Government employers, who often allow unpaid interns earning college credit into their workforce, will be happy to know that the exception to not treat them as employees remains intact. It was threatened when an intern, citing the Fair Labor Standards Act (FLSA), sued the Miami-Dade County Medical Examiner’s office. In McKay v. Miami-Dade County (11th Cir., 2022), the intern argued that the volunteer exception enacted by Congress for public employers superseded the Supreme Court’s decision to distinguish interns who earn college credit from employees. The argument was that the only way a government employer could have an unpaid worker was if they were a volunteer.
The Eleventh Circuit Court of Appeals was divided in its June 9, 2022, opinion, but all judges on the panel used the Supreme Court test to determine if the individual was an intern and thus could be unpaid. That test looks at who primarily benefited from the relationship between the employer and the intern. Most often, an intern is not an employee because they benefit by receiving college credit and do not displace current employees. Internships are commonly unpaid, and those who have gone to court to prove they were employees have, in the vast majority, been unsuccessful. Internships have been and continue to be a valid program for government agencies, including counties and municipalities.
What the Medical Examiner was doing was different. It set up a six-month program to rival universities offering college degrees in forensics. Interns in this program agreed to work for free and on the weekends. Additionally, interns were unsupervised and, for at least a month, displaced paid employees. The dissenting judge explained that he would have paid the intern for the month the Medical Examiner did not pay anyone to do the work and would have sent it to the trial court to determine if during the other four months the intern worked, an employee was displaced. If counties, municipalities, or districts set up programs – a common one is training to be a firefighter – they should ensure that interns are supervised and do not displace current employees.
If you have questions about a training program you are offering, Employers Council can help. Contact us at info@employerscouncil.org.
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