"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...

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