March 18, 2020
Even unpaid interns may be eligible for workers’ comp
Remember when you were willing to work for little or no pay just to get some “real-world” experience in your chosen field?
If your organization helps students and recent graduates gain work experience by offering internships, be aware that even unpaid interns could be eligible for workers’ compensation benefits.
Paid interns are almost always covered by your workers’ compensation policy. Statutes and case law relating to unpaid interns vary by state.
A key issue in determining compensability is whether the student is under the control of the employer as far as work schedule and duties as well as the presence of room, board or other allowances. If so, that could give legal grounds to identify the unpaid intern as an employee.
Unpaid intern or volunteer?
Another issue is differentiating between an unpaid intern and a volunteer. While unpaid interns may be eligible for workers’ compensation benefits, volunteers generally aren’t. Interns are typically characterized as advanced students or recent graduates who are learning a professional field.
Some states get specific on interns who qualify for workers' comp
Some state laws specifically list certain types of interns who are eligible for workers’ compensation.
For example, Minnesota law specifically states that, for purposes of workers’ compensation, student teachers are considered employees of the schools where they’re working. South Dakota law stipulates that vocational program students working off school premises are considered school employees unless the offsite organization where they are working pays them or otherwise elects to cover them.
Contract between school and workplace key
When there’s a question whether an intern is eligible for workers’ comp, SFM’s attorneys often look to the contract between the intern’s school and the organization where the intern is working. In some cases, the contract explicitly states that the employer will provide workers’ compensation coverage.
This fact sheet from the U.S. Department of Labor provides general information to determine whether interns must be paid minimum wage and overtime.
This is not intended to serve as legal advice for individual fact-specific legal cases or as a legal basis for your employment practices.