Internship Legalities

This article first appeared in the Tilth Producers Quarterly Journal, Spring 2011.

Doug Collins, WSU Small Farms Program
Kristen Koenig, WSU Cultivating Success™ Program
Fred Berman, WSDA Small Farm and Direct Marketing Program
With contributions by Kate Dean, L & I Small Farms Internship Program

Importance of farm internships in agricultural education

On-farm learning and experiential education have long been considered an essential element of learning to farm.  Ideally, an internship allows novice farmers to gain a breadth of experience in growing produce and/or raising animals and also participate in marketing and even value-added processing.

While interns do not have to be monetarily compensated for work done, they are compensated through training and work experience.  Problems with internships may arise when work is done on the farm without the educational benefits required for a legitimate internship.

Interns are trainees, not employees

The Washington State Department of Labor and Industries (L&I) is charged with enforcing laws that protect workers’ wages and working conditions.  They also oversee registered apprenticeship programs and administer the State’s workers’ compensation system.

Workers’ compensation is an industrial insurance program that provides coverage for most employers and workers in Washington State.  Employers must provide coverage for their employees.  In return, employers normally cannot be sued for damages when a work-related injury or illness occurs.  Workers compensation is paid on a per hour rate depending on the type of work being done.  Hourly rates range from $0.46/ hour for vineyard work to $2.14/hour for livestock work.

Workers on the farm can be placed into one of three categories:  hourly or salaried employees, interns and underage workers (underage workers will not be discussed in this article; see resources for more).  Hourly or salaried employees include apprentices; interns may be student interns or non-student interns.  To comply with wage laws, specific criteria must be met for each category.

Hourly or salaried employees

Employees are paid greater to or equal to minimum wage (currently $8.67/hr or paid piece rate).  Employers are required to pay workers’ compensation based on what type of work is done and also must cover state and federal unemployment compensation.  While the terms “apprentice” and “intern” are occasionally used interchangeably by some farms, they have different legal definitions.  Both include hands-on education, but apprenticeships must be paid positions and must be approved by the Washington State Apprenticeship Council (a division of L&I).  Apprenticeships must teach highly technical skills and graduate apprentices to “journey workers.”  Being a registered apprentice requires a long-term commitment on behalf of the farmer/mentor (over one year).  This entitles the apprentice to reduced tuition at accredited colleges and vocational schools.  L&I will pay up to 50% of tuition.

Interns

L&I defines an internship as “a work-related learning experience for the benefit of individuals who wish to develop hands-on work experience in a certain occupational field.”  Interns are not employees and are not eligible for benefits that are available to employees (e.g. wages and workers’ compensation).  Even if they receive a cash stipend (e.g. $500/month) they are in the “unpaid” category if the stipend amounts to less than minimum wage.  According to Washington State law, wages need to be paid in money; exchanges of work for room and board, CSA memberships, etc. cannot be counted as wages.  Any substitution of wages must be established in writing prior to employment at a mutually agreed value, and can then be deducted from a paycheck as an expense incurred by the employee, but only after all hours are fully accounted and paid for.

The federal Fair Labor Standards Act states that for trainees to be considered interns and not employees, a program must meet six criteria:

1. The training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in an educational environment or vocational school.

2. The training is for the benefit of the trainee.

3. The trainees do not displace regular employees, but work under their close supervision.

4. The business that provides the training derives no immediate advantage from the activities of the trainees, and may in fact be impeded.

5. The trainees are not necessarily entitled to a job at the conclusion of the training period.

6. The trainees understand they are not entitled to wages for the time spent in the training.

Some of these criteria are clearly open for interpretation and L&I provides a fact sheet that elaborates on these expectations (see resources).  Providing an environment similar to an educational institution or vocational school can be aided by associating an internship with an academic institution.  In this scenario the intern would enroll for academic or continuing education credit with an accredited institution (see resources).  Farmers must allot significant and consistent time to educating interns with established curricula.

The requirement that the business “derive no immediate advantage from the activities of the trainee” is also difficult to define as once an intern is trained there may indeed be benefit to the farmer.  However, if an intern is truly new to the activity, or has not yet mastered it, then the farmer has to train the individual and it will take longer to accomplish the task than if an experienced worker were employed from the beginning.  There is an advantage but it is not immediate because more time is taken to train them.

An intern that works independently on a regular basis, as opposed to shadowing a farmer, may be construed as displacing a regular employee.  Working side by side with interns and using work tasks as instructional opportunities differentiates interns from employees.

Ultimately it is the farmer’s responsibility to be sure that their program is a bona fide internship experience that meets the six criteria listed above.  Farmers should defer to L&I for interpretation of legal issues.  If L&I finds that it is not legitimate, they could deduct any wages paid (e.g. stipends) as a partial payment of wages and require full payment to the worker for all hours worked.  L&I could also levy penalties if an audit determined that an employer is at fault.

Interns and workers’ compensation

Workers’ compensation is designed to protect both employees that might be injured on the job and employers that might lose their assets if an employee is hurt.  Businesses cannot pay worker’s compensation for unpaid interns because worker’s compensation only covers employer and employee relationships. Certain student volunteers, up to grade 12, are eligible for workers’ compensation (see “Student volunteers and workers’ compensation”).

Avoiding risk in a noble pursuit

Farmer mentors provide a much needed service to beginner farmers and are well intentioned in giving novices opportunity to work, learn, and often live on their farms.  These arrangements can create an unintended risk to the host farm.  If an individual is not a qualified intern then they must be compensated at least minimum wage and the employee must pay worker’s compensation and unemployment.  In addition to building their internship around the six criteria referenced above, confusion can be clarified for both business owners and interns with transparency.  It should be clear to all that wages and worker’s compensation coverage are not due.  Farmers can take further precautionary steps to protect themselves in the event of unforeseen accidents by carrying liability insurance as well as requiring that interns have current health insurance.

It is widely assumed that Willing Workers on Organic Farms (WWOOFers) and other ‘apprenticeship’ programs are sanctioned because of their ubiquity.  However, L&I clearly states that there is no ‘volunteer’ employment recognized in the labor laws pertaining to ‘for profit’ businesses.  This translates to a major risk for farmers should there be a complaint filed (often resulting from an on-the-job injury, or a disgruntled ‘intern’).  Non-compliance could oblige farmers to pay back wages and penalties, an expensive alternative to hiring employees or adhering to L&I guidelines for a legitimate internship.

Resources from L&I

• Unpaid Internships 101
  This fact sheet is from L&I and lays out the current law on unpaid internships.
• Farm internship pilot program
  The legislation that created the intern pilot project in Skagit and San Juan Counties specifically directed L & I to set up workers’ compensation risk classifications for farm internships.
• Workers’ compensation
  An Employers’ Guide to Industrial Insurance in Washington State.  Rates by type of work can be found here.
• Student volunteers and workers’ compensation coverage
• Hiring minors in agriculture
• Registered Apprenticeships

Support for internship programs

• Alternative Farming Systems Information Center. Provides listings of educational and training opportunities in sustainable agriculture by colleges and universities as well as non-governmental organizations.
• ATTRA – National Sustainable Agriculture Information Service. This directory of on-the-job learning opportunities in sustainable and organic agriculture has been published since 1989 as a tool to help farmers and apprentices connect with each other.
• Cultivating Success™. Accredited farm internship program through WSU and UI.  Farmers can apply to be mentors and beginning farmers can apply to be interns
• Collaborative Regional Alliance for Farmer Training (CRAFT)
• Grow Food. Connects farmers interested in teaching with people interested in farming
• Sustainable Agriculture Education Association. Promotes and supports the development, application, research, and exchange of best teaching and learning practices in sustainable agriculture education. The resources section contains information on academic programs and student farms at colleges and universities around the nation as well as job listings.
• Sustaining Family Farming Through Mentoring:  A Toolkit for National Family Farm Coalition Members. This report includes an introduction to beginning farmer issues; a research project that explored the strategies and challenges of mentoring organizations; a compilation of resources for experienced farmers interested in becoming mentors; and a directory of mentoring organizations.
• Western Sustainable Agriculture Research & Education Farm Internship Curriculum and Handbook. The curriculum was designed for individual farmers to use during the course of the workweek. It is comprised of twenty-seven topics. Many of these “classroom” topics include “in-field” components that can be utilized while teaching and demonstrating new tasks. The companion “Farm Internship Handbook” details successful methods of recruitment, hiring, negotiating with, training, and managing interns.