Many of us have been there, trying to get ahead by padding our resume – very often through unpaid labor, more commonly known as internships. But, is it legal for employers to have free interns? The answer is that it really depends on the internship program.
Sometimes, employers play the semantics game. They believe that if they call their workers “interns” or “independent contractors” or something else altogether, they do not have to treat those workers as employees. The truth is, however, that no matter what an employer calls its workers, the law can view them as “employees”, and entitle them to certain rights, including the payment of wages.
Let’s look at interns. The Fair Labor Standards Act (FLSA), a federal law, says that employees must usually be paid a certain minimum wage and receive overtime pay. Frequently, states require employers to pay their employees even higher minimum wages than required by FLSA.
Interestingly, the Fair Labor Standards Act does not explicitly talk about “interns” at all. In fact, the FLSA defines “employees” very broadly – basically anyone who works for an employer (yes, it’s rather circular). By that definition, even an “intern” would be an employee because an “intern” works for the employer. Yet, the courts have stepped in and said that “trainees” – we use the term “interns” interchangeably – are not employees and are not entitled to same rights as employees. Some employers have used this window to call their employees “interns” and avoid responsibilities under the FLSA. Classic legal loophole.
The fact that courts have said that “trainees” do not need to be treated as employees, however, does not mean that if an employer calls someone an “intern” or a “trainee” that worker no longer has to be paid. In order for a court to find that a worker is an “intern” – who is not entitled to FLSA benefits – a number of important factors must be met.
While courts across the United States do not necessarily agree on what exactly those factors are, one approach has been recently defined in the case of Glatt v. Fox Searchlights Pictures, Inc. In that case, the court found that an intern who worked on the movie Black Swan was, in fact, an employee under the meaning of the Fair Labor Standards Act and New York law, and should have been paid. The court relied on a test adopted by the U.S. Department of Labor in determining whether a worker was an intern who did not need to be paid. According to that test, an individual who works in a “for-profit” private sector internship may do so without compensation if the following elements are met:
- The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
- The internship experience is for the benefit of the intern;
- The intern does not displace regular employees, but 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 intern is not necessarily entitled to a job at the conclusion of the internship; and
- The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
Obviously, every case is different and the facts must be considered very carefully in determining whether an individual is an “intern” or an “employee”. In a very general sense, however, it may be insufficient for an employer to say that a worker is an “intern” simply because that “intern” is gaining experience while working for the employer. In such cases, the worker is often an employee who should be paid pursuant to the FLSA and state law.
If you believe that you are entitled to compensation which has not been provided to you because you were treated as an intern, or for another reason, please contact Washington D.C. employee rights lawyer at Klaproth Law.