Unpaid Student Interns under the Fair Labor Standards Act
Kozlowski, James C., Parks & Recreation
ON APRIL 2, 2010. THE NEW YORK TIMES published an article by Steven Greenhouse entitled "The Unpaid Intern, Legal or Not." The article noted that increasing number of unpaid internships is "leading federal and state regulators to worry that more employers are illegally using such internships for free labor." Specifically, the article noted that "many employers failed to pay even though their internships did not comply with the 'six federal legal criteria' that must be satisfied for internships to be unpaid."
Accordingly, in response to the NY. Times piece, coordinators in parks and recreation university curricula have questioned whether undergraduate students should be assigned to unpaid internships in public park and recreation agencies as part of their academic program requirements.
Upon written request, the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) will issue opinion letters regarding the application of the Fair Labor Standards Act (FLSA) in matters not involving pending litigation or an investigation/litigation by the WHD/DOL. As the term suggests, "opinion letters" of an agency express administrative opinions as to "the application of the law to particular facts presented by specific inquiries." As such, these opinion letters constitute an agency "ruling," i.e., an agency interpretation made by the agency as a consequence of individual requests for rulings upon particular questions. 29 CFR 790.17
An employer who conforms and relies on the information contained in a requested opinion letter would offer the agency's ruling as good faith evidence of compliance with the FLSA. Although unlikely, subsequent court decisions or changes in the law could, however, lead the WHD Administrator to publish a statement in the Federal Register rescinding all previous interpretations and rulings, including opinion letters, to the contrary.
DOL Intern Letter Opinion
In an opinion letter dated, May 17, 2004, the Fair Labor Standards Team within the Office of Enforcement Policy of the U.S. Department of Labor (DOL) responded to a "request for an opinion concerning the application of the Fair Labor Standards Act (FLSA) to college students participating in your client's internship program" (FLSA2004-5NA). In this particular instance, the stated purpose of the internship was to "teach marketing, promotion, and statistical analysis to students in a real world setting" and was described as follows;
[The] internship will be structured like a college Marketing course complete with program description, outline, syllabus and assignments. " The student interns work a flexible, part-time schedule of approximately 7-10 hows per week. They perform the work of a held marketing representative on-campus and are expected to assume the role of regular staff members of the company.
The duties of the student interns include wearing items of clothing embossed with the company logo while distributing stickers and flyers and evaluating the response of other students; collecting data on the composition of the campus population and that of the surrounding city; utilizing on-line chat rooms to track the effectiveness of certain web sites and the ability to drive on-line traffic to different sites; obtaining detailed contact information for five of the most popular club/bars, coffee shops, bookstores, record shops, beauty salons, clothing stores, and skate shops; and surveying 50 people on campus and compiling data to predict trends in the area and nationally.
Students may participate as interns only if they obtain college credit for the internship. While Marketing and Communication majors are preferred, any student will be accepted if his/her academic advisor approves the course. A faculty coordinator is responsible for advising the student interns and consulting with the company supervisor on a regular basis regarding the student's performance. The company assumes responsibility for direct supervision of the student interns. …