I have an unpaid intern. He’s a student whom I order to do a little grounds maintenance and some cleanup tasks. The way I look at it, he’s learning, and I’m getting free labor.
Before the U.S. Department of Labor knuckles my door in violation of the Fair Labor Standards Act, the grounds maintenance is lawn mowing, the cleanup is trash removal from a bedroom, and the intern is my son. That sort of working relationship can only happen in the home.
Of course in the workplace, you cannot get free labor. That means if you have an internship program, the students you bring on will likely need to be paid.
Consider that recently unpaid interns have been rising up and filing lawsuits claiming violations of federal and state laws governing minimum wages and overtime. One of the more high-profile cases involved two interns who claimed Fox Searchlight Pictures, during the production of the film “Black Swan,” put them to work as if they were employees. The interns said they performed routine tasks such as making deliveries, organizing file cabinets, making photocopies and taking lunch orders. A federal court said those interns were misclassified and should have been paid. Fox was granted an appeal and the case is still alive.
Now you can see just how messy— er, expensive—these things can get.
The DOL has a six-part test that must be met if you want a legitimate unpaid internship program. Important: You have to jump through all six hoops—a difficult feat:
- The internship, even though it includes actual operation of the facilities of the employer, is similar to training that would be given in an educational environment. Hmm. Does that mean you need to replicate a classroom atmosphere complete with instructors? The rule is silent on the report cards.
- The internship experience is for the benefit of the intern. What’s in it for you? There seems to be little incentive here.
- The intern does not displace regular employees, but works under close supervision of existing staff. If your intern is more efficient and a better worker than Jane the file clerk, that intern can’t fill in for Jane when she’s out sick for three days. Hey, rules are rules.
- 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. Operations impeded? “It’s OK that we’re losing money and customers today, the intern’s learning.”
- The intern is not necessarily entitled to a job at the conclusion of the internship. You can’t tell ’em, “I was an intern here. In fact, half of us interned here. You call it an internship. We call it recruitmentship.”
- The employer and intern understand that the intern is not entitled to wages for the time spent in the internship program. This is the easy one to pass: “Look. We don’t pay interns. Is that clear?” Trouble is, you need the other five.
Tough test, isn’t it?
Your best bet: Pay your interns a rate of pay that complies with minimum wage and overtime requirements under the Fair Labor Standards Act and your state’s laws. Then you can put them to work.
And they’ll learn. What a concept.
Meanwhile, back at the ranch, I get a few more years of free grass cuts and trash removal.
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