(Updated from 07/04/2019)
I love free trials as much as the next person. Maybe it started at Baskin-Robbins, where we got those tiny spoons to taste the 31 flavors. (Apparently, you can’t sample all 31 flavors during the same visit, in case you wondered.)
Today, we can use the 30-day free trials of software, test mattresses and cars overnight, go to wine and beer tastings, and get free legal consultations (not necessarily from me). We can sometimes take advantage of school internship programs before we hire an employee on a more permanent basis. But not all unpaid labor is legal.
You might want the “too good to be true” deal, but that doesn’t mean you get it–especially not at the expense of others. This seems like an easy concept to understand, yet I am regularly consulted by people who justify their unfair or illegal behavior as follows.
“Everyone in this industry does it.”
No. They don’t. I’d be willing to bet I can find competitors in your industry that strictly follow labor laws. They are often (although not always) the ones struggling a bit more, yet happy they are in their businesses. They also tend to have happier, more loyal employees.
“I paid in ways other than wages.”
That’s nice, but exposure doesn’t keep a roof over anyone’s head; it leaves them exposed. Telling the grocery store clerk about a cool project or employer will rarely get a worker dinner or a place to live. If you’re a for-profit business and the worker was not getting educational credit for the tasks performed, you probably still owe wages. Experience, lunches, and other perquisites, or “perks”, are not wages.
“We were still interviewing or testing him.”
No. The moment you asked the interviewee to come back on a specific date and at a specific time to show his skill on your existing task list or project, you likely hired him. A test is usually short and generic, providing you only the benefit of knowing whether he has the skills to do specific work. A shift of three or more hours is typically training, and training is part of work you pay for at the minimum wage, if not the employee’s usual wage.
I know there are famous business, career, and financial gurus who encourage people to volunteer to work in new industries, while they build their skills and marketability in those industries. I also know they are typically non-lawyers and outside of New York State.
One of them invited me to volunteer at an event he held in New York City. He earned tens of thousands of dollars from ticket sales for the event, yet he staffed it with people who got nothing more than experience and exposure–to people signing in and asking for directions to restrooms during the event.
The workers got no pay, no tickets, none of his books, or anything of monetary value for their work at the event. He arguably broke the law and has the funds to pay the penalties, if he gets caught.
You probably won’t have that kind of cash lying around. Don’t take the risk.
This post is intended only as general information regarding worker misclassification and employment laws. It is not legal advice and does not establish an attorney-client relationship. If you need specific legal advice regarding your workforce, please contact an attorney to discuss your circumstances.
Not sure if your internship is legally valid?
Nance L. Schick, Esq. is an attorney, mediator, conflict resolution coach, and diversity trainer based in New York City. Her goal is to keep employers out of court and build their conflict resolution skills so everyone has a better work experience. For more than 15 years, she has been negotiating penalty settlements for employers who unintentionally misclassify their workers. She is creator of the Third Ear Conflict Resolution process, author of DIY Conflict Resolution, and an award-winning entrepreneur acknowledged by Super Lawyers (ADR, 2018, 2019 & 2020), the New York Economic Development Corporation/B-Labs (Finalist, Best for NYC 2015 & 2016), U.S. Chamber of Commerce (2015 Blue Ribbon Small Business), Enterprising Women Magazine (Honorable Mention, 2014 Woman of the Year awards), and more.