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Summer brings about many questions. White wine or rosé? Jersey Shore or the Hamptons? Can I now wear white jeans? Should I be an unpaid intern? Whether interns should be paid has been an unanswered legal question for several years. The U.S. Department of Labor in 2010 sought to end the guessing and issued guidelines on this issue.
Internships at for-profit companies must meet six requirements, according to the DOL, to be exempt from the Fair Labor Standard Act’s requirements. If these requirements are met, the FLSA’s minimum wage and overtime provisions do not apply:
- The internship is similar to training that would be given in an educational environment.
- The internship experience is for the benefit of the intern, not the company;
- The intern does not displace regular employees, but, instead, works under close supervision of existing staff.
- The employer that provides the training derives no immediate advantage from the activities of the intern, and on occasion, its operations may actually be impeded. The focus here is that the employer is dedicating resources away from building its business to educating the intern.
- The intern is not necessarily entitled to a job at the conclusion of the internship.
- The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
Not to be outdone, the New York Department of Labor has issued six additional requirements to offer unpaid internships, thereby permitting the intern to be exempt from the New York Labor Law’s minimum wage and overtime provisions:
- The trainees or students are notified, in writing, that they will not receive any wages and are not considered employees for minimum wage purposes.
- Any clinical training is performed under the supervision and direction of people who are knowledgeable and experienced in the activity.
- The trainees or students do not receive employee benefits.
- The training is general and qualifies trainees or students to work in any similar business – not just the specific company.
- The screening process for the internship program is not the same as for employment and does not appear to be for that purpose. The screening uses criteria relevant only for admission to an independent educational program.
- Advertisements, postings or solicitations for the program clearly discuss education or training, rather than employment, although employers may indicate that qualified graduates may be considered for employment.
New York employers must satisfy both sets of requirements to lawfully have an unpaid intern in their internship programs. If you have questions about this, the overtime lawyers at Lipsky Lowe are here to help. Contact us for an evaluation of your case if you were an unpaid intern and whether or not you have a claim against your former employer.