In Massachusetts, most people who work or provide services are considered employees under the law. This means they are protected by the Massachusetts Minimum Wage and Overtime Laws and must be paid for any time they spend working.
Individuals who are providing services to not for profit or charitable organizations may be classified as volunteers, based on:
- the nature of the entity receiving the services;
- the receipt by the worker of any benefits, or expectation of any benefits, from their work;
- whether the activity is less than a full-time occupation;
- whether regular employees are displaced by the "volunteer";
- whether the services are offered freely without pressure or coercion; and
- whether the services are of the kind typically associated with volunteer work.
The term “intern” is not defined within the law. The law does exclude from minimum wage and overtime: “. . . work by persons being rehabilitated or trained under rehabilitation or training programs in charitable, educational or religious institutions, or work by members of religious orders.” Generally, this means that if a worker receives school or academic credit, then they may be exempt as participating in an educational training program.
If an individual is not receiving school credits, then the inquiry would be whether the worker is a “trainee” or an “employee.” The Massachusetts Department of Labor Standards (DLS) is responsible for determining if an intern is an exempt trainee. To do this, the DLS uses the six part test adopted by the US Department of Labor. If all of the factors (listed below) are met, an employment relationship does not exist and the minimum wage and overtime provisions do not apply to the intern/trainee. Please note that this exclusion is narrowly applied and under Massachusetts law applies to for-profit and not for profit or charitable organizations.
The 6 factors include whether the training:
- internship, even though it includes actual operation of the employer’s facilities, is similar to that which would be given in an educational environment;
- is for the benefit of the intern;
- does not displace regular employees, but the intern works under close supervision of existing staff;
- provides the employer with no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
- the intern is not necessarily entitled to a job at the conclusion of the training; and
- is based on a mutual understanding between the employer and the intern that the trainee is not entitled to wages for the time spent in training.
To request a formal opinion letter stating whether an individual can be considered a volunteer, intern or trainee (and be exempt from the wage and hour laws), contact the Massachusetts Department of Labor Standards at 617-626-6952.
Information from the U.S. Department of Labor :
- U.S. Department of Labor, Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act
- Volunteers Under the Fair Labor Standards Act (FLSA)
- Trainees Under the Fair Labor Standards Act (FLSA)
Information from the Massachusetts Department of Labor Standards (DLS):
- 08/09/2002 - Applicability of M.G.L. c. 151 to Volunteer Work
- 05/09/2002 - Applicability of M.G.L. c. 151 to Certain Job Skills Training Program
- 02/10/2003 - Applicability of M.G.L. c. 151 to Vocational Program
- 11/19/2001 - Students Employed in Cooperative Education Program
Report violations: File a wage complaint with the Attorney General’s Fair Labor Division.