The U.S. Supreme Court has held that the words "to suffer or permit to work," as used in the Fair Labor Standards Act (FLSA) to define "employ," do not make all workers employees. For example, workers who work for their own advantage on the premises of another without any express or implied compensation agreement are not employees under the FLSA.

Whether trainees or students are employees of an employer under the FLSA will depend upon all of the circumstances surrounding their activities on the premises of the employer. If all of the following criteria apply, the trainees or students are not employees within the meaning of the FLSA:

• 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;

• The training is for the benefit of the trainees or students;

• The trainees or students do not displace regular employees, but work under close supervision;

• The employer that provides the training receives no immediate advantage from the activities of the trainees or students and, on occasion, his operations may even be impeded;

• The trainees or students are not necessarily entitled to a job at the conclusion of the training period; and

• The employer and the trainees or students understand that the trainees or students are not entitled to wages for the time spent in training.

In Delaware, as in other states, the definition of 'employ' under the Fair Labor Standards Act (FLSA) is informed by the U.S. Supreme Court's interpretation that not all workers are considered employees. Specifically, individuals who work for their own benefit without a compensation agreement are not deemed employees under the FLSA. When it comes to trainees or students, their status as employees depends on the circumstances of their activities at the employer's premises. The FLSA outlines six criteria to determine if trainees or students are not employees: the training is similar to vocational school training, it benefits the trainees or students, they do not replace regular employees and are closely supervised, the employer does not gain immediate advantage from their activities, there is no job entitlement post-training, and there is a mutual understanding that the trainees or students are not entitled to wages during training. If all these conditions are met, trainees or students in Delaware would not be considered employees under the FLSA, and therefore would not be entitled to minimum wage or overtime protections.