Employers who hire unpaid interns face heavy scrutiny under Massachusetts wage and hour laws. Massachusetts employers must pay their interns state minimum wages unless the employer can demonstrate that their unpaid intern is exempt under both the state’s criteria, and the six part test used by the United States Department of Labor under federal law.

The Fair Labor Standards Act considers “trainees” exempt from the definition of “employee” thus removing trainees from the protections of the FLSA. The Department of Labor has established a six-part test to determine who may be a “trainee”:

• The training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in a vocational school;
• The training is for the benefit of the trainees or students;
• The trainees or students do not displace regular employees, but work under their close observation;
• The employer that provides the training derives no immediate advantages from the activities of the trainees or students, and on occasion the employer’s operations may actually be impeded;
• The trainees or students are not necessarily entitled to a job at the conclusion of the training period; and
• The employer and the trainees or students understand that the trainees or students are not entitled to wages for the time spent in training.

Massachusetts Minimum Fair Wage law has it’s own requirement that all employees in an “occupation” must be paid. The Massachusetts statute is even more protective in that the intern must be working “under a training program in a charitable, educational, or religious institution,” to be considered exempt from the statutory definition of occupation. This requirement has been applied to both for-profit and non-profit organizations.

Interns who have been wrongfully denied wages are entitled to the same wage protections as any other employee and “can bring a civil action for injunctive relief, for any damages incurred and for the full amount of the wages less any amount actually paid to him by the employer,” as provided by the Massachusetts Minimum Fair Wage law. Further, “[a]n employee so aggrieved who prevails in such an action shall be awarded treble damages … and shall also be awarded the costs of the litigation and reasonable attorneys’ fees.” Employers must be very careful not to misclassify their employees and interns or else they may suffer the consequences of Massachusetts’ wage laws.