Government questions legality of unpaid internships

Attention, interns: Not getting paid for routine coffee runs and copy making might not just… Attention, interns: Not getting paid for routine coffee runs and copy making might not just be a pain. It might also be illegal.

State labor officials in Oregon, California and other states are cracking down on unpaid internships. Some employers have even been fined for violating minimum wage laws for the unethical treatment of interns, according to the U.S. Department of Labor, sparking a nationwide discussion about how much unpaid work is too much.

Interns are often afraid to file complaints because they don’t want to cause trouble, Ben Bratman, an associate professor of legal writing at Pitt’s law school, said. They might also fear that getting ahead without the internship will be impossible.

“This is the reality that always exists with issues in the employment setting,” Bratman said. “Whether it’s an intern, a trainee or an applicant, employees are unlikely to complain about potential violations because they fear retaliation from superiors, or developing a reputation that isn’t going to help their long-term advancement.”

Bratman said it is important for interns to know what is legal and what is not, so they can distinguish if they are treated fairly — and legally. He said there are many gray areas when it comes to unpaid internships, but there are still a few rules for interns to keep in mind.

“If someone is labeled as an employee, then they have to be paid at least minimum wage,” Bratman said.

He added that employers can classify interns as “trainees,” and if they do, they don’t have to pay them.

To clarify the issue, the Department of Labor’s Wage and Hour Division created a set of six criteria under the Fair Labor Standards Act that distinguishes employees from trainees. The Department of Labor released a statement earlier this month elucidating these criteria for employers and colleges.

A person is not considered an employee if:

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.

If the person passes each of these criterion, then he or she does not bear the legal label of “employee” and does not have to be compensated.

Bratman said that, in many cases, employers benefit quite a lot from trainees. For interns, the line between “employee” and “trainee” might not be so clear. He added that the practical and legal concerns of interns go hand-in-hand.

“If an intern agrees to be unpaid up front, then I would say it’s important that the number of hours he or she is going to work is established,” Bratman said. “Don’t go in without knowing that up front.”

He added that an unpaid intern should make sure there is supervision and an opportunity to learn and grow, as well as the possibility of moving into a paid position. If an intern is considered to be a trainee, he should not be hit with unexpected overtime or any of the tasks that should be carried out by an employee, he said. He said trainees should receive some sort of training and be performing work conducive to their learning experience, like shadowing employees.

“If you’re not getting training of any kind, then the internship is dubious,” he said.

As the line between trainee and employee becomes fuzzy, it also becomes wider. Since unpaid interns are not considered employees, they do not reap the benefits that employees do.

Bratman explained that trainees, as well as volunteers and independent contractors, are not substantially protected from employment discrimination. He said a trainee with concerns should appeal to the Department of Labor if he thinks his rights have been violated.

Bratman said the Department of Labor operates by the Fair Labor Standards Act, but labor laws can be refined at the state level.

Pennsylvania operates by the Fair Labor Standards Act, but Bratman said some western states, especially California, tend to have employment-related statutes that are much more protective of employees. For example the minimum wages in California and Oregon are $8 and $8.40, respectively. When compared with Pennsylvania’s minimum wage of $7.25, one can see the stricter laws at work.

Danielle Ryan, a fashion design major at the Pratt Institute in Brooklyn, N.Y., started an unpaid internship with DKNY this January in the textiles and design department. Ryan said she loves the work.

“I go there two days each week from 10 a.m. until 6 p.m.,” Ryan said. “The days actually go really fast because we have a lot of fun most of the time,” she said. “Not only am I getting [academic] credit from DKNY, but I’m also learning a really important side of the business that a lot of fashion majors never really get to   — an in-depth knowledge of textiles and where to find great fabrics.”

Ryan, who is in her second year at Pratt, also held an unpaid internship with designer Ranjana Khan last year but did not receive credit.

“I am currently looking for a summer internship, and it’s becoming harder to find companies that will take interns without making them receive credit for the work,” Ryan said.

Ryan is pleased with her current internship, but she said she sacrifices personal time with her heavy work load and job as a resident assistant.

“I just have a lot less free time because I have 18 credits and work 30 hours a week as well,” she said.

She said her internship with DKNY involves a lot of organizing, and that she is one of only two interns for the department, which has about 20 members. Ryan said she is very happy with her experience, and added that the benefits of internships outweigh any negatives.

“I believe internships are the best way to make connections and the best shot current college students have with being hired at a desirable company after graduation,” she said.