Note: In our guidance we consider the terms “intern” and “apprentice” interchangeable.
Fair apprenticeships #
Interns are not cheap labor. Offering an internship is a commitment to providing a real learning experience where the farmer acts as both teacher and employer.
AJP standards on interns/apprentices are based on this principle:
Farm internships must provide the practical skill acquisition and learning necessary to become a farmer.
AJP standards also require that farm interns be paid at least minimum wage.
Farm internships as they have been practiced in the past are by and large illegal, and workers previously considered interns or apprentices must be treated like regular statutory employees subject to minimum wage and overtime laws. As the Ag Apprenticeship Toolkit says,
State and federal regulatory powers do not make any distinctions between ag apprenticeships and other agricultural labor relationships. To them, ag apprentices are farmworkers.
There are specific legal criteria that must be met in order for a position to be legally considered an internship, and farmers with intern programs have experienced intermittent waves of enforcement actions and penalties by state departments of labor. If a farm offers an internship program that is primarily for the educational benefit of the intern and does not rely on that intern’s labor for its core business, there is a chance that the position may not be covered by minimum wage and overtime laws, but any employer that pays less than minimum wage and is later determined to have inappropriately classified an employee as an intern will be held liable for fines, back wages, and payroll taxes. If your farm offers an internship program and pays less than minimum wage, consult legal guidance to make sure you are in compliance with the law.
If you are in any doubt, treat your interns/apprentices as regular employees.
Regardless of whether an employer can get away with offering low pay, there is also the question of fairness: if we are welcoming new farmers into agriculture, how welcoming is it to pay them rock bottom wages? Many past interns and apprentices have felt taken advantage of and harbored ill feelings to their former employers. Many others have left with the impression that farming relies on taking advantage of laborers and that for that reason small-scale farming is unsustainable and incompatible with their values. This pattern has sent the wrong message to the potential farmers who we so badly need to work the land into the future. High turnover entails high costs from retraining new workers and creates an increased workload for managers, as well as the uncertainties of finding qualified candidates each season. We at the AJP, along with many farmers, feel that the more sustainable route is to offer better working conditions and better wages, in order to attract and retain the most committed employees.
On-farm learning experiences offer important benefits, when they are fairly structured. AJP standards require farms to provide interns with a clear work agreement that spells out wages, hours, and other expectations, as well as a learning contract in which the intern spells out what they hope to learn. (Standard 3.6) Farmer and intern should review this learning contract during and after the season to make sure that they have made progress on learning goals. These meetings provide an evaluation of the farmer as teacher and of the intern as learner.
Is it legal to hire an unpaid intern? #
From the US Department of Labor:
The FLSA [Fair Labor Standards Act] requires “for-profit” employers to pay employees for their work. Interns and students, however, may not be “employees” under the FLSA—in which case the FLSA does not require compensation for their work. …
Courts have used the “primary beneficiary test” to determine whether an intern or student is, in fact, an employee under the FLSA. In short, this test allows courts to examine the “economic reality” of the intern-employer relationship to determine which party is the “primary beneficiary” of the relationship. Courts have identified the following seven factors as part of the test:
- The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
- The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
- The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
- The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
- The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
- The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
- The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.
Courts have described the “primary beneficiary test” as a flexible test, and no single factor is determinative. Accordingly, whether an intern or student is an employee under the FLSA necessarily depends on the unique circumstances of each case.
If analysis of these circumstances reveals that an intern or student is actually an employee, then he or she is entitled to both minimum wage and overtime pay under the FLSA. On the other hand, if the analysis confirms that the intern or student is not an employee, then he or she is not entitled to either minimum wage or overtime pay under the FLSA.
Note that the Department of Labor’s guidance is only concerned with whether or not an employer is legally required to pay interns as employees, subject to minimum wage and overtime regulations. This legal test is distinct from the AJP standards. As noted above, AJP standards require that farm interns be paid at least minimum wage, and the educational opportunities provided must be substantial enough to justify reduced wages.