You don’t have to be one of Bill Clinton’s interns to feel like your employer is screwing you. The growing reach of the “intern net” has ensnared countless employees in unpaid jobs. Fortunately, California law untangles employees from the “intern net” by making unpaid internships illegal in many, if not most, cases. That doesn’t mean an employer must always pay an employee the minimum wage. In California, an employer can pay a “learner” the sub-minimum wage for up to 160 hours. The employer just better not assume that an employee is a learner just because he’s a minor. That’s because the law generally requires employers to pay minors the minimum wage.
What’s an Intern?
If an employer “engage[s], suffer[s], or permit[s]” someone to work for him, that person is an “employee.”1 But an intern (or “trainee”) isn’t an employee. In California, courts weigh six factors to determine whether a worker is a “trainee”: (1) his training is similar to that which he would get in vocational school; (2) his training is for his benefit; (3) he doesn’t displace a regular employee and works under close observation; (4) the employer derives no immediate advantage from the trainee’s activities, and, occasionally, the use of a trainee might impede operations; (5) the trainee isn’t necessarily entitled to a job when the training period ends; and (6) the employer and the trainee understand that the latter won’t earn wages for training time.2
Not all internships are illegal. The U.S. Department of Labor has carved out exceptions to the minimum wage for volunteers for non-profit organizations and (unsurprisingly) government agencies. These individuals generally include: (1) volunteers who perform services for a state or local government agency and those who volunteer for “humanitarian purposes for private non-profit food banks”; (2) individuals who “volunteer their time, freely and without anticipation of compensation for religious, charitable, civic, or humanitarian purposes to non-profit organizations”; and (3) unpaid interns in the “public sector and for non-profit charitable organizations, where the intern volunteers without expectation of compensation.”3
What’s a Learner?
California law allows an employer to pay a learner 85% of the minimum wage, rounded to nearest nickel, but only during his first 160 hours of employment.4 But an employee is never too old to be a learner. That’s because a “learner” is any employee, regardless of age, who works in an occupation in which he has no previous “similar or related experience.” The law doesn’t say when experience is “similar” or “related.” Presumably, a restaurant couldn’t just promote a cook to head chef so it could pay him a learner’s wage. That would be ridiculous. In any case, an employee must have literally “no” similar or related experience to be a learner. Thus, McDonald’s probably couldn’t pay an employee a learner’s wage if he has flipped even one burger for Burger King.
Just because an employee is a minor doesn’t make him a learner – or exempt from the minimum wage. California law once allowed an employer to pay a minor 85% of the minimum wage (rounded to the nearest nickel). That exemption was subject to several exemptions of its own: (1) the number of minors an employer could employ at sub-minimum wage couldn’t exceed 25% of his “regular” employees; (2) an employer with fewer than 10 employees couldn’t employ more than three minors at sub-minimum wage, except during school vacations; and (3) the minor couldn’t be a high school graduate or have a “certificate of proficiency.” That, however, hasn’t been the law since 2001. In California, the minimum wage for minors is the same as it is for adults.