Here at the Law Office of Vincent Miletti, Esq. and the home of the #UnusuallyMotivated movement, we take pride as a resilient and dependable legal services firm, providing such services in both a traditional and online, web-based environment. With mastered specialization in areas such as Employment and Labor Law, Intellectual Property (IP) (trademark, copyright, patent), Entertainment Law, and e-Commerce (Supply Chain, Distribution, Fulfillment, Standard Legal & Regulatory), we provide a range of legal services including, but not limited to traditional legal representation (litigation, mediation, arbitration, opinion letters, and advisory), non-litigated business legal representation and legal counsel, and unique, online legal services such as smart forms, mobile training, legal marketing, and development.

Still, here at Miletti Law®, we feel obligated to enlighten, educate, and create awareness, free of charge, about how these issues and many others affect our unusually motivated® readers and/or their businesses. Accordingly, to achieve this goal, we have committed ourselves to creating authoritative, trustworthy, & distinctive content. Usually, this content is featured as videos posted on our YouTube Channel https://www.youtube.com/channel/UCtvUryqkkMAJLwrLu2BBt6w and blogs that are published on our website WWW.MILETTILAW.COM. With that, the ball is in your court and you have an effortless obligation to subscribe to the channel and sign up for the Newsletter on the website, which encompasses the best way to ensure that you stay in the loop and feel the positive impact of the knowledge bombs that we drop here!

As the authoritative force in Employment Law, it only seemed right to introduce one of the many upcoming series in which we introduce a variety of topics that looks to educate and deliver in a manner that only Miletti Law® can. To that end, this blog is Part X of our ongoing series on “Life Sciences Industry Guide for Labor and Employment,” in which we review the basics and issues of concern to employers engaged within the life sciences industry. In Part IX of the series and our blog titled “Independent Contractor Concerns within the Life Sciences Industry,” we mentioned that employers within the life sciences industry engage in the common practice of using independent contractors as a way of supplementing the workforce. As a result, employers must understand that in order to avoid typical pitfalls, one must determine whether a worker is working as an independent contractor or as an employee. Making such a determination is critical because, for example, unlike workers working as employees, it is the responsibility of independent contractors to undertake their own tax reporting and withholding, but they do not always do so.

As a continuation of our discussion, this blog is titled “Trainee, Volunteer, & Intern Concerns in Life Sciences Industry” and is an overview of issues of concern that employers within the life sciences industry have to consider when dealing with trainees, volunteers, and interns.

Trainee, Volunteer, & Intern Concerns within the Life Sciences Industry

Just as they do with independent contractors, employers within the life sciences industry engage in the common practice of using trainees, volunteers, and interns as a way of supplementing the workforce. Accordingly, in order to avoid potential liability for overtime payments and unpaid wages, it is crucial to ensure that these individuals have been appropriately classified. In fact, some states even recognize rest periods and meals for these individuals. Another notable issue is that pursuant to Fact Sheet # 14A: Non-Profits and the FLSA (Fair Labor Standards Act), certain volunteers who perform services for local or state governments or non-profit organizations associated with civic, charitable, religious, or other humanitarian issues are exempted from overtime and minimum wage under the FLSA.

Elsewhere, for employers engaged in for-profit activities to avoid liability for improper misclassification of unpaid workers under the FLSA, issues other than these narrowly limited safe harbors, which include what one asks of trainees and unpaid interns, must be carefully scrutinized. Technically, a court is likely to challenge a student or trainee’s nonemployee status if:

  • The individual is being paid
  • On balance, the employer or business has a higher advantage of benefiting from the relationship as compared to the employee-and-
  • The services or work being done by the individual amounts to something as similar as the business or employee would benefit from

If it is established that, based on the relationship’s “economic reality,” the employer, but not the trainee or intern, is the “primary beneficiary” of the services provided, then a court may characterize the relationship as that of employer/employee. In this regard, an employer should accordingly assess a number of factors such as:

  • Paid job at the end of internship – it is the understanding of both the employer and intern that the program would be carried without, at the end of the program, entitlement to a paid job.
  • Work done by intern – while benefiting from significant educational training, the intern does not displace the work done by paid employees; rather, it just complements.
  • Duration of internship – the duration of the program is limited to the period in which the intern gains significant educational training from the internship.
  • Academic commitments – by corresponding to the school/learning institutional calendar(s), the intern’s academic commitments are accommodated by the internship program.
  • Educational program – through integrated coursework of an academic credit receipt, the intern’s formal education program and the internship program are tied.
  • Training – including a variety of hands-on training offered in educational institutions, the intern benefits from training that would be the same as that provided in an academic setting.
  • Compensation – the employer and intern have an understanding that no compensation would be expected or provided to the latter. However, any compensation promised, whether implied, suggested, or expresses, would mean that the intern is an employee and vice versa.

In Part XI of this series and our blog titled “Trade Secret Protection & Restrictive Covenants in Life Sciences,” we shall move the discussion forward by hammering on what the law says about restrictive covenants and trade secret protection in the life sciences industry.

In the meantime, stay tuned for more legal guidance, training, and education. In the interim, if there are any questions or comments, please let us know at the Contact Us page!

Always rising above the bar,

Isaac T.,

Legal Writer & Author.