Outlawing farming internships?
By Erin Volheim
One way I like to start our organic farming internship orientation is by asking how many of our resident farmers grew up on a farm. Not one can answer “yes.” It’s for that reason that ten individuals have come from afar for an experiential education on six different small organic farms in Southern Oregon.
“The number of small farmers in the United States is declining and that population is aging, making attracting young people to sustainable agriculture vital,” states Maud Powell. As a small farmer and a co-coordinator of Oregon State University Extension Center Small Farms program, she knows hands-on the importance of farming education. She adds, “In 1997, the average age of U.S. farmers was 54.3. The proportion of farmers aged 55 and over has risen from 37 percent in 1954 to 61 percent in 1997. In contrast, the number of people, especially young people, interested in sustainable agriculture is increasing. According to the Appropriate TechnologyTransfer for Rural Areas (ATTRA) project, more than 10,000 people searched for internships in Western states on ATTRA’s database in 2006.”
This is the ironic context in whichthe Federal Labor Commission and the Bureau of Labor Industries (BOLI) has set out a snare that can strangle the small organic farmer who is dependent on intern labor. It’s called the 1938 Federal Fair Labor Standards Act (FLSA). In most circumstances this act is a protective mechanism for employees, but its application in a farming internship can be costly.
An Oregon Tilth certified farm has learned this the hard way, demonstrating the need for something within FLSA that legitimizes farming internships.
“Quandry Farm” (a name that I’ve given the farm to protect their privacy) had an apprenticeship program in existence for 23 years. They used to hire three to four “apprentices” per season, who worked 50 hours per week, unless they managed a farmer’s market, which can add another five hours. The apprentice’s work time was largely devoted to planting, caring for and harvesting 13 acres of organic vegetables. It also included time for meal preparation, canning and freezing food. Until 2007, they did not offer any seminars but centered the educational experience to exposing apprentices to all aspects of the operation; from tractor work to carpentry to accounting. They compensated apprentices with a salary of a $1000/month, room, board, a $50/month bonus for working until the end of the season, $30 extra for every farmers market they attend, and a performance bonus of up to $2000. In the realm of organic farming internships, Quandry Farm has a high-end compensation package.
In our program, interns can also work up to 50 hours a week, not including classes, and in contrast to Quandry Farm, the average stipend is $200 per month. If an intern can be classified as an employee, they must be paid minimum wage which in Oregon is now $7.95/hour, at 40 hours a week that would be $1,272/month before taxes. So under our program, if our intern’s were classified as “employees” they could file for $1,000 or more in back wages. That’s exactly what happened at Quandry Farm.
The apprentice (claimant) who filed the wage claim against Quandry Farm lived and worked with them in 2006, when the monthly salary was $900. He did not receive a performance bonus at the end of the season as his work did not merit one. He called them in January 2007 asking why, and was given a brief evaluation over the telephone, and hung up angry.
In October 2007, they received a notice that he had filed both a discrimination claim and a wage claim against them. The discrimination claim was dismissed in December, but the wage claim persisted. BOLI informed Quandry Farm in 2008 that they owed the claimant over $5600.
The central issue in the Quandry Farm case is that their “apprentice” became an “employee” in the eyes of the law. Their compensation package now needed to be equivalent in value to the hours worked. In addition, BOLI refused to give credit for the value of room and board without a signed statement from the claimant authorizing this deduction from his pay. Quandry Farm notes that they “never viewed room and board as a deduction. Rather, it was always viewed as an addition to wages.” Their lawyer found a brief mention in the BOLI rules saying that it was okay to think of it this way. All the rules requiring a signed authorization are with respect to deductions from wages, so they feel their situation did not require an authorization. The investigator however did not agree. He only said that the claimant should have been paid minimum wage plus room and board.
As an Internship coordinator, I was concerned that our program might fall into this trap. In researching this issue, I now see there is a potential course for farming internships to follow and that is through the educational mentorship component. FLSA does not ascribe a value to the educational aspect of farming internships whether it’s formalized or not, meaning you can’t consider it part of an intern’s wage compensation package if they fall into the employee category. That is the first category you must determine. The most likely way an intern may be a non-employee and exempt from wage and hour requirements is if that person meets the six-factor test set forth by the Department of Labor (DOL) for “trainee” status. According to the DOL, each of the following six criteria must be met:
1. 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.
2. The training is for the benefit of the trainees.
3. The trainees do not displace regular employees, but work under close observation.
4. The employer that provides the training derives no immediate advantage from the activities of the trainees, and on occasion his operations may actually be impeded.
5. The trainees are not necessarily entitled to a job at the completion of the training period.
6. The employer and the trainees understand that the trainees are not entitled to wages for the time spent in training.
Certainly all organic farming internships have an educational result whether formal or informal, but it’s in the conscientious design of your program where you can guarantee that your interns or “trainees” pass the six factor test. I think factor two, “the training is for the benefit of the trainees,” is key. While the courts also use these criteria to analyze a worker’s status, they do not necessarily agree with the DOL that all six factors must be met for someone to be deemed a trainee. Courts commonly find that the most important determinant is the question of who primarily benefits from the arrangement. If the school, farm or other employer is the primary beneficiary, the individuals will be considered employees, but if the interns are the ones who primarily benefit from the work experience, they will be considered trainees.
A common criticism among individuals who have done organic farming internships is that they were basically “grunts.” Many small farms are looking for a cheaper source of labor and internships have been used in this way. Organic farming is more labor intensive than conventional farming, but with a comprehensive curriculum you can refine your internship to meet the above standards and teach interns in a vocational school setting, your farm. Another strategy is to create a nonprofit organization that facilitates the curriculum for multiple farms, which in turn takes the onus off the individual farms to create their own curriculum. Internships technically need to emphasize exposing students to the field and providing valuable mentorship opportunities, not production. Put simply, interns legally cannot be regarded as a source of free labor.
Ironically, while designing this year’s program, I was initially concerned that our hardworking farmers were being drained by the additional work of mentoring, which is in direct opposition to factor two. One farm this year chose not to have interns for this very reason. Fortunately , I did not find an immediate solution to this issue, because as you can see Factor four, actually requires that interns/trainees be an impediment to the flow of work during the educational process.
Still, the first part of factor four is pretty wide open to interpretation. Surely, at first glance most farms “derive an advantage” from having an intern who participates in farm work. The wiggle room is in the adjective “immediate,” and the judge’s definition of the word “advantage.”
Having an extra hand there to help weed could be considered an immediate advantage in one respect and not of much consequence in another, especially if the intern is “impeding your operations.”
Internships of short duration, such as one or two weeks, will rarely constitute employment relationships. In most cases, internships of such short duration do not give the participant time to learn enough to perform work that benefits the employer nor will they learn enough to take the place of an employee.
For longer internships, farmers need to keep in mind that an individual can start out as a trainee, but become an employee later on. At least one court has ruled that although workers were legitimately trainees when they started, as they gained experience and began to perform meaningful work for the employer, they became employees. In that case, the employer ultimately became the primary beneficiary of the relationship.
As with most employment-related matters, the most important thing for a farm to do is to document the relationship. Farms that use interns should develop a document which notifies all parties that the primary purpose of the internship is for the intern/trainee to gain practical experience and not for the employer to obtain the benefit of the intern’s labor. The document should make clear that it is the mutual intent of the parties for the individual to be considered an intern under all applicable laws. Finally the emphasis should be on providing the intern with a practical learning experience. Keep in mind that regardless of what the written document says about the nature of the relationship and the parties’ intentions, what matters for FLSA purposes is what the intern actually does. If the intern’s duties vary from the written agreement’s terms, the intern’s actual day-to-day duties will determine whether the person is a bona fide intern/trainee or an employee. The employer must also maintain a record of the hours the employee works, even if the intern/trainee is paid a stipend.
One approach that has been used is to call interns “volunteers,” legally the following are the criteria. Those who wish an exemption for work for public entities must:
• volunteer to perform their services for civic, charitable or humanitarian purposes;
• serve without promise, expectation, or receipt of compensation except for expenses, reasonable benefits or a nominal fee that is not tied to productivity;
• provide services freely and without pressure or coercion from any employer; and offer their services solely for personal reasons or pleasure.
On paper this approach could work, but logistically it would be difficult to run a farm that depends on the whims of its interns that are operating as “volunteers.” This distinction between volunteers, intern/trainees and employees is obviously not a straightforward one. Ultimately, the law looks beyond the labels employers give individuals, or the labels individuals give themselves, and examines the nature of the relationship between the individual performing services and the employer. If the relationship resembles one of employer and employee, the relationship will generally be deemed an “employment” relationship. For example, volunteers who are given significant non-wage benefits may be considered “employees” under the law, and therefore would be entitled to the full range of protection that the employment laws allow. In addition, an employer is liable under the law for the actions (and misdeeds) of volunteers to the same extent that it is liable for the actions of employees.
It’s understandable that we have laws to protect workers from abuse, it’s another that FLSA does not encourage farming internships. Even if a farm follows the BOLI standards to the best of their understanding, they still can be put through the ringer of a wage claim. Although, these strict standards surrounding internships are newer to me, most farm internships have for decades been operating like outlaws. A reporter for the agricultural paper Capital Press recently asked a BOLI representative if they intend to go after farm apprenticeships. She said they are only responding to individual wage claims at this time. Still, as Quandry Farm points out “there is no assurance that they will maintain that practice.”
Erin Volheim lives, breathes and writes in Southern Oregon.