Thursday, May 2, 2019

Agricultural Law in the Spotlight: Apprentices, Interns, and Volunteers

Written by M. Sean High—Staff Attorney

To help agricultural producers better understand their legal obligations relating to the agricultural workforce, the Penn State Center for Agricultural and Shale Law is publishing a series of Agricultural Law in the Spotlight articles addressing key farm labor issues.  The first article in the series covered an agricultural producer’s basic legal obligations under the Fair Labor Standards Act.  This article will address legal considerations regarding the use of workers who are classified as apprentices, interns, and/or volunteers.

Proper Classification of Agricultural Workers
As was discussed in the previous article, the Fair Labor Standards Act of 1938 (FLSA) sets the federal standards for overtime pay, minimum wage, and child labor.  FLSA requires an employment relationship.  If a worker is not an employee, then FLSA requirements do not apply.  

Under FLSA, workers employed solely in agriculture are not entitled to overtime pay.  Agricultural employees, however, may be entitled to minimum wage as FLSA provides only limited exemptions for agricultural operations.  As a result, agricultural producers should determine if workers who they consider to be apprentices, interns, or volunteers are actually employees who are entitled to FLSA’s minimum wage protection.  The legal obligations for which an agricultural operation is responsible depend upon the specific legal status – employee, apprentice, intern, or volunteer – of their workers.  Thus, it is imperative that a farm properly categorize their workers.  When a farm has work performed by someone claimed to be an apprentice, intern, or volunteer, this worker must meet the appropriate legal standard for his or her position.

An apprentice is a person who agrees to work for an employer for a fixed time-period, at wages that are usually relatively low, in exchange for learning a trade.  In short, an apprenticeship is a job with training.  Therefore, apprentices are employees covered under FLSA. 

Many industries have historically used the apprentice system to pass on specialized skills from a master practitioner to an interested student.  For example, in many states (though not in Pennsylvania) an individual can acquire a barber’s license through either attending barbering school or serving an apprenticeship in a licensed barbershop.  In those instances, the apprentice would receive pay while working the hours necessary to fulfill the state’s licensing requirements.  

Frequently, industries create formal apprenticeship programs that are registered with the U.S. Department of Labor or an approved State Apprenticeship Agency.  Apprenticeships under these programs generally last from one to six years and can be sponsored by an individual business, an employer association, or in partnership with a labor organization.  These types of apprenticeships usually involve both on-the-job training and related classroom instruction conducted under the supervision of a highly skilled trade professional.    

Recently, members of the agricultural industry in Pennsylvania have created two new formal apprenticeship programs designed to pass on important knowledge and skills to a new workforce.  As with all formal state apprenticeship programs, apprentices in both programs are considered employees under FLSA. 

First, on October 10, 2017, the Pennsylvania Department of Agriculture announced the creation of an agricultural equipment service technician apprenticeship program.  Under the program, five Pennsylvania equipment companies have agreed to hire and provide mentors to the employee apprentices.  Sponsored by the Northeast Equipment Dealers Association, the program is intended to resolve anticipated workforce shortfalls resulting from the retirement of more than 1,000 of Pennsylvania’s agricultural equipment service technicians by 2027.  

Second, on March 21, 2019, the Pennsylvania Association for Sustainable Agriculture (PASA) announced state approval of a formal apprenticeship program for vegetable growers.  Called the Diversified Vegetable Apprenticeship, the new program was developed by PASA and provides a way for beginning farmers to train under master growers.  The program is intended to help beginning farmers acquire the skills necessary to start their own vegetable farms and to assist master growers meeting their employment needs.  Since 2016, PASA also has offered an apprenticeship focused on dairy grazing in conjunction with Wisconsin-based Dairy Grazing Apprenticeship.

Internships are positions held by workers—called interns—for the primary purpose of providing work experience for these interns.  If a position meets the requirements necessary to qualify as an internship, the intern is not considered to be an employee and is therefore not required to be provided  compensation for the work performed.  

FLSA requires that for-profit businesses—as opposed to nonprofit organizations—pay all employees for their work.  In certain specific situations, however, a worker at a for-profit business could be considered an intern and not an employee.  In those circumstances, because an employment relationship would not exist, FLSA compensation requirements would not apply to the intern.

Whether the worker at a for-profit agricultural business is considered to be an employee or an intern will depend on who primarily benefits from the work being performed—the business or the worker.  If the work being performed is primarily for the benefit of the agricultural business, then the worker is an employee who is entitled to wages.  If the work being performed is primarily for the benefit of the worker, then the worker is an intern and not entitled to wages. 

According to courts that have ruled on this issue, seven factors are to be considered when determining when work at a for-profit business is primarily for the benefit of the worker and may qualify as an internship:
  1. Both the business owner and the worker understand that there is no expectation of compensation for the work to be performed;
  2. The training provided is like that given in an educational environment; 
  3. The work is tied to the worker’s formal education (such as receiving academic credit for the work performed); 
  4. The work accommodates the worker’s academic commitments by corresponding to the worker’s academic calendar; 
  5. The duration of the work is limited to the time the worker receives beneficial learning; 
  6. The worker does not displace paid employees; and 
  7. Both the business owner and the worker understand that the worker is not entitled to a job after the work period has been completed.

No single factor in the primary benefit test is intended to be dispositive in the determination of whether the work being performed is for the primary benefit of the worker.  Instead, the circumstances of each work arrangement are to be assessed individually.  

A volunteer is an individual that freely gives of his or her time in performing work-related tasks.  Unlike an apprentice, a volunteer has no expectation of wages nor of receiving job training.  Unlike an intern, a volunteer has no expectation of receiving work experience.  Instead, a volunteer is merely demonstrating their generosity through contributing time to a charitable or public purpose. 

FLSA does not apply to qualifying volunteer work.  Accordingly, an individual may volunteer his or her time to a public entity such as a local fire department or public library and not be covered under FLSA.  Additionally, an individual may generally volunteer his or her time to a nonprofit organization such as a church or civic organization and not be covered under FLSA.  An individual, however, may not volunteer his or her time to a for-profit business. 

While an individual may volunteer his or her time to a nonprofit organization, certain restrictions apply.  Generally, an individual may not volunteer to operate any commercial activity that a nonprofit organization offers to the public.  For example, a volunteer may not operate a cash register in a nonprofit organization’s retail gift shop. 

Additionally, volunteers may not be used to displace a nonprofit organization’s employees or to perform work that is normally performed by the nonprofit organization’s employees.  For example, if a nonprofit organization normally employs workers to unload trucks in its warehouse, the nonprofit organization may not bring in volunteers to unload trucks in its warehouse.

Finally, an employee of a nonprofit organization may not volunteer to perform the same type of work at the nonprofit organization for which the worker is currently employed.  For example, a nonprofit organization employee hired to unload trucks in the nonprofit organization’s warehouse may not volunteer to unload trucks in the nonprofit organization’s warehouse after the employee’s work shift has ended.

While agricultural producers may potentially utilize apprentices, interns, and/or volunteers to perform work, they must fully consider their legal obligations under FLSA.  First, an apprentice is an employee under FLSA and such workers must receive both on-the-job training and wages for their efforts.  Next, an intern is not an employee under FLSA as the work performed by the intern is primarily for the benefit of the intern.  Interns are not entitled to wages.  Finally, a volunteer is not an employee under FLSA and is not entitled to wages.  Individuals, however, may not volunteer their services to for-profit businesses and are limited in the types of activities that they perform for a nonprofit organization.

U.S. Department of Labor, Apprenticeship Resources

U.S. Department of Labor Wage and Hour Division, Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act

U.S. Department of Labor Wage and Hour Division, Fact Sheet #14A: Non-Profit Organizations and the Fair Labor Standards Act (FLSA)

U.S. Department of Labor, Fair Labor Standards Advisor, Volunteers

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