The U.S. Department of Labor's Wage and Hour Division (WHD) has developed the six

factors below to evaluate whether a worker is a trainee or an employee for purposes of

the FLSA:

1. The training, even though it includes actual operation of the facilities of the

employer, is similar to what would be given in a vocational school or academic

educational instruction;

2. The training is for the benefit of the trainees;

3. The trainees do not displace regular employees, but work under their close

observation;

4. The employer that provides the training derives no immediate advantage from the

activities of the trainees, and on occasion the employer's operations may actually

be impeded;

5. The trainees are not necessarily entitled to a job at the conclusion of the training

period; and

6. The employer and the trainees understand that the trainees are not entitled to

wages for the time spent in training.

If all of the factors listed above are met, then the worker is a "trainee", an employment

relationship does not exist under the FLSA, and the FLSA's minimum wage and overtime

provisions do not apply to the worker. Because the FLSA's definition of "employee" is

broad, the excluded category of "trainee" is necessarily quite narrow. Moreover, the fact

that an employer labels a worker as a trainee and the worker's activities as training and/or

a state unemployment compensation program develops what it calls a training program

and describes the unemployed workers who participate as trainees does not make the

worker a trainee for purposes of the FLSA unless the six factors are met. Some of the six

factors are discussed in more detail below.

Training Similar to Vocational School/The Primary Beneficiary of the Activity