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.
Apprentices
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.
Interns
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:
- Both the business owner and the worker understand that there is no expectation of compensation for the work to be performed;
- The training provided is like that given in an educational environment;
- The work is tied to the worker’s formal education (such as receiving academic credit for the work performed);
- The work accommodates the worker’s academic commitments by corresponding to the worker’s academic calendar;
- The duration of the work is limited to the time the worker receives beneficial learning;
- The worker does not displace paid employees; and
- 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.
Volunteers
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.
Conclusion
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.
References
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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