Episode 49 of the Farm Commons podcast is titled “Legally sound internships on your farm.” “I’ve been at Farm Commons for a little over four years now, and over that time we’ve gotten the questions over and over again in various forms, but what the questions boil down to are: Can I have interns? And do I need to pay my interns? Can I call my interns ‘interns’ even if I pay them? So, a lot of curiosity around interns on the farm,” said Eva Moss, education program director at Farm Commons.

The mission of Farm Commons is to empower agricultural communities to resolve their own legal vulnerabilities within an ecosystem of support. Each of their podcasts explores real legal issues faced on farms every day, providing knowledge and tangible solutions to help grow thriving ag businesses.

“The answer to these questions is actually quite simple, legally speaking. But we need to address the mismatch of understanding between the mind of the law and the mind of the business owners and how they understand interns,” Moss said. Unfortunately, there is a disconnect between what is required by the law and how some farms approach internships.

According to Rachel Armstrong, a lawyer and executive director at Farm Commons, lawsuits regarding farm internships began to appear about a decade ago. “We can find lawsuits where hundreds of interns have sued their employers and won millions of dollars in back wages because those internships were not structured correctly,” Armstrong said.

Essentially, the law doesn’t care if a position is called an internship; it cares about the nature of the work being performed at for-profit businesses. To demonstrate this legal concept, Armstrong presented theoretical internships on Farm A and Farm B, both for-profit businesses.

Farm A requires the intern to show up on harvest days to contribute to getting a crop out of the ground. The intern is also responsible for washing the crop in the pack shed, putting it in boxes and meeting the farm’s standards for how the crop is packed. They may also be responsible for marketing the crop. And it’s possible that this work is done very slowly and even poorly.

Farm B’s intern, on the other hand, shows up between classes, follows the farmer around and observes the farmer. They may be offered an opportunity to try harvesting the crop. After the field work, the intern goes back to the office to interview the farmer for a school essay.

“Both of these people might be called interns,” Armstrong said, “but we have two completely different legal things going on here. They might both have the title intern, but the thing we need to focus on is that one of these people is likely to be an employee for whom employment laws must be followed and the other is not.”

According to Armstrong, legally speaking, anyone that does the work of a for-profit business is considered an employee by default. Farm A’s intern was doing the work of a business that grows and sells vegetables, regardless of pace or quality. Farm B’s intern was not really doing the work of that business. Because Farm A’s intern is doing the work of the for-profit business they, by law, are entitled to worker protections like minimum wage, overtime and worker’s compensation.

To help clarify what is and is not the work of a business, Armstrong used the example of gleaning – collecting produce from a field that is not marketable to donate to a food pantry, for example. “If someone is harvesting crops that the farm was never going to pick up in the first place, that’s not really the work of the farm, right?” Armstrong asked.

Legally speaking, there is a definition for intern in the federal Department of Labor’s Fact Sheet 71. It details seven legal requirements used to define an intern, and according to Armstrong, three of the criteria are problematic for farms.

First, the intern should be enrolled in a formal education program such as high school or college. Second, they need to be receiving a significant, broadly applicable educational benefit – “so, not just learn how your farm works but learn how lots of farms work and general theories about how farms work,” Armstrong said. The third (and most challenging) criteria is that to be considered a legal internship, that intern cannot be displacing an employee. In essence, it means that no harm would come to the business if that intern was not there and their role is superfluous.

Nonprofits, on the other hand, have more freedom when it comes to interns. Nonprofits have the legal right to bring on volunteers who may be unpaid or paid under minimum wage that perform the work of the farm. Armstrong pointed out, however, that this freedom is not unlimited.

“I can put a little bow on this by bringing us back around to the point that you can give your workers any job title you want as long as you’re following the law’s obligations. In most cases, interns are doing the work of the farm, and thus, employment laws apply,” Armstrong said.

For more information visit FarmCommons.org.

by Sonja Heyck-Merlin