DOL Fact Sheet #71 Clarifies When Interns Must Be Paid Under FLSA

The U.S. Department of Labor’s Fact Sheet #71 lays out how to decide whether interns and students working for for-profit employers must receive minimum wage and overtime under the Fair Labor Standards Act.

The fact sheet begins with a plain framing: "This fact sheet provides general information to help determine whether interns and students working for 'for-profit' employers are entitled to minimum wages and overtime pay under the Fair Labor Standards Act (FLSA)." It reiterates a basic legal point: "The FLSA requires 'for-profit' employers to pay employees for their work. Interns and students, however, may not be 'employees' under the FLSA, in which case the FLSA does not require compensation for their work." The document also recalls the statute’s broad definition of employment, noting that "The FLSA defines the term 'employ' very broadly as including to 'suffer or permit to work.'"

The materials in circulation include two dated presentations of the guidance. A version labeled April 2010 sets out a six-criteria trainee test. That text lists the factors that must be applied when determining whether an internship is unpaid: "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; and" "The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship." The 2010 language is explicit: "If all of the factors listed above are met, an employment relationship does not exist under the FLSA, and the Act’s minimum wage and overtime provisions do not apply to the intern."

A set of reposts labeled Updated January 2018 presents a different framing: courts have used the "primary beneficiary test" as a flexible balancing inquiry. The supplied 2018 excerpts include several of the test’s factors: "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;" "The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit;" "The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar;" "The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning;" "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;" and "The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship." The supplied 2018 excerpts omit factor number 1 in the list; one repost also contains a truncated sentence about exemptions for volunteers: "1 The FLSA exempts certain people who volunteer to perform services for a state or [...] to either minimum wage or overtime pay under the FLSA."

For workers and workplace managers the practical takeaway is straightforward: whether an intern must be paid depends on a fact-specific analysis. The 2010 text emphasizes that unpaid status is narrow; the 2018 framing signals that courts will weigh who is the primary beneficiary. Employers running internships should review the criteria and balance training against productive work. Interns who believe they are performing employee work may have a wage claim.

The fact sheet stresses limits on its authority: "This publication is for general information and is not a regulation." For additional information contact the Wage and Hour Division by calling 1-866-4USWAGE (1-866-487-9243), TTY 1-866-487-9243, available 8 a.m. to 5 p.m. in your time zone, or consult the Wage and Hour Division materials at the Department of Labor’s offices at Frances Perkins Building, 200 Constitution Avenue NW, Washington, DC 20210.

What this means going forward: employers should audit internship programs against the DOL factors and document the educational purpose of placements, and interns should confirm whether a program meets unpaid-internship criteria or whether they are entitled to pay and overtime under the FLSA.