For a worker to qualify for an unpaid internship, the following criteria described below must be applied.
The primary beneficiary test looks at the “economic reality” of the intern-employer relationship to determine which party is the relationship’s primary beneficiary — the employer or the individual.
Employers need to consider seven factors that point to the intern being the primary beneficiary of the relationship and properly classified as unpaid.
No single factor listed is determinative whether an intern or student is an employee, each relationship should be considered on the unique circumstances of each case.
Employers should carefully consider the primary beneficiary of the intern-employer relationship using the test outlined above and the work interns will be performing when considering the use of unpaid interns. If the employer benefits most from the arrangement, the individual should be treated and paid as an employee.
The more an internship is structured around a classroom or academic experience, the more likely the intern will be determined not to be entitled to pay.
If you utilize unpaid interns, have them sign a written agreement provided by the school or program acknowledging that they have no expectation of being paid.
Train student interns on the dental practice’s privacy policies and procedures. Obtain acknowledgement of training. Training documentation should include name of trainer, date of training, training subject(s), training resources and participant names. Annual training is not required but training or retraining should occur when policies and procedures change, when it is clear that policies and procedures are not being followed and after any instance of unauthorized use or disclosure of patient information.
An intern might be eligible for workers’ compensation coverage if they are unpaid, but their duties and schedule are directly controlled by you as the employer. The contract agreement with the school or program should outline responsibilities.
Because coverage for unpaid interns can vary from state to state, it’s best to check with your workers’ compensation insurer or agent.
In California, those who “volunteer” their services are generally considered a person who performs work for public service, religious or humanitarian reasons without promise, expectation or receipt of pay for that work.
The classification is determined by the party’s intent. If a person intends to volunteer their services for civic, charitable or humanitarian purposes, for a public agency or non-profit, not as an employee and without expecting pay (Cal. Labor Code sec. 1720.4). The person typically will not be considered an employee of the religious, charitable or similar nonprofit entity that receives the services.
Employers of dental practices often receive requests from minors and others who offer to “volunteer” their services to gain work experience. An individual generally cannot “volunteer” to work at a for-profit entity for no pay for the purpose of gaining experience.
If you are a for-profit entity, people who perform work for you are generally employees and you should comply with wage and hour laws, anti-discrimination laws and anti-harassment laws.
For example, employees asked to “volunteer” to represent your practice at a local event or health fair would need to be paid for time worked (including any applicable overtime), mileage and travel time to and from the event.
California’s Fair Employment and Housing Act provides protections against harassment and discrimination to unpaid interns and volunteers. Further, protection extends to religious belief protections and religious accommodation requirements to anyone in an apprenticeship training program, an unpaid internship or any other program to provide unpaid experience in the workplace or industry.