Many employers are tempted this time of year by the thought of using an unpaid summer intern. Free labor coupled with a weak economy, sounds like a perfect match. I try to caution our employer clients, if it sounds too good, it just may be illegal. Unpaid internships have been subject to increased scrutiny by the Department of Labor since at least 2010, when I first blogged about the issue.
Last week, a New York Federal Judge ruled that Fox Searchlight Pictures violated federal and state wage laws by using unpaid interns during the filming of the movie “Black Swan,” starring Natalie Portman. According to Steven Greenhouse of the New York Times, “the Judge noted that these internships did not foster an educational environment and that the studio received the benefits of the work.” The use of interns in the workplace has increased over the years, and reportedly there are more than a million internships a year, with half of them unpaid. Instead of unpaid interns, Fox Searchlight Pictures had some pretty costly plaintiffs helping on the movie set.
Legitimate interns are not considered employees under state or federal law, if their use in the workplace generally passes six tests offered by the Department of Labor. The tests are:
1. The training experience is similar to what is provided at school;
2. The training experience is for the benefit of the student/interns;
3. The student/interns do not displace regular employees;
4. The employer providing the training receives no immediate advantage from the activities of the trainees;
5. Student/interns are not necessarily entitled to a job at the conclusion of the training; and
6. The employer and the student/interns understand the work is unpaid training. (Note: a reasonable stipend may be permitted)
Not every intern is a potential costly plaintiff, as long as the employer carefully follows the rules. I am pleased to say my firm has a bright paralegal intern in our office this summer by the name of Larissa Luhring (pictured above). She is required to intern with a law firm for 400 hours, as a requirement to earn her Bachelor of Science degree in paralegal studies from Winona State University. (An ABA accredited program.) My law partner’s undergraduate degree was from the paralegal program at Winona State, and she truly valued the 400 hour intern experience. We are consciously trying to offer Larissa an educational experience, exposing her to the real life practice of law. As a matter of fairness, we are also providing her with a stipend.
Employers should not shy away from using interns, if they follow the rules. It can be a win-win situation for all concerned.