Recent stories in the news have described the campaign to stop employers from violating the federal Fair Labor Standards Act (FLSA) by classifying people as interns while having them do the work of regular employees without compensation. The campaign may be having some effect as a class action lawsuit has been filed in federal court in New York against Donna Karan International regarding company interns who are performing non-intern related work without receiving the minimum wage. As reported in The Huffington Post, one plaintiff, who was an under grad, claims that he was told that interning for the company would be great learning experience; instead, he retrieved coffee, answered phones, entered data, and put clothes away.
Pursuant to the FLSA and as stated by the United States Department of Labor, for an employer to classify a position as an internship, the intern program must meet the following criteria:
- 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.
- The internship experience is for the benefit of the intern.
- The intern does not displace regular employees, but works under close supervision of existing staff.
- 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.
- The intern is not necessarily entitled to a job at the conclusion of the internship.
- The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
Additional violations that may break federal and New York State overtime regulations include
- Misclassification of job position as exempt from overtime
- Failure to pay due to lack of permission to work overtime
- Averaging hours over two work weeks
- Failure to pay for at-home work, on-call time, or short daytime breaks
- Comp time instead of overtime pay
- Off-the-clock work
Both the FLSA and New York law have set the minimum wage at $7.25 per hour since 2009. Under New York and Federal minimum wage regulations, certain occupations and employees, such as food service employees, are paid a different minimum wage because the employees’ total compensation includes tips. If you believe that your employer is violating your right to receive minimum wage or overtime compensation, you consult an attorney and protect your rights.
