In a NY Times piece last week Reporter Steve Greenhouse described how many young people are not being treated fairly by employers who either paid them below minimum wage, or below scale and called the experience an "Internship."
I spent most of my law school career in unpaid or stipended (which is to say low paying) internships. I worked for government entities and learned a lot. I received hands on opportunities and I had a pretty prestigious resume line for the trouble. Now I was fortunate, my parents by this point in our lives were comfortable enough to allow me to take on these experiences and provided money for me to live on. Many however are not so lucky. Moreover, many students are getting internships that teach them nothing and take the job of other employees all for the aid to the employers profit margin.
Believe it or not, the government actually has a set of guidelines that one may use to determine if their unpaid internship is in fact an internship or a indentured servitude.
Essentially, an internship must have the following six requirements to be able to be unpaid:
The U.S. Department of Labor’s Wage and Hour Division (WHD) has developed the six
factors below to evaluate whether a worker is a trainee or an employee for purposes of
the FLSA:
1. The training, even though it includes actual operation of the facilities of the
employer, is similar to what would be given in a vocational school or academic
educational instruction;
2. The training is for the benefit of the trainees;
3. The trainees do not displace regular employees, but work under their close
observation;
4. The employer that provides the training derives no immediate advantage from the
activities of the trainees, and on occasion the employer’s operations may actually
be impeded;
5. The trainees are not necessarily entitled to a job at the conclusion 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.
If all of the factors listed above are met, then the worker is a “trainee”, an employment
relationship does not exist under the FLSA, and the FLSA’s minimum wage and overtime
provisions do not apply to the worker. Because the FLSA’s definition of “employee” is
broad, the excluded category of “trainee” is necessarily quite narrow. Moreover, the fact
that an employer labels a worker as a trainee and the worker’s activities as training and/or
a state unemployment compensation program develops what it calls a training program
and describes the unemployed workers who participate as trainees does not make the
worker a trainee for purposes of the FLSA unless the six factors are met. Some of the six
factors are discussed in more detail below.
In my office, we try to adhere to these six requirements strictly. It is impossible to work in a law office without there being some profit to our firm or clients, and it is impossible to work if people do not file. Heck even I file. However our intern program (which I have run off and on for 25 years now) has the qualities required.
For example, the interns work a part-time schedule usually 3 eight hour days unless we are in a trial. They get hands on learning under the watchful eye of a licensed attorney they participate in conferences, meet clients and visit them at the jail (when the client is incarcerated.) They go to court and work on briefs and articles as if they were working for a law review.
They go to meals and bar events with us and take their meals during the work day with the attorney to whom they are assigned.
Their work is usually not billed to the client (unless their name is on it such as on a brief) and they journal their experiences so that we may answer any unasked questions they may have. They have no guarantee of employment however we often do hire those that have interned for us.
If a kid is spending more than an hour or two a day filing, getting coffee for rather than with his boss, and answering phones (like a receptionist as opposed to say a para-legal) then the first prong of the test is violated as is the second, third and fourth prongs.
Internships are a great mentoring tool. They provided many young people an opportunity to obtain skills that give them a running start on a job. Unfortunately in the hands of the uninformed or worse unscrupulous they are torturous and a waste of the student's time.
If you are considering having an unpaid or low paid intern or internship program this summer, and want to know if you are in compliance, or if you are an unpaid or low paid intern and think you are being unfairly treated, give me a call and we will try to help you.
Hattip: The New York Times.
