Nurturing and growing a cohesive staff is crucial to running a functional school or center. Developing your staff and growing from within or hiring in new blood and bringing in new ideas can both enhance the quality of your program.

Finding new staff sometimes leads growing centers to secondary educators - community colleges and other similar institutions - for "farm team talent."  These new ECE teachers, at times, need hours in a classroom in the same way as public teachers regulated by the Department of Education.  Allowing those ECE teachers access to your classroom to apprentice and learn the trade of ECE becomes both appealing and attractive to ECE teachers and centers.  As allowing these ECE teachers access to a classroom feels like service to the profession and not a new hire, these teachers often go unpaid.

Enter the Federal Department of Labor. The Federal Department of Labor regulates minimum wage and overtime. They expect you to pay all "employees" minimum wage. But, the definition of "employee" can be more difficult to agree upon than it initially seems.

In evaluating whether a teacher is an employee who must be paid, or an intern who can work for free, questions need to be answered.  In particular, consider the following:
<ul>
	<li>What exactly your interns do for you?  Are they merely in training or do they actually perform services similar to other employees?</li>
	<li>Are there people classified as employees who perform the same services as the interns?</li>
	<li>Is the company's administrative burden increased as a result of having interns (i.e., is there a lot more paperwork and training time)?</li>
	<li>Does the company receive client fees or other compensation as a result of the interns' services?  For instance, do the interns lead groups for which the company receives client fees, or are the interns merely sitting in on groups led by paid employees?</li>
	<li>What is the format of the training?  Do you provide specific lessons and/or classes to the interns?</li>
	<li>Who benefits more from the interns' services – the interns or the company?</li>
	<li>Do you have written documentation explaining that the interns will not receive compensation and are not entitled to a job at the end of the training period?</li>
	<li>When the interns are performing services for the company, how closely are they supervised?  Is it more than the regular employees or about the same?</li>
</ul>
In <em>Reich v. Parker,</em> 992 F.2d 1027 (10th Cir. 1993), the Tenth Circuit Court of Appeals (the court of appeals that sits over the Colorado Federal trial court and under the U.S. Supreme Court), stated that if all six of the following criteria apply, the trainees are not employees within the meaning of the Act and are not, therefore, entitled to minimum wage and overtime:
<ul>
	<li>The training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in a vocational school;</li>
	<li>The training is for the benefit of the trainee;</li>
	<li>The trainees do not displace regular employees, but work under close observation;</li>
	<li>The employer that provides the training derives no immediate advantage from the activities of the trainees and on occasion his operations may actually be impeded;</li>
	<li>The trainees are not necessarily entitled to a job at the completion of the training period; and,</li>
	<li>The employer and the trainees understand that the trainees are not entitled to wages for the time spent in training.</li>
</ul>
If these factors can be met, interning ECE teachers may actually be exempt from the DOL's requirements that all employees be paid minimum wage. To avoid liability for the practice of using interns, consider using an "intern agreement" that clearly states that no compensation will be paid. Also, partner closely with a school for school credit - if a trainee can earn even a small amount of credit, then the training is for the benefit of the trainee. Lastly, those employees cannot be used to meet ratio or other staffing requirements.

<em><a title="Laura J. Hazen" href="http://www.irelandstapleton.com/people/attorneys/bio?id=43&amp;name=Laura%20J.%20Hazen" target="_blank">Laura J. Hazen</a> is a director at Ireland Stapleton Pryor &amp; Pascoe, PC. In her employment practice, Hazen provides day-to-day advice and coaching to public and private companies on various employment matters. She also has an active litigation practice where she concentrates on representing business in all aspects of complex business and employment disputes.</em>

<em>You can contact Laura by email at <a href="mailto:lhazen@irelandstapleton.com"> lhazen@irelandstapleton.com</a> or by phone at 303-623-2700.</em>

<em>This article is intended as a general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should consult an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.</em>

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