How to tell if that internship is legal
Editor’s Note: U.S. District Judge William H. Pauley III ruled this week that Fox Searchlight Pictures violated minimum wage and overtime laws by not paying interns. “In the ruling, Pauley said Fox should have paid the two interns who filed the lawsuit because they did the same work as regular employees, provided value to the company and performed low-level tasks that didn’t require any specialized training.” Read more…
As the economy has gotten worse, the number of small and large businesses looking to save money has, of course, increased. As a result many people are offering what used to be paid positions to “interns.” Sidestepping the ethical question, we can consider the legal question of unpaid internships.
Internships used to be a very important part of a skilled laborer’s educational experience. However, interns were never supposed to take the place of a paid employee. There are two types of interns: paid and unpaid. If the internship you are being offered is paid at your state’s min wage, and your employer is keeping up their workman’s comp insurance and paying their part of the payroll taxes required by law, then your internship is legal. For the purposes of this article the term internship is only being applied to unpaid internships, not to ones that pay the min hourly wage as set forth by that state’s EDD.
Many of the newer people in the film and photo industry want to know how to graduate to paying assisting work. They believe that if they work unpaid for a few months that they will somehow magically find a way to go from unpaid intern to paid assistant. The fact is if people do not report the full time 2-3 month “internships” that are illegal, then the concept of paid assistants may go away forever. Already many jobs that were paying in the past are being done by unpaid “interns.” The old saying of “Why buy the cow when you can get the milk for free?” is sadly true in the case of being an unpaid intern.
Not all internships are without merit, which is why there is a difference between an illegal internship and a legal internship. Knowing that there are legal unpaid internships, how do you determine if the internship you see being offered is legal or illegal?
To start with, there are specific criteria that each internship offered in the USA must meet in order to be considered a legal internship. Should the internship not stand up to this scrutiny, the intern may be entitled to back pay, and/or large fines paid directly to the employee from the employer. In addition, should the internship provider be seen as trying to avoid paying not only the wages for the intern, but their payroll taxes, they could face large fines and/or criminal charges being leveled against them.
There’s a good letter from the Department of Labor that details those criteria. Note that you can report your employer on the web or by phone at 1-866-4-USWAGE. Or you can write a testimony to inform other potential interns at InternshipRatings.com or UltimateIntern.com. Even third parties can file a lawsuit against an employer that offers unfair internships.
Unpaid internships can be illegal in the United States if they don’t meet some of the following requirements from the Fair Labor Standards Act.
- The training, even though it includes actual operations of the facilities of the employers, is similar to that which would be given in a vocational school.
- The training is for the benefit of the student.
- The student does not displace a regular employee, but works under the close observation of a regular employee or supervisor.
- The employer provides the training and derives no immediate advantage from the activities of the student; and on occasion, the operations may actually be impeded by the training.
- The student is not necessarily entitled to a job at the conclusion of the training period.
- The employer and the student understand that the student is not entitled to wages for the time spent training.
Pay special attention to number 3 & 4, because that is where most of these internships fail. If the majority of the activities are done solo, such as downloading images, filing, making phone calls, keeping the equipment tidy, hauling heavy equipment around, driving or doing errands then what you have is not a legal unpaid internship. At that point the position must be paid at least min. wage.
Also, internships that require 11+ hours of time a week could be logically seen to displace a regular employee.
The website below is filled with valuable, well-researched information, as well as some one-on-one help for people who feel they have been the victim of an illegal internship scam.
The biggest point this article is trying to make is that there are as many, or more, requirements for legal unpaid internships as for any paid job. You should always consult an attorney before deciding to offer an unpaid internship, or even a one day unpaid assisting job, to make sure you are not breaking any state or federal laws. If you feel you are working for, or have worked for, a company or individual as an unpaid intern, and the tasks you were required to do did not fit the standards set forth by law, I recommend contacting your local EDD or the Department of Labor.
Please be advised that nothing stated above can take the place of a good lawyer, or the advice of your local Employment Development Department. If you believe you have been the victim of unfair workplace practices, such as working for no pay, refusal of overtime, or working in a workplace that does not offer worker’s comp insurance, you should contact your state’s EDD and file charges against your employer. If you are considering offering an unpaid internship you should hire a lawyer to check and make sure that your internship will meet the legal standards. If in doubt, you may want to consider offering paid internships rather than unpaid ones.
DISCLAIMER: Legal information is not the same as legal advice. Information of a legal nature posted or made available on this website is not intended as legal advice. It is intended for general informational purposes only and you should not rely on it. It is not a substitute for consultation with an attorney licensed to practice in your jurisdiction.