standalone matters, mostly with regard to unpaid wages.

Expectation of Compensation

Interns are unpaid. If there is any promise of compensation, no matter how subtle, the worker is probably not an intern. This factor is closely tied to the no promise of future employment factor, which is outlined below.

Educational Credit

Most internships are affiliated with academic programs. If the relationship is especially close, the worker is probably an intern. This closeness must be more than a subject matter relationship (e.g., a fashion design student working in a fashion design studio). At a minimum, the interns must receive hours of credit for their service. If a school official sets up the internship, employers have a better argument.

Educational Similarity

Most internships fail this test. Generally, most academic classes include both lectures and clinical-style learning. Typically, internships are all clinical-style learning and no lecture. Qualifying internships include lunchtime lectures or, at a minimum, sitting in on high-level business meetings. Employers almost never sponsor or allow such activities because they cost money.

Schedule Geared to Learning

Does the intern’s schedule benefit the intern or the employer? Everyone must work some nights and weekends, but little learning occurs during these times. On a related note, many employers assign interns their own work areas, and they hardly ever leave such areas. There is a limited amount of information people can learn in the copy room.

Relationship to Academic Calendar

Does the internship last for a semester, or does it extend indefinitely? Nearly all university classes are one-semester classes. If the internship extends beyond the end of a related class, there is probably little or no relationship.

No Displacement of Paid Employees

This factor is another big one. Interns are there to learn, and not to take the place of paid workers. Many interns have substantially the same job descriptions as low-level paid employees. A few field trips or other such interruptions do not change this fundamental fact. If that is the case, the “intern” is almost always an employee.

No Expectation of Paid Employment

Unpaid internships are not unpaid job interviews. Much like the promise of compensation, if there is any hint of a guaranteed job, the internship is probably a job interview.

Contact an Experienced Lawyer

Most interns are actually employees who are entitled to significant financial benefits. For a free consultation with an experienced Chicago employment lawyer, contact the Law Office of Mitchell A. Kline. We routinely handle matters in Cook County and nearby jurisdictions.

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