Virginia Unpaid Interns May be Eligible for Worker's Compensation
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FAQ
In order to apply for a workers' compensation exemption, the applicant must complete and submit a Notice of Election to be Exempt online via the Florida Division of Workers' Compensation. The exemption application process is fairly straightforward once you determine that you have met the qualifications.
Depending on the position, interns may or may not be paid. Unpaid internships are common, especially when the internship counts as academic credit toward graduation.
Employers who hire unpaid interns face potential legal troubles, including costly class action lawsuits. Recently, unpaid interns brought a class-action lawsuit against Mary-Kate and Ashley Olsen's entertainment company, Dualstar Entertainment Group, LLC.
Unpaid internships are legal if the intern is the primary beneficiary of the arrangement. This is determined by the seven-point Primary Beneficiary Test. If an employer is the primary beneficiary, the intern is considered an employee under the Fair Labor Standards Act and entitled to minimum wage.
If an intern is placed with the employer for a trial period with the expectation that he or she will then be hired on a permanent basis, that individual generally would be considered an employee under the FLSA.
As such, unpaid interns rarely, if ever, receive protection under Title VII. Courts consider benefits other than wages such as sick leave and social security, but the tests still leave out swaths of students and other unpaid interns who should be protected.
Volunteers are in fact excluded from Florida's workers' compensation statutes, although there are some exceptions that workers and employers should be aware of. Florida does require workers' compensation benefits be provided to any person volunteering for a government entity or an agency of the government.
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.
Workers' compensation laws apply a broad definition of the word employee and may cover interns regardless of whether they are paid or not. Accordingly, interns whether paid or unpaid are eligible for workers' compensation benefits in most cases.
The United States Department of Labor's regulations require that for-profit companies pay at least minimum wage ($7.25/hour in Virginia) if the intern is employed to include suffer or permit to work for the employer. In most cases, the intern is considered an employee and must be paid.
