Question: Is a “nonprofit” religious organization subject to the same 6 criteria as described for the “for-profit” organization (as explained by the Department of Labor)?
Answer from the experts at HR.BLR.com:
The Department of Labor (DOL) Fact Sheet #71 addresses interns in “for profit” private employers and provides six criteria for determining whether the interns should be paid employees or may be treated as unpaid interns. For most for-profit employers, the DOL generally assumes that the intern is performing work in place of an employee and should be paid as such, so it is up to the private employer to prove otherwise.
Nonprofit and public sector employers have greater latitude when it comes to interns because, in essence, an unpaid intern for a nonprofit or public sector organization is generally considered a volunteer. Thus, interns who volunteer for non-profit religious organizations are not subject to the for-profit intern criteria.
The DOL has long recognized that individuals may volunteer their services without receiving pay in limited circumstances, typically involving the performance of charitable activities for non-profit organizations such as for public service, religious, or humanitarian objectives.
Specifically, “Individuals who volunteer or donate their services, usually on a part-time basis, for public service, religious, or humanitarian objectives, not as employees, and without contemplation of pay, are not considered employees of the religious, charitable, and similar not-for-profit organizations which receive their services.” (See http://webapps.dol.gov/elaws/whd/flsa/docs/volunteers.asp.)
In order to maintain the volunteer exception for an unpaid nonprofit intern, you must be cautious not to have the unpaid intern displace paid workers or perform work that would otherwise typically be performed by employees.
The DOL ordinarily considers the following factors in determining if a person is truly a volunteer and not an employee: (1) the receipt of any benefit by the organization for which the services are performed; (2) the time spent in the activity (the activity is less than a full-time occupation); (3) whether the services are of the kind typically associated with volunteer work; and (4) whether the individual does not expect pay for the services. See, e.g., Tony and Susan Alamo Found. v. Sec’y. of Labor, 471 U.S. 290 (1985). See also DOL Fact Sheet #14A “Non-Profit Organizations and the Fair Labor Standards Act,” available at https://www.dol.gov/whd/regs/compliance/whdfs14a.pdf.
For additional discussion on interns in the nonprofit sector, you may find this article helpful.