Five Tips to Prevent your Intern from Being Considered an Employee
The internship agreement is an excellent way for students and pupils to gain practical experience during their education. Companies are happy to use the help of interns and may choose to pay them an internship allowance.
However, companies must be careful when making arrangements for an internship. There is a risk that an internship agreement may still be considered an employment contract. In that case, the door to employment law protection opens. For the intern, this means they are entitled to (minimum) wage, accrue vacation days, receive pay during illness, etc. It is therefore important to ensure that an internship agreement does not become an employment contract. But how do you do this?
The Difference between Intern and Employee
To qualify as an employment contract, the following must be present: (personal) work, wages, and authority. Work is productive work that represents a certain economic value for the employer. This is where there is an important difference with the internship agreement, because its primary purpose lies in developing the intern’s personal knowledge and experience. Furthermore, case law shows that internship activities must be performed with a view to completing an education. However, this does not mean that if an intern is simply following an education, the risk is immediately eliminated. It was found that an intern who performed activities as part of an education still did not have an internship agreement. The intern often worked independently and no learning objectives had been formulated prior to the ‘internship’, nor was there structural supervision of the intern.
Five Practical Tips
Tip 1: For safety’s sake, the advice is to only enter into an internship agreement with an intern who is following an education. Therefore, do not enter into an internship agreement with a student/pupil who has already completed their education. In that case, there is a high risk that the agreement will not qualify as an internship agreement.
Tip 2: Clearly establish a connection in the internship agreement between the work the intern performs and the education they are following, including by stipulating that the internship agreement will end if the education ends (prematurely). Have the model internship agreement drafted by a professional party.
Tip 3: Establish concrete learning objectives at the beginning of the internship and plan evaluation meetings where the intern receives feedback. This way, the learning character is truly reflected in the execution.
Tip 4: Ensure structural supervision of the intern from the company. Independent tasks for the intern may occur occasionally, but the distinction from ‘regular’ employees must be clear.
Tip 5: Ensure that the intern does not receive wages, but only a (much lower) ‘expense allowance’ and do not call this allowance wages in the agreement (even though you are often still liable for payroll tax on this allowance).
Do you have questions or would you like to respond? You can do so via info@wesselvanderlans.nl.
The utmost care has been taken with this blog. However, it only describes some main points and does not aim to be complete. Therefore, no rights can be derived from this blog.
