"Kitchen Tryouts Start Today" . . . Or Maybe Not


Hospitality employers sometimes wonder whether it's possible for individuals to participate in kitchen activities as unpaid interns or on a tryout basis, typically as chefs or cooks. Among the many questions this raises is whether such people would be "employees" who are subject to the federal Fair Labor Standards Act's requirements.

The Ground Rules

Passed in 1938, the FLSA is a strict, inflexible, unforgiving law that is in many ways poorly-suited to the modern working world. One of the law's main purposes is to see that those it covers are paid the sums it requires. Whether people are found to be FLSA employees depends upon the so-called "economic realities" revealed by all of the facts and circumstances of a situation. If individuals are really employees, they are not allowed to agree to forgo the wages they are entitled to, whether they do so expressly or by acquiescing in being treated as non-employees.

No single consideration necessarily makes the difference, but the U.S. Labor Department and the courts tend to find "employee" status when people perform activities that result in an immediate economic benefit to the recipient of their efforts. For example, if individuals do things that result in labor-cost savings for a business or that help it make money, a decision maker might very well see this as FLSA-covered employment.

What About Interns

In limited situations, a person can be a non-employee intern for FLSA purposes. DOL and the courts have, for instance, sometimes concluded that students were not employees of the entity permitting them to conduct internships called for by a school's curriculum. Generally speaking, whether interns are FLSA employees is decided against the background of six factors...

Please see full article below for more information.

LOADING PDF: If there are any problems, click here to download the file.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Fisher Phillips | Attorney Advertising

Written by:


Fisher Phillips on:

JD Supra Readers' Choice 2016 Awards
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.