Introduction to the Fair Labor Standards Act (FLSA)

F. U NPAID I NTERNS There is no category of “intern” set forth in the FLSA or its implementing regulations. As such, unpaid interns must satisfy the criteria of volunteer or trainee. To evaluate whether unpaid interns qualify as trainees, Courts have applied the multi-factor “primary beneficiary” test discussed above. 38 Whether an intern is an employee under the FLSA necessarily depends on the unique circumstances of each case.

H OURS W ORKED

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A. I NTRODUCTION Under the FLSA, overtime compensation must be paid for all hours actually worked over a maximum amount in a work period (usually 40 hours in a seven-day FLSA workweek). Thus, it is critical to determine which hours are considered hours worked under the Act, and which hours do not count toward the calculation of overtime in a work week. Generally, “[w]ork not requested but suffered or permitted is work time.” 39 Thus, under the Act, if an employer allows an employee to work, such time will be considered “hours worked,” even if the employer is not specifically aware of the work being performed, and even if the work is carried out before or after normal working hours. B. D ISTINCTION B ETWEEN W ORK T IME AND P AID T IME Under the FLSA, paid time does not equal working time, or hours worked. Merely because an employee is in paid status does not mean that the paid status time must be counted as hours worked. In general, the FLSA only requires payment based on hours actually, physically worked by employees. 40 For example, if an employee is scheduled to work five days in a workweek, works the first four days and takes vacation leave on the fifth day, the employee will have only worked 32 hours under the FLSA. That employee would still need to work eight additional hours in the FLSA workweek before FLSA overtime could be earned. C. E MPLOYEES C ANNOT V OLUNTEER W ORK T IME Work that employers allow employees to perform will count toward hours worked, even if the employer is unaware of the work results, and even if the employee cheerfully performs the work on a volunteer basis. Thus, the regulations provide:

Introduction to the Fair Labor Standards Act (FLSA) ©2020 (s) Liebert Cassidy Whitmore 14