In general, anyone we hire to work for us needs to be treated as an employee, for purposes of wage and hour laws, civil rights and harassment laws, worker’s compensation, and all other terms and conditions.  If a business hires a worker to “train” or learn skills in a new position, they must still be treated as an employee for federal and state law purposes.  

The Fair Labor Standards Act (FLSA), the federal wage and hour law, has very limited guidelines for “unpaid interns and students.”  California has adopted the same test.  Here are the factors listed on the Department of Labor (DOL) website to determine if someone may work as an unpaid intern:

1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
7. The extent to which the intern and the employer understand that the internship is conducted without a paid job at the conclusion of the internship.

Given these factors, I have always counseled my clients to use unpaid interns very judiciously, limiting their use to students who are receiving academic credit and having their work monitored by that educational institution.  In the above limited situations ONLY may employers work with unpaid interns. 

Many of you have strenuously argued that your workplace offers unique opportunities to learn a craft or trade, and that often new employees onboard, stay for a while and learn valuable skills, and then leave for a competitor.   I understand the frustrations involving this scenario.   But we need to accept that employee mobility is commonplace in today’s workforce.  It does not entitle us to free labor.

I want to address a few specfic circumstances where employers attempt to have employees work for free.  The first is a time old practice in the hospitality industry called “staging,” which comes from the French term “stagiaire” or “trainee.”  The concept was even featured in my favorite series, “The Bear.”  When I googled this term, “AI” told me that “staging” is still required for many restaurant positions and it is a good way to get a “job offer.”

This is a great example of why you should not get legal advice from AI. 

Restaurants are not exempt from the above rules.  If a student in an accredited culinary program is placed in a restaurant as part of their academic study, that can be a limited exception to federal and state labor laws.  But as the DOL factors indicate, that’s it.  The practice of hiring a new cook to work in a kitchen for a week or two to “try them out” is just a flat-out labor law violation.   I know, it’s a risk to hire a new employee.  But we all take that risk.  Having them work for free is a MUCH greater risk. 

The other scenario I sometimes see is where non-profits have employees “volunteer” their time, for example, at events.  Non-profits may well make use of true volunteers from the community.  I always think of docents at the zoo.  But those docents do not otherwise work for the zoo as a paid employee.   Political campaigns make use of volunteers, but again, they also have employees who are paid staffers.   The safest practice is to keep the roles of volunteers and paid employees separate. 

Do keep in mind one last point.  Under California law, interns, contractors, and volunteers may sue for unlawful harassment and should be included in any training and provided a compliant policy.