At midnight on December 31, 2011, a Washington State law exempting farm interns from the state’s minimum wage requirements expired. It is now illegal for unpaid interns to work on farms in the state, depriving farmers an economical opportunity to provide young, aspiring farmers with on-the-job training. I am terrible at segues, so lets just say we should use it as an excuse to talk about labor law on the farm.

A farm owner is a business employer and must therefore understand how to properly employ people. To do that every farm owner needs to understand the interplay between federal and state labor laws.

The Fair Labor Standards Act is the federal law that guarantees a minimum wage for employees. The Act defines ’employment’ as any activity conducted by a person who is “suffered or permitted to work”, and anyone who fits the definition is entitled to receive the federal minimum wage. “Suffer or permit to work” is a broad definition of labor, and it includes almost any imaginable activity that is not specifically exempt by another federal law or regulation.

There is just such an exemption for what we would call “interns” and apprentices. The term “suffer or permit to work” cannot be applied to a person whose work serves only his or her own interest as an employee of another who provides aid or instruction. This means interns, who work in exchange for training and education. Under federal labor law, the following criteria are used to determine whether an employee is or is not an intern exempt from minimum wage:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;

2. The internship experience is for the benefit of the intern;

3. The intern does not displace regular employees, but works under close supervision of 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 the intern understand that the intern is not entitled to wages for the time spent in the internship.

If the conditions of work qualify for each of these criteria, the work is what we would call an internship, and is therefore generally exempt from federal minimum wage rules.

It is important to note that these criteria only apply towards compliance with federal law. States may have their own definitions of minimum wage, internships, and what it means to be employed. Because of the way our federalism works, however, states cannot mandate definitions of these terms that guarantee protection lower than those afforded by federal law. For example, a state may have a higher minimum wage than the federal level, but not one that is lower. A state may also require that employees fitting the description of “intern” receive a minimum wage, even though they qualify for the federal minimum wage exemption under the federal internship criteria.

Washington is an example of just such a state, which mandates pay for interns that would otherwise qualify as exempt under federal rules. The state construes the term “suffer or permit to work” more broadly than the federal government, and interns are not specifically exempted from the minimum wage law. Since the expiration of the farm intern exception, it is now illegal for this class of agricultural interns to work in exchange for training and education. A farm may be able to get creative with the remaining exceptions in order to get interns on the farm, but those would be risky strategies even with the guidance of an attorney. The safe bet is to just comply with the law.

On the other hand, California is an example of a state that adheres fairly closely to the federal guidelines for determining exemption to minimum wage.

Farm internships are both a national and a very local issue. Though a typical farm intern is likely exempt from federal minimum wage laws if he or she meets the criteria, as an employer you still need to check with your state to see if you get a pass there too. The information should be easy to come by on your state’s department of labor webpage, or you can give them a call and find out from them if you are still uncertain.

This article also appears on my buddy Taylor Reid’s awesome resource compendium,