Are There Interns in Israel?

According to the Minimum Wage Law, any worker over the age of 18 is entitled to receive the minimum wage and a part-time employee receives a pro-rata minimum wage. This right cannot be waived, so that a person cannot volunteer to work for free.

In one case, the Court rejected an employer's claim that a Chinese worker waived certain rights because the Court determined that he didn't understand the waiver agreement (he was illiterate in Chinese as well as in Hebrew.)

There is a post about a law firm that "employed" a legal intern for no pay at the IsraPay Blog. He quotes the National Labor Court as follows:

Article 12 of the minimum wage law, 1987, which is a Basic law which cannot be waived or made to be Dependent on other factors. The minimum wage law was meant to prevent employers from taking advantage of groups of workers as well as protect employees from themselves and prevent instances where an employee agrees to work for free because he is in need of a professional mentor.The court determined that even if an intern agrees to work without pay, despite this "agreement" the employer must pay the intern at least minimum wages. This despite the impression that the employer may have that the employee would be willing to work without pay. Even if the employee didn't act wholeheartedly, and even if he sued the employer after leaving his position, this cannot demeanor his rights by law.

The court further determined that in a work relationship between a mentor and an intern, the mentor will always have the upper hand. From the outset this is not an equal relationship. The intern is like a student who approaches his master, as the employer oversees his student's professional manner, guides him and needs to authorize the internship, thereby opening doors to his profession future by allowing him access to the Israeli bar association.

As such, even if the intern agrees to work without pay or for partial pay, this is interpreted as exploitation of the distress of the weak by the employer and not as an insincere action by the employee.

Furthermore, and on the other hand it would be insincere action on the part of the employer to imply or suggest that an employee work for free or at a reduced rate and even if he were presented with such a suggestion from the employee, he should turn it down completely.

It is a given that the wording of the law will not accept a "waiver" of basic employee rights, as minimum wage, even if implied, suggested or agreed upon. It has no consequence whether it is an oral or written agreement or even an understanding or implication because the employee didn't complain about not receiving pay or receiving less than minimum wages.

It also does not matter whether this was done before, during or after employment.

The court rejected the appeal and charged the employer with the court fees as well.

According to the Labor Law website Ovdim here and here, some of the factors that imply that a worker is a "volunteer" include:

• She works without pay.
• She works without an employment contract.
• She has no set days or hours.
• She has no set period of employment.
• She can quit at any time.

Another case of an employee being mislabeled as a "volunteer" appears here.

In America, interns generally work for a summer or for a year while they are in school, sometimes for no pay. It is considered a good way for college students to gain valuable experience and provides employers with a way to evaluate future talent. The New York Times has run a few articles over the last few years about the competitive market for internships. One article documented that some students even pay services to help them land internships. One examined whether interns were being exploited as a source of cheap labor to do menial tasks. Another one, discussed the issue in light of the economic downturn. It contained a link to this Fact Sheet from the Obama administration with the following guidelines to help determine if one is an intern or employee:

The Supreme Court has held that the term "suffer or permit to work" cannot be interpreted so as to make a person whose work serves only his or her own interest an employee of another who provides aid or instruction.  This may apply to interns who receive training for their own educational benefit if the training meets certain criteria.  The determination of whether an internship or training program meets this exclusion depends upon all of the facts and circumstances of each such program. 

The following six criteria must be applied when making this determination:   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 all of the factors listed above are met, an employment relationship does not exist under the FLSA, and the Act’s minimum wage and overtime provisions do not apply to the intern.  This exclusion from the definition of employment is necessarily quite narrow because the FLSA’s definition of “employ” is very broad.

While Israeli law seems concerned about the issue of exploiting workers by labelling them as "volunteers" there seems to be a loophole allowing foreigners to work for free as volunteers. In particular, the Supreme Court of Israel itself employees volunteer attorneys from abroad as Foreign Law Clerks.

*In full disclosure, I myself was a Foreign Law Clerk at the Supreme Court. I enjoyed it and I fully consented to work for six months without pay (except for reimbursement for travel expenses.)*

Now, I understand that a government is mostly concerned with protecting its own citizens from exploitation but to 1) allow foreign workers to be "exploited" 2) by no less than Supreme Court of Israel seems strange. I have not yet found an explicit provision in the Israeli Law allowing employers to employ foreigners as volunteers. If you know anything about this please enlighten me.