In the process of implementing an internship program, your company should evaluate whether or not a legal employment relationship will be created between your company and the student intern. The determination of whether an intern is an employee for the purpose of the numerous state and federal employment laws may affect the relationship. Although many laws define employees in similar ways, an intern may be defined as an employee with legal ramifications under some circumstances and not under others.

National Association of College and Employers (NACE) developed guidelines to help employers determine if a relationship can be classified as an internship. To ensure that an experience — whether it is a traditional internship or one conducted remotely or virtually — is educational, and thus eligible to be considered a legitimate internship by the NACE definition, all the following criteria must be met:

• The experience must be an extension of the classroom: a learning experience that provides for applying the knowledge gained in the classroom. It must not be simply to advance the operations of the employer or be the work that a regular employee would routinely perform.
• The skills or knowledge learned must be transferable to other employment settings. 
• The experience has a defined beginning and end, and a job description with desired qualifications.
• There are clearly defined learning objectives/goals related to the professional goals of the student’s academic coursework.
• There is supervision by a professional with expertise and educational and/or professional background in the field of the experience.
• There is routine feedback by the experience’s supervisor.
• There are resources, equipment, and facilities provided by the host employer that support learning objectives/goals.

Internship Programs Under The Fair Labor Standards Act

Assuming a position meets the guidelines to be a legitimate internship, employers need to consider a second set of criteria to determine appropriate pay or if an intern can be unpaid.

The legal considerations are addressed through six criteria for unpaid interns for the service they provide to “for-profit” private sector employers articulated in the Fair Labor Standards Act. Essentially, if the six criteria are met, the Department of Labor (DOL) considers there to be no employment relationship.

The seven criteria established by the DOL are:

1. The internship, even though it includes the actual operation of the employer’s facilities, is similar to training that would be given in a vocational school.
2. The internship experience is for the benefit of the student.
3. The student intern does not displace regular employees but works under the close observation of a regular employee.
4. The employer provides the training and derives no immediate advantage from the activities of the intern. Occasionally, the operations may actually be impeded.
5. The student intern is not necessarily entitled to a job at the conclusion of the internship.
6. The employer and the intern understand that the intern is not entitled to wages for the time in the internship.

If the company has determined that it is required to compensate the interns according to FLSA, then the compensation must be equivalent to an hourly rate of at least the minimum wage for all hours worked.

Learn more about FLSA on the Department of Labor website. 

The federal government has several laws that prohibit discrimination for employees. Employment professionals will maintain equal employment opportunity compliance and follow affirmative action principles in recruiting activities in a manner that includes:

• Recruiting, interviewing, and hiring individuals without regard to race, color, religion, national origin, sex, sexual orientation, age, veteran status or disability, and providing reasonable accommodations upon request. 
• Reviewing selection criteria for adverse impact based on the student’s race, color, religion, national origin, sex, sexual orientation, age, veteran status, or disability. 
• Avoiding the use of inquiries that are considered unacceptable by Equal Employment Opportunity (EEO) standards during the recruiting process.
• Developing sensitivity to, and awareness of, cultural differences and the diversity of the workforce. 
• Informing FCPS of special activities which have been developed to achieve the employer’s affirmative action goals. 

For additional information on non-discrimination laws and EEOC, visit the EEOC website for employers.

In addition, rights and obligations of the intern may arise out of state or federal employment laws, including, but not limited to, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act and the Age Discrimination in Employment Act. Your existing company policies and benefits may also create certain rights and obligations

FCPS Non-Discrimination Policy

No student, employee, or applicant for employment in the Fairfax County Public Schools shall, on the basis of age, race, color, sex, sexual orientation, gender identity, religion, national origin, marital status, or disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity, as required by law. It is the express intent of the School Board that every policy, practice, and procedure shall conform to all applicable requirements of federal and state law.

Dismissal of student interns should only occur in cases of major misconduct (theft, assault, use of controlled substances in the workplace, etc.) or instances of significant willful violation of organization policy after prior instruction.

Student Interns, for the most part, are young people who may not have the same level of maturity and judgment as those in your regular workforce. Accordingly, there should be a high level of patience for their adjustment to the workplace during the internship. The student intern’s employer supervisor has a responsibility to give clear, accurate direction and to follow up with corrective feedback if the work is unsatisfactory.

If the employer supervisor still decides to dismiss student interns, they must clearly articulate in writing the reason(s) for dismissal. It is important to keep the participating high school informed of the reasons for dismissal so that school staff can weigh in on the decision as well as provide additional support with disciplinary actions at the school-level. At the conclusion of the internship, there is no obligation to ask the student to return for another internship or extend an offer of regular employment.

As required by Section 22.1-296.1 of the Code of Virginia, certify that the student will not have direct contact with known registered sex offenders. Recognize that a student cannot be in contact with a registered offender, and therefore this could impact the school’s ability to continue a partnership with the company through part of a school-based program.

In some cases, student interns may work on projects where intellectual property rights are a concern for the organizations. Typically, if new employees would be asked to sign a non-disclosure agreement, a student intern may be asked to do so as well.

Since internships are short-term in nature, benefits are not typically offered to interns. Parents and Guardians assume responsibility for transportation and the student’s safety from the time the student leaves home and/or school until the student reports to the workplace and from the time the student leaves the workplace until arrival at home. Fairfax County Public Schools (FCPS) will have no responsibility for the transportation of students to and from the workplace.

Benefits students are most interested in:

• Challenging work scope and well-defined internship project
• Engaging company culture and competitive organization
• Access to industry leaders and opportunities to network
• Professional development training, whether in skills or industry-specific software
• Monetary benefits (salary, stipend, travel expenses)
• Interesting perks (company trips, discounts on services rendered by the organization

FCPS does not provide medical insurance for accidents that occur while student workers are participating in unpaid/paid internships. Voluntary student insurance may be purchased by students since FCPS does not provide medical insurance for accidents that occur while student workers are participating in paid internships. In accordance with the Code of Virginia, students in paid positions with a host company that employs three or more employees are covered under Workers Compensation (Code 1950, Title 65.2). For more information or clarification concerning insurance-related issues, call the WBL School Lead.

Students are always looking for internships. Structuring an internship around the school calendar may help to attract motivated and high-quality interns. Common student search periods:

An average internship:

• Is three to four months.
• Occurs during a student’s typical semester or summer break.

An internship should be long enough for the intern to acclimate to the organization, position, and to complete assignments that are valuable to both the employer and student. 

Summer

During the summer, full-time internships are common.

School Year

If the student intern is not enrolled in the WBL internship course through their school, the student should work a minimum of 50 hours to qualify for completion of the experience.

Work Based Learning (WBL) Internships

Students enrolled in the WBL internship course need to have a minimum of 280 hours for the school year to earn a credit towards graduation. They should work an average of 70 hours per quarter; roughly 7-10 hours per week.

Students enrolled in the WBL Internship course during the school year may apply to be released early from school. This will allow them to start working before the school day ends.

NOTE: Not all student interns are provided with a flexible academic course schedule. This will require flexibility from the employer.