Q: I am planning on interning next fall. I hope to be paid. My uncle says there is a new requirement to pay interns. What do you know about this?
A: Your uncle is a wise man! Interns, both paid and unpaid, have been widely used for years within the US. There are no new laws regarding how interns are to be compensated. However, the issue has been a hot topic recently. I consulted Jeffrey Dretler, an employment attorney at Fisher & Phillips LLP to ask why the topic has come under scrutiny recently. Dretler offers: “In the past few years, lawsuits were filed by unpaid interns against several high profile employers arguing that unpaid interns were really employees who should have received minimum wage and overtime pay. In June 2013, a federal judge in New York ruled that interns who worked on Fox Searchlight Pictures, Inc.’s production of the film Black Swan did not qualify as unpaid ‘trainees,’ but were employees entitled to the protection of the federal Fair Labor Standards Act (FLSA). The media has reported that, to avoid liability, some employers have considered eliminating their internship programs entirely or reducing the number of interns while making sure to pay them at least the minimum wage. (See Melissa Schorr, The Revolt of the Unpaid Intern, January 11, 2014, Boston Globe Magazine.)”
The core issue is whether the intern is an employee or truly an intern. Dretler explains that the U.S. Department of Labor has issued guidelines identifying six criteria to be applied when analyzing an internship relationship in the “for-profit” private sector: (1) the internship, even though it includes actual operations 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; (4) the employer derives no immediate advantage from the activities of the intern and, in some cases, the employer’s operations may even be impeded; (5) the intern is not necessarily entitled to a job at the conclusion of the internship; and (6) the employer and intern understand that the intern is not entitled to wages. Dretler further offers, “In most instances, when an intern is performing services for an employer and earning credits as part of a degree or certificate granting educational program, payment is not required, but the answer depends very much on the facts of the particular situation. If the intern is simply doing administrative tasks without receiving much actual training and the employer seems to be taking advantage of the ‘free labor,’ the intern may be entitled to wages.” Unpaid internships for non-profits are generally acceptable.
Finally, you should ask, during the interview process, if the internship is paid or unpaid. It is best to know in advance.