Legal experts are warning of a wave of unpaid intern lawsuits after a judge found that two Fox Searchlight production interns were not compensated legally.
It turns out it is really hard to meet all of the legal requirements for an unpaid internship.
This is a big deal because more than half of college student internships are unpaid, according to a 2012 Intern Bridge survey, as are many post-college internships.
“I highly recommend that students become familiar with the Fair labour Standards Act (FLSA),” says Lauren Berger, founder and CEO of Intern Queen, an online resource for finding internships and author of “All Work, No Pay“. “Do your homework. Go to the FLSA website and take the unpaid intern test.”
Here are the six criteria from the Department of labour, all of which an unpaid internship must pass in order to be legal.
1. 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.
2. The internship experience is for the benefit of the intern.
3. The intern does not displace regular employees, but works under close supervision of existing staff.
4. 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.
5. The intern is not necessarily entitled to a job at the conclusion of the internship.
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
In short, an unpaid internship has to be almost wholly for the benefit of the intern and not the employer — and that’s often not the case.
Keith Sonderling, an employment attorney at Gunster law firm in West Palm Beach, Florida says that an unpaid internship should be structured like a summer school of sorts.
“It’s almost like the employer is hosting a vocational training program where they are teaching interns the business while not allowing them to work on real projects, only hypothetical situations,” says Sonderling. “Those tasks should not be benefiting the employer, only the intern.”
Sonderling says a truly legal unpaid internship can almost be a burden on the employer because “they are creating a program and making courses solely for the benefit of the intern. If abiding by the guidelines, the employer should not be gaining anything from having the intern there, and certainly should not be helping them profit.”
For example, if you’re interning at a media publication and publishing stories with a byline and not getting paid, that could be illegal.
Working long hours as an unpaid intern is another red flag, according to Sonderling.
Does your past, present, or future internship fit these criteria? If not, then you may have a shot at legal recourse. Anyone who suspects they were not compensated fairly can file a complaint with the U.S. Department of labour’s Wage and Hour Division.
Prospective unpaid interns should do research to avoid exploitative internships.
“During the interview, [a prospective intern should] ask questions like ‘Can you describe a typical day as an intern at your company?’,” says Berger. “That will show you very quickly the structure of the program. If the company doesn’t have much to say, that’s a big red flag. You want to look for very structured internship experiences.”
The upshot of all of these lawsuits is that unpaid internships may become less common.
“Traditionally unpaid internship programs have been the way to get into the company. You work for free, get the experience, network, and you eventually get hired. This won’t be happening anymore,” says Sonderling. “Companies won’t be able to provide unpaid internship experiences anymore because they simply can’t afford to pay for it.”
Hopefully, companies will respond by offering more paid internships.
Emily Miethner, founder of NYCreative Interns, the largest Meetup group for interns and recent grads in the nation, says there has recently been a 500 per cent increase in activity on her site for paid internship positions versus their unpaid counterparts.
The move to paid internships could be good for employers too: “Anything that forces people to think more critically about their hiring process and the investment they’re willing to make in talent is a good thing,” Miethner says. “At the end of the day, is minimum wage really that much?”
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