WACEな耳寄り話題! バックナンバー 

Aug.01, 2009


Intern , Trainee(研修生)が社員として考慮されるかどうかは、微妙なポイントですけれど、過去にもJ1visaについて、国務省(Dept of State)発信の情報をかなり多くを提供致しました。

下記にDept of Labor(日本の厚労省に相当するか?)の立場からJ1visaに関連する情報を列記します。

受入ホスト企業へも同様に重要な情報ですので、是非参考に
してください。

Department of Labor Requirements

The six-factor test set forth by the Department of Labor (DOL) for "trainee" status. According to the DOL, each of the following six criteria must be met:

1. 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;
2. the training is for the benefit of the trainees;
3. the trainees do not displace regular employees, but work under close observation;
4. 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;
5. the trainees are not necessarily entitled to a job at the completion 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.

An trainee may receive a nominal stipend which will not destroy trainee status

Trainee (non-employee status)

The factors that will establish a trainee non-employee status would be:
1. Having a set program, the T/IPP, which includes an academic component and a host-provided training component - beyond just “supervision” by the host company; and
2. The arrangement is for a set period and the person is not entitled to a job at the end of it.

Summary

If all of the above conditions for non-employee status are met the following is true:

1. Trainee must be paid a stipend and cannot fill out a timesheet. Nor may the host company track the hours worked. The stipend is not based on hours worked.
2. Stipend is subject to federal and state tax.
3. Stipend is exempt from social security and Medicare tax (J1 exemption)
4. Stipend does not consider the trainee/intern to be designated as an employee
a. Employer not subject to worker’s compensation insurance
b. Employer not subject to provide benefits of any kind
c. Employer not subject to FSLA
5. Employer can deduct up to $451.89 a month from the intern stipend, if employer is paying housing costs. (differs by state)
6. Housing benefit to intern is not taxable if required as a condition of program.

If the above conditions are not met the following is true:

1. The must be classified as an employee and paid the minimum wage.
2. Wage is subject to federal and state tax.
3. Wage is exempt from social security and Medicare tax (J1 exemption).
4. Wage considers the trainee/intern to be designated as an employee
a. Employer is subject to worker’s compensation insurance.
b. Employer is subject to provide benefits per Company policy including State and Local. (ex. San Francisco health care ordinance)
c. Employer is subject to FSLA.
5. Employer can deduct up to $451.89 a month from the intern wage, if employer is paying housing costs.
6. Housing benefit to intern is taxable.


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