Who is a volunteer?
Under NY Labor Law:
Can I pay my volunteers a small sum?
Dangers of compensating volunteers:
Factors to Consider
Err on the side of CAUTION!
Design programs with the interns’ benefits in mind (who is the primary beneficiary?)
Structure the program around the academic experience of the interns (recommend coordinating the program with an educational institution so interns get school credit)
Provide close supervision and mentoring
Do not use interns to displace your workforce or avoid overtime during busy periods
Courts and legislatures have increasingly addressed the issue of unpaid internships over the last few years
It is critical that employers with internship programs do not treat interns as “free labor” who displace regular employees
Interns not covered by minimum wage laws
Based on the Walling v. Portland Terminal Co., 330 U.S. 148 (1947) decision, the Federal Department of Labor developed a six-factor test to determine whether an individual is a bona fide intern or an employee:
State law must also be taken into account
The New York State Department of Labor uses an eleven-factor test for evaluating intern classifications under the state’s Minimum Wage Act and Wage Orders. Many of the factors are similar to those under the Federal DOL test, while others are different…
Factors Similar to the Federal DOL Test:
Factors Specific to New York State’s DOL Test:
IMPORTANT NOTE ABOUT STUDENT INTERNS AT NOT-FOR-PROFITS: New York law, sets out a lower standard for nonprofits’ student interns. That being said, the safest course of action is following the 11-factor test. (https://labor.ny.gov/formsdocs/factsheets/pdfs/p726.pdf)
The City and State of New York recently passed amendments to their respective Human Rights Laws, extending their protections to paid and unpaid interns. Interns (paid and unpaid) are protected from discrimination and harassment based on protected characteristics (e.g., race, gender, religion, etc.)
Clearly articulate the interns’ duties
Make clear that the internship is not paid
Do not create an impression that the program will lead to a job
And when in doubt, pay your interns minimum wage!
NY Minimum Wage = $9.00/hour (but set to rise!)
Approximately $3,600 for a 10-week program
Serving in the Federal District Courts, Second Circuit Court of Appeals, New York Supreme Courts in Manhattan, the Bronx, Brooklyn, Queens, Nassau, Westchester, Broome and Onondaga Counties, as well as the Appellate Division First, Second, Third, & Fourth Departments for Complex Litigation, Appeals, & Negotiation.
We are available to meet in Manhattan and Syracuse, New York. If you would like to meet outside of these areas, please contact us and we can arrange for a meeting place to discuss your matter.
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