Unpaid internships are popular in Massachusetts, but they are often illegal. Massachusetts law requires all workers to be paid at least the state minimum wage unless an exception applies. There are five exceptions: (1) someone providing professional service; (2) agricultural or farm workers; (3) people being rehabilitated or trained under rehabilitation or training programs in charitable, educational or religious institutions; (4) members of religious orders; and (5) outsides sales workers who don’t make daily reports or visits to the office or plant of their employer. See M.G.L. c. 151, s. 2. If you don’t fit into one of the exceptions, you must at least be paid the state minimum wage for your time working as an intern.
What Is Professional Service?
Massachusetts minimum wage regulations (PDF) define “professional service” by referencing the federal regulations regarding overtime-exempt professional workers.
These basically state that a professional worker must mostly do work requiring advanced knowledge, predominantly intellectual in character, which includes consistent exercise of discretion and judgment. The advanced knowledge must be in a field of science or learning, or be of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor. The advanced knowledge must also be the kind usually acquired after a long course of specialized intellectual instruction.
There is no Massachusetts case specifically interpreting what “professional service” is under Massachusetts minimum wage law. However, given the regulation, the Massachusetts courts would likely look to the body of case law interpreting the federal professional exemption. Also, the Massachusetts Supreme Judicial Court stated this in another context:
“A `professional’ act or service is one arising out of a vocation, calling, occupation, or employment involving specialized knowledge, labor, or skill, and the labor or skill involved is predominantly mental or intellectual, rather than physical or manual…. In determining whether a particular act is of a professional nature or a `professional service’ we must look not to the title or character of the party performing the act, but to the act itself […] that membership in a profession has traditionally been recognized as requiring the possession of special learning acquired through considerable rigorous intellectual training.” Roe v. Fed. Ins. Co., 587 Mass. 214 (1992).
A lawyer or doctor would clearly be providing professional services, but most interns, especially those in or right out of college, would likely not be.
What Is a Training Program in Charitable, Educational or Religious Institutions?
First of all, Massachusetts law differs from federal law when it comes to training programs. Under federal law, as long as six factors are met, a training internship can be unpaid even though it’s with a for-profit company. Under Massachusetts law, only training programs through charitable, educational or religious institutions can be unpaid. Even if the internship is through a charitable, educational or religious institution, it must be a true training program.
There is a list of six characteristics of a training program under federal law. These factors are used by the Massachusetts Division of Occupational Safety (“MDOS”), the entity which administers the Massachusetts minimum wage law, to determine if someone working with a charitable, educational or religious institution can be legally unpaid. These are the factors:
1. The internship is similar to the training which would be given in a educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under the close supervision of the existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern, and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and intern understand that the intern is not entitled to wages for the time spent in the internship.
The second and fourth factors above call into focus what an unpaid internship is supposed to be all about. An internship is supposed to be about the intern’s benefit and not about free work for the employer. Even if an internship is with a charitable, educational or religious institution, it must be to help and train the intern. If it is not, it must be a paid internship.
If you have been an unpaid intern recently in Massachusetts, it makes sense to examine this test. Many unpaid interns will be entitled to recovery three times the state minimum wage ($38.25/hour as of Jan, 2021, figure will adjust in the future) for their work and attorneys’ fees and costs. These cases can also often be brought on a class action basis. Feel free to get in touch via firstname.lastname@example.org or 617-338-9400 if you are interested in exploring bringing a lawsuit for unpaid wages arising out of an internship.