Magazine article HRMagazine

Is Your Unpaid Intern Legit?

Magazine article HRMagazine

Is Your Unpaid Intern Legit?

Article excerpt

Former interns have brought significant claims for violations of federal and state wage laws.

Recently, employers such as Hearst Corp., "The Charlie Rose Show" and Fox Searchlight Pictures have been named for allegedly violating the Fair Labor Standards Act (FLSA) and state labor laws by failing to pay interns who assumed significant work responsibilities. These cases should serve as a wake-up call to all employers that use unpaid interns.

Employers using unpaid interns are well-advised to review and update their internship programs and policies to comply with federal and state standards. To avoid liability, employers can protect themselves with a clear understanding of what classifies an employee as a "trainee," what the requirements set by the U.S. Department of Labor (DOL) mean and how to structure internships.

Recent Rash of Cases

In the Hearst Corp. case, a former intern for Harper's Bazaar claims that the publisher violated state and federal wage law by having her work as many as 55 hours per week without pay. The plaintiffclaims interns "are a crucial labor force" for the fashion magazine. She said she spent her time coordinating deliveries of samples, recording the contents of sample trunks and processing reimbursement requests-activities she claims she should have been paid for. Hearst officials told the press that the company's internships are educational and conform to legal requirements. Nonetheless, the court has allowed the case to proceed on a class basis.

A former intern for "The Charlie Rose Show" alleged, in proposed class action, that the PBS talk show violates New York state labor law by using interns to perform productive work without paying wages. The named plaintiff, Lucy Bickerton, alleges that she regularly worked 25 hours a week or more for the show without pay in the summer of 2007, performing tasks such as conducting research to prepare Rose for guest interviews, assembling press packets, escorting guests through the studio, breaking down the interview set after daily filming, and cleaning the green room-tasks she believes she should have been paid for.

The Fox Searchlight complaint alleges that the media company violated the FLSA and New York state labor law by using unpaid interns during production of the 2010 film "Black Swan." The plaintiffs claim that Fox Searchlight has been able to cut production costs with a stream of unpaid interns who work as production assistants and bookkeepers and who perform secretarial and janitorial work. An unpaid intern on the 2008 film "500 Days of Summer" recently sought to join the Fox Searchlight case, and the group has asked the court to expand the putative class of unpaid interns by adding the parent Fox Entertainment Group.

Employers get into trouble when they view unpaid internships as a way to accomplish work tasks rather than as educational programs aimed at assisting students. Employers should remember the basic rule that they must pay all employees minimum wage and overtime pay under the FLSA and state wage and hour laws.

Indeed, many employers are surprised to learn that the FLSA does not provide an exception for "student interns" per se. Instead, the DOL provides a narrow exception to the definition of employees for "trainees" and has recognized that student interns may qualify as trainees; if student interns qualify, employers are not required to pay them minimum wage or overtime.

Who Qualifies as Trainees?

In structuring unpaid internship or trainee programs, employers must heed the significant requirements the law imposes to qualify someone for this unpaid category. The DOL has set forth six mandatory requirements for someone to be considered an unpaid trainee:

* The training, even though it includes the operations of the employer, is similar to that given in a vocational school. The closer the internship resembles an educational program, the easier it is for an individual to qualify as a trainee under the FLSA. …

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