The Legal Status of Farm Interns: Labor and Law

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The legal status of interns on the farm is a two part question that combines federal and state law.

Jason Foscolo, an Agriculture Lawyer who works extensively with small sustainable farmers explains the legal aspects of farm internships under both federal and state laws, and the difference between the two:

The Fair Labor Standards Act is the federal law that guarantees a minimum wage for employees. The Act states that employment is defined as any activity conducted by a person who is “suffered or permitted to work”, and anyone who fits the definition is entitled to receive the federal minimum wage. “Suffer or permit to work” is a broad definition of labor, and it includes almost any imaginable activity that is not specifically exempt by another federal law or regulation.

There is just such an exemption for what we would call “interns” and apprentices. The term “suffer or permit to work” cannot be applied to a person whose work serves only his or her own interest as an employee of another who provides aid or instruction. This means interns, who work in exchange for training and education. Under federal labor law, the following criteria are used to determine whether an employee is or is not an intern exempt from minimum wage:

Under federal labor law, the following criteria are used to determine whether an employee is or is not an intern:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which 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 the conditions of work qualify for each of these criteria, the work is what we would call an internship, and is therefore exempt from federal minimum wage rules.

It is important to note that these criteria only apply towards compliance with federal law. States may have their own definitions of minimum wage, internships, and what it means to be employed. Because of the way our federalism works, however, states cannot mandate definitions of these terms that guarantee protection lower than those afforded by federal law. For example, a state may have a higher minimum wage than the federal level, but not one that is lower. A state may also require that employees fitting the description of “intern” receive a minimum wage, even though they qualify for the federal minimum wage exemption under the federal internship criteria.

Washington is an example of just such a state, which mandates pay for interns that would otherwise qualify as exempt under federal rules. The state construes the term “suffer or permit to work” more broadly than the federal government, and interns are not specifically exempted from the minimum wage law. The state did have a pilot program in which farms could utilize unpaid interns, but the law allowing for it recently expired and was not renewed.

On the other hand, California is an example of a state that adheres fairly closely to the federal guidelines for determining exemption to minimum wage.

In sum, internships are a very local issue. Though a typical farm intern is likely exempt from federal minimum wage laws, as an employer you still need to check with your state to see if you get a pass there too. The information should be easy to come by on your state’s department of labor webpage, or you can give them a call and find out from them if you are still uncertain.

If you wish to speak with Jason directly regarding internships or other legal issues pertaining to your farm, his website is www.jasonfoscolo.com; you can e-mail him at jason@jasonfoscolo.com, or call him at (479) 799 – 7035.