Imagine the following scenario: someone approaches a brewer and offers their services for free, either because they genuinely enjoy the work and culture of craft brewing (and thus will volunteer their time) or because they are trying to learn the ropes in the industry (and thus will work as an unpaid \u201cintern\u201d). That sounds great, doesn\u2019t it? The brewer receives free labor, keeping costs down and driving profits up. And because the individual agreed to do it\u2013indeed, it was the individual\u2019s idea in the first place\u2013it must be ok, right? The U.S. Department of Labor would beg to differ.<\/p>\n
The Fair Labor Standards Act (“FLSA”), enacted as part of Franklin D. Roosevelt\u2019s New Deal, guarantees certain minimum wages to anyone who is \u201cemployed.\u201d In one of the great legislative turns of phrase, the statute defines \u201cemploy\u201d to mean \u201cto suffer or permit work.\u201d The Department of Labor and the courts have interpreted this phrase broadly, creating a strong presumption that anyone performing services for a for-profit business should be classified as an \u201cemployee\u201d and therefore must be paid for their time (note that this post focuses on paid vs. unpaid workers and does not address the employee\/independent contractor issue, which is a subject for another day).<\/p>\n
That said, courts and the Department of Labor understand that there may be certain circumstances where a person can work as an unpaid intern. The legality of an unpaid internship program will be analyzed under (of course) a facts-and-circumstances, multi-factor test. In 2010, the DOL issued guidelines setting out six factors that it considers necessary for a business to accept services from an unpaid intern, including that the business derive \u201cno immediate advantage\u201d from the intern\u2019s work (under this factor, an \u201cintern\u201d wouldn\u2019t be permitted to, for example, pour samples or work the cash register in a tasting room because that would produce an immediate advantage for the brewer). While some courts have relaxed the stringent Department of Labor test, they still focus on who the \u201cprimary beneficiary\u201d of the relationship is: if the brewer is receiving the primary benefit of the relationship, the person will be considered an employee and must be paid.<\/p>\n
But what if someone simply wants to volunteer their time at the brewery? Unfortunately, that would be impermissible. In short, a for-profit business cannot accept volunteer labor; volunteer work is appropriate only in the non-profit realm, where a person is offering their services not for monetary gain, but for religious, civic or charitable purposes tied to the mission of the non-profit organization.<\/p>\n
That someone may offer up their services and agree to work for free is irrelevant. Businesses and individuals cannot agree privately to waive requirements of the FLSA and analogous state law.<\/p>\n
The penalties for non-compliance with the wage and hour laws can be severe. The FLSA provides for, at a minimum, double damages for unpaid wages. In Massachusetts, the Wage Act goes even further and requires treble damages\u2014three times the amount owed\u2014on any successful claim for unpaid wages, regardless of the employer\u2019s intent. Accordingly, before accepting any unpaid help, brewers should consider whether they can meet the legal requirements for an unpaid internship.<\/p>\n","protected":false},"excerpt":{"rendered":"
Imagine the following scenario: someone approaches a brewer and offers their services for free, either because they genuinely enjoy the work and culture of craft brewing (and thus will volunteer their time) or because they are trying to learn the ropes in the industry (and thus will work as an…<\/p>\n","protected":false},"author":26,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"_links_to":"","_links_to_target":""},"categories":[1],"tags":[],"class_list":["post-360","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"acf":[],"yoast_head":"\n