New Jersey employment laws protect workers’ rights in multiple areas, including wages and hours of work, discrimination and harassment, and retaliation for reporting suspected wrongdoing by an employer. Many of these laws apply specifically to “employees,” but no single definition of “employee” exists. Some statutes only cover paid employees, while others also apply to independent contractors, unpaid interns, or volunteers. The legal status of unpaid workers, including both interns and volunteers, has been the subject of multiple court battles. The New Jersey Appellate Division recently held that the state’s whistleblower statute, the Conscientious Employee Protection Act (CEPA), does not apply to unpaid volunteers. Sauter v. Colts Neck Volunteer Fire Co. No. 2, No. A-0354-15T1, slip op. (N.J. App., Sep. 13, 2017). In light of this decision, it is worth reviewing how various employment statutes in New Jersey view unpaid volunteers and interns.
“Volunteer” Versus “Intern”
Some laws make a distinction between volunteers and interns. Generally speaking, an internship provides some form of educational benefit to the worker, possibly including course credit at an educational institution, and it may be paid or unpaid. Even when an internship is unpaid, the worker is considered to gain an educational benefit. A volunteer position, on the other hand, is usually undertaken for primarily altruistic reasons, or at least without the expectation of any specific return.
Wage and Hour Law
Both federal and state wage and hour laws require employers to pay their workers for the work they perform, but they allow exceptions for unpaid interns. The U.S. Department of Labor identifies six criteria that a job must meet to qualify as an unpaid internship under the Fair Labor Standards Act (FLSA), including educational benefit for the intern and non-displacement of regular employees. New Jersey’s Wage and Hour Law (NJWHL) uses an eight-part test that specifically requires coordination between the employer and the intern’s school. N.J.A.C. § 12:56-18. Positions that do not meet these requirements must be paid.
Volunteers, one might assume, do not expect pay for their work by definition. The NJWHL excludes volunteers from its definition of “employee.” N.J.A.C. § 12:55-1.1. Employers may not, however, disguise regular work as volunteer services. Under the FLSA, an employee of a public agency cannot volunteer to perform the same function that they do in their regular job for the same agency. 29 U.S.C. § 203(e)(4)(A), 29 C.F.R. § 553.101(d).
The New Jersey Law Against Discrimination (NJLAD) and Title VII of the Civil Rights Act of 1964 prohibit discrimination and harassment by employers on the basis of factors like race, sex, religion, etc. The Director of the Department of Law & Public Safety’s Division of Civil Rights has stated that the NJLAD applies to unpaid interns and volunteers in the workplace, although the statute does not expressly provide for this.
As for Title VII, courts have generally held that unpaid interns are not covered by the statute. See, e.g., O’Connor v. Davis, 126 F.3d 112 (2d Cir. 1997). In 2012, however, the Equal Employment Opportunity Commission (EEOC) identified circumstances in which unpaid workers could qualify as “employees” under Title VII. At least one federal court has also recognized unpaid volunteers’ right to assert claims like sexual harassment. Volling v. Antioch Rescue Squad, 999 F.Supp.2d 991, 997 (N.D. Ill. 2013).
If you need to speak to a wage law attorney about a dispute in New Jersey or New York, contact the Resnick Law Group today online, at 973-781-1204, or at 646-867-7997.
More Blog Posts:
Unpaid Intern Sues Celebrity Twins Under State Wage and Hour Laws, The New Jersey Employment Law Firm Blog, September 25, 2015
Unpaid Intern Lawsuits Seek to Enforce Wage and Hour Laws, The New Jersey Employment Law Firm Blog, May 9, 2013
New Jersey Workers’ Wages Explained, Violations Commonplace, The New Jersey Employment Law Firm Blog, December 16, 2011