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Unpaid Foreign Interns

Question: We have taken on a large number of unpaid interns from foreign countries this summer. Are these foreign interns covered by OSHA's recordkeeping requirements?

Monday, October 7, 2013
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Answer:  In order to answer your question, we should begin with the fundamentals.

What is OSHA?

The federal Occupational Safety and Health Act of 1970 (OSH Act or the "Act") was enacted to assure employees safe and healthful working conditions. It establishes safety and health standards for places of employment.

The Occupational Safety and Health Administration (OSHA) is the agency within the U.S. Department of Labor tasked with enforcing the provisions of the OSH Act and promulgating safety and health regulations (OSHA regulations). The OSH Act requires many private-sector employers to provide their employees both employment and a place of employment that are free from "recognized hazards that are causing or are likely to cause death or serious physical harm" and to comply with OSHA regulations.

OSHA's Reporting & Recordkeeping Obligations Requirements: The "What" 

All employers covered by the OSH Act must report to OSHA the death of any employee from a work-related incident or the in-patient hospitalization of three or more employees as a result of a work-related incident within eight hours. In addition, the OSH Act and OSHA regulations require many employers to keep records and post in the workplace a summary of work-related injuries and illnesses. However, workplaces with 10 or fewer employees (in the entire organization) or in low-hazard industries (such as retail, service, finance, insurance and real estate agency/management) are partially exempt from these recordkeeping requirements.

An employer covered by OSHA must record the following work-related incidents:

*           fatalities;

*           injuries and illnesses that result in days away from work, restricted work or transfer to another job, loss of consciousness or medical treatment beyond "first aid" (e.g. use of non-prescription medications or treatment of surface wounds such as scrapes); and

*           Significant injuries (e.g. cuts, fractures, sprains or amputations) or illnesses (e.g. acute or chronic skin diseases, respiratory disorders or poisoning) diagnosed by a physician or other licensed healthcare professional.

OSHA's recordkeeping requirements apply only to work-related injuries, illnesses and fatalities, which an event or exposure in the work environment either caused or contributed to the condition. It also applies to a pre-existing injury or illness significantly aggravated by a work-related condition.

OSHA's Reporting & Recordkeeping Obligations under OSHA:  The "Who"

The question whether foreign interns are covered by OSHA's recordkeeping requirements really consists of three distinct considerations:

*                      Does OSHA protect foreign workers, regardless of whether they are paid workers or unpaid interns?

*           Does OSHA protect unpaid interns, regardless of country of origin?

*           Who qualifies as an intern?

OSHA Most Likely Protects Foreign Workers

Under the OSH Act, an "employee" is defined as "an employee of an employer who is employed in a business of his employer which affects commerce." (29 USC 652(6)). Simply read, the OSH Act carves out no exception for foreign workers. In fact, OSHA enforces the Act respecting foreign workers. For example, in February 2012, OSHA posted an article on its website reporting that OSHA cited a company for failing to record injuries involving foreign student workers. See US Labor Department's OSHA cites 2 companies, proposes $288,000 in fine for workplace safety and health violations involving foreign students, OSHA Regional News Release (Feb. 12, 2012).

OSHA Does Not Apply to Unpaid Interns

An unpaid intern, regardless of his or her country of origin, most likely is not covered by OSHA. The DOL's position, as expressed on its online elaws-OSHA Recordkeeping Advisor tool states unequivocally that "an uncompensated intern or volunteer is NOT considered to be an employee under the OSH Act. Therefore, OSHA Recordkeeping rules do NOT apply to unpaid interns or volunteers." See elaws-OSHA Recordkeeping Advisor, U.S. Dept. of Labor, (last visited Aug. 28, 2013). The OSHA Web-based Recording Keeping Handbook also states "[i]f a student or intern is working as an unpaid volunteer, he or she would not be an employee under the OSH Act and an injury or illness of that employee would not" be subject to OSHA's recordkeeping requirements. See OHSA Recordkeeping Handbook, U.S. Dept. of Labor, (last visited Aug. 28, 2013). Courts agree with the DOL, finding that unpaid volunteers are not protected by OSHA. Jones v. McKitterick, 215 F.3d 1337 (10th Cir. 2000) (holding that OSHA did not protect plaintiff who volunteered to work on defendant's addition in order to gain construction experience).

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So, who properly qualifies as an unpaid intern?

But, simply designating someone as an unpaid "intern" does not mean that person is, in fact, an unpaid "intern" and therefore exempt from OSHA's recordkeeping requirements. A hotly litigated issue today under another act administered by the DOL, the Fair Labor Standards Act ("FLSA") that governs minimum wage and overtime requirements, is who properly qualifies as an unpaid intern?  According to the DOL, the question of whether someone is an intern (and exempt from the FLSA) or an employee (and protected by the FLSA) involves evaluating the intern's tasks and work conditions under the following six factors that courts have applied to FLSA cases:

*           How educational-like is the "intern's" work environment/assignments;

*           Are the tasks performed primarily for the benefit of the "intern";

*           Does the "intern" work under close supervision of existing staff;

*           Does the employer derive immediate benefit from "intern's" work;

*           Would the "intern" be entitled to a job at the internship's conclusion; and

*           Is the "internship" paid or unpaid?

See Dept. of Labor, Wage and Hour Division, Fact Sheet #71:  Internship Programs under the Fair Labor Standards Act. Courts have applied the DOL factors in recent FLSA cases; Glatt v. Fox Searchlight Pictures, Inc., 11 Civ. 6784(WHP), 2013 WL 2495140, at *11 (S.D.N.Y. June 11, 2013).

Depending on your answers to the above six questions, your "intern" may in fact be viewed as an "employee" under the law. If after applying the above six-factor test, the person who you have designated as an "unpaid intern" more closely resembles an "employee," he or she would be entitled to the FLSA's minimum wage, and would have been improperly unpaid. Moreover, he or she would most likely be covered by OSHA's recordkeeping requirements because employees in businesses that affect commerce, regardless of the employees' countries of origin, are covered by OSHA. Therefore, employers should not simply assume the workers they have classified as "interns" will actually be viewed as interns under the law. Instead, employers should consult with employment counsel to carefully evaluate -- for purposes of the OSH Act and other statutory requirements such as the FLSA -- whether its interns (foreign or otherwise) have been properly categorized as "interns" as opposed to "employees."

Keisha-Ann G. Gray is senior counsel in the labor and employment law department of Proskauer in New York and co-chair of the department's employment litigation and arbitration practice group. Proskauer Associate Aaron Feuer assisted with this article.

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