As an employee, the rights that you are entitled to depend heavily on what type of employee you are. Different classifications of workers are entitled to different things. It is important to know what type of worker you are so that you can best understand and protect your rights. To figure out what type of worker you are, see below and find out what rights you are entitled to.
Technically no. Many internships are advertised as just that, internships. However, once a candidate accepts the position, he or she may be given an independent contractor agreement, as opposed to an intern agreement. According to the Internal Revenue Service (IRS), an independent contractor is someone who is self-employed and whose services are not controlled by the payer. Self-employed means that for purposes of taxation, you are subject to self-employment tax and income tax. Control of services relates to who determines what will be done and how it will be done. If you direct or control day-to-day tasks or assignments and how those tasks or assignments are completed, you have control for purposes of worker classification.
An intern, on the other hand, is not subject to self-employment tax, and generally is assigned tasks by the employer with specific instructions on how it should be completed. Here, there is more guidance and training involved, which is distinctly different from the role of independent contractor.
To learn more about independent contractors, please visit our Independent Contractors page.
It depends. A volunteer is someone who volunteers their time for “civic, charitable, or humanitarian reasons” without the promise or expectation of compensation. Volunteers may, however, be reimbursed for reasonable expenses.
An unpaid intern, according to the Department of Labor (DOL), is someone who satisfies the Fair Labor Standard Act’s (FLSA) seven factor “primary beneficiary” test. The factors include:
- 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.
- 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.
- 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.
As you can see, an intern receives more than just the satisfaction of helping others. An intern also likely sought the opportunity for the purpose of learning and gaining experience, rather than to solely provide charity.
Stipends, which are typically paid to an individual to help cover housing and other living expenses, may only be paid to non-employees. Conversely, a wage may only be paid to employees.
If your internship or fellowship satisfies the “primary beneficiary” test by primarily benefiting you, rather than the employer, you may receive a stipend. However, if the internship or fellowship provides more of a benefit to the employer, then you may be considered an employee who is entitled to minimum wage and overtime pay.
Distinguishing between a stipend and a wage is important because the amount of a stipend may be lower than minimum wage. Furthermore, your taxes may not be withheld from a stipend.
It depends. A volunteer is someone who volunteers their time for “civic, charitable, or humanitarian reasons” without the promise or expectation of compensation. However, a volunteer may be paid a stipend if any of the following criteria are met:
- The stipend is less than $500 a year;
- The stipend is less than 20% of what a typical employee would be paid for the same service; or
- The volunteer is not offered the same benefits that paid employees would receive.
Volunteers may also be reimbursed for reasonable expenses while volunteering.
It depends. If you are an intern providing non-manual services to a charitable, religious, educational, or other such organization under Section 501(c)(3) of the IRS Tax Code, you are exempt from mandatory coverage. However, interns working for these organizations may still volunteer for coverage.
Paid and unpaid interns that work for organizations not listed under Section 501(c)(3) are generally entitled to coverage. However, laws vary from state to state. To learn more about worker’s compensation, please visit our Workplace Injuries/Health & Safety page.
Generally, volunteers are not covered by worker’s compensation. However, you may qualify if you are part of a specified class under your state’s laws. Additionally, if you receive non-monetary compensation for your volunteer work and entered into an agreement regarding such payment, you could be entitled to coverage. Yet, laws vary from state to state, so you should consider contacting an employment lawyer in your state.
Generally, externships provide academic credit for their externs, while internships provide experience. However, the title of the experience is less relevant to courts than what the experience entails when courts are determining whether the internship/externship should be paid or not. If an organization provides academic credit for the experience, courts will take that factor into consideration in favor of allowing the internship to be unpaid.
Generally, no. If you are receiving academic credit, then you are an extern and may not be paid. However, you may be given a stipend to cover reasonable expenses.