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Written By: Kate Bradley, Jared Van Kirk & Emily Gant, Attorneys | Foster Garvey, Seattle
It’s Crush, and your wine club members are eager to help with harvest. Your neighbor offers to lend a hand with bottling your 2021s. A friend knows that you’re short-handed in the winery and offers to organize your case good storage. All of these folks are volunteers, hoping to support the winery as your friends, neighbors and colleagues. The question is – can for-profit wineries in Washington legally use these unpaid volunteers?
The short answer is no. While likely well-intentioned, a for-profit winery’s use of unpaid volunteers runs afoul of Washington law, as explained in more detail below.
Can members of the public volunteer with harvest, pressing, or other tasks?
We understand our clients’ and the public’s interest in getting involved with winemaking. Unfortunately, Washington law has a case of sour grapes. Under the law, volunteering is not allowed in a for-profit business. Volunteers are only allowed to work for an educational, charitable, religious, state or local government or non-profit organization.
Most wineries and vineyards are for-profit businesses, meaning that they should not have unpaid volunteers. Entities that are for-profit businesses must pay any individual working for them at least the minimum wage (sadly, compensating them with wine won’t be enough).
Do we need to pay our “interns”?
Generally, the organization must pay all persons that it “employs,” which is broadly defined to mean “suffer or permit to work.” However, nonprofits and public sector organizations typically are permitted to offer unpaid internships, even if the intern provides a service of value to the organization.
For-profit entities are a whole different varietal. Companies must first determine whether the intern is participating in a training program (and therefore not entitled to compensation) or is simply “employed.” Before unpaid interns or trainees are allowed, the U.S. Department of Labor (and Washington State) requires the company to meet criteria outlined in Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act and also described below.
The main consideration is who is the “primary beneficiary” in the intern-employer relationship. Is the
Employer/Business benefitting from the work performed or is the individual benefiting more from the educational experience? So, you’ll need to read between the wines, if you will excuse the pun. Courts have identified several factors to consider when deciding if a worker is an employee versus truly just an intern:
- The extent to which the intern and the employer clearly understand there is no expectation of
compensation. - The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by
educational institutions. - The extent to which the internship is tied to the intern’s formal education program by integrated
coursework or the receipt of academic credit. - The extent to which the internship accommodates the intern’s academic commitments by
corresponding to the academic calendar. - The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
- The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
- The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.
If there isn’t an obvious tie to an educational program, then it is hard to classify an individual as an “unpaid intern.” When a company fails to satisfy even one of these requirements, the worker is considered an employee and must be paid at least the minimum wage (essentially then you’re partners in wine).
So, what is the takeaway? If your business is a for-profit entity, then unpaid volunteers are not allowed – it would be a pour decision. If your business is a non-profit entity, then an unpaid volunteer may be possible (sip sip hooray!).
No matter what option you are considering – further guidance is a good idea to make sure there’s no wine left behind. If you have questions about paying interns or volunteers, please contact our Labor, Employment & Immigration attorneys, Jared Van Kirk (jared.vankirk@foster.com | 206.816.1372) and Kate Bradley (kate.bradley@foster.com | 206.447.7908). If you have general Washington winery questions, please contact Emily Gant (emily.gant@foster.com | 206.816.1454)