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Unpaid Interns: Boon or Bane?
by Tad Crawford
The Fact Sheet continues by discussing issues relating to the displacement of employees and also supervision:
an employer uses interns as substitutes for regular workers or to
augment its existing workforce during specific time periods, these
interns should be paid at least the minimum wage and overtime
compensation for hours worked over 40 in a workweek. If the employer
would have hired additional employees or required existing staff to work
additional hours had the interns not performed the work, then the
interns will be viewed as employees and entitled to compensation under
the FLSA. Conversely, if the employer is providing job shadowing
opportunities that allow an intern to learn certain functions under the
close and constant supervision of regular employees, but the intern
performs no or minimal work, the activity is more likely to be viewed
as a bona fide education experience. On the other hand, if the intern
receives the same level of supervision as the employer's regular
workforce, this would suggest an employment relationship, rather than
Finally, the Fact Sheet deals with requirement that the
intern not be entitled to a job upon completion of the internship,
observing, “If an intern is placed with the employer for a trial period
with the expectation that he or she will then be hired on a permanent
basis, that individual generally would be considered an employee under
Taken together, the explanations and examples given in
the Fact Sheet make clear that the exemption for unpaid interns is a
narrow one. The intern must receive a training experience with special
supervision and not merely do the duties of an employee. The less
actual work the employee performs the more likely the unpaid internship
will be legal. Not only must the intern not do the work of an employee,
but the internship must not be based on a promise of employment. The
guidelines as elaborated by the Fact Sheet make clear that the unpaid
intern is there for his or her own educational benefit and not to do
free work for the company.
RIGHT OR WRONG?
Of course, the legal
guidelines reflect a point of view about what is right and wrong. Should
the guidelines be amended or do they reflect a balancing of the moral
issues involved when someone in a work environment is not paid?
accept the premise of the Fair Labor Standards Act that employees
should be paid for working. In this context the minimum wage is a
guarantee of compensation. None of the arguments in favor of unpaid
internships overcome this basic right of those who are, in fact,
employees. It is true that many interns are eager to take positions
that are unpaid. But this is because a pernicious system has been
created in which unpaid internships represent one of the entrees into
desired professional fields. Ask a simple question: Would these interns
be more or less eager if these internships were paid rather than
Of course, an unpaid internship can be a valuable
credential on a résumé. But a paid internship would be as good a
credential, if not better. If the intern is fortunate enough to find
paying employment after the internship, the fact that the internship
was paid puts the intern in a stronger position to negotiate over wages.
internship can also be a wonderful experience in which skills are
learned, confidence gained and a step is taken toward a desired career.
But, again, this is as true of a paid internship as an unpaid
That federal and state laws discourage companies from
using unpaid interns is hardly an argument for doing away with these
laws. They are designed to make sure that employees are paid. The
exceptions with respect to who is an employee are narrow and rightfully
so. If companies fear that having interns may violate the legal
guidelines, why not simply pay the minimum wage to the interns?
company that is truly teaching an intern and not having the intern do
the work of an employee has a legitimate objection to paying for the
internship. This objection has been codified in the law and such an
intern does not have
to be paid.
Moreover, there is a danger
in accepting the concept that some employees can work without pay.
While most internships are sought by students or recent graduates,
there is nothing to stop companies from requiring unpaid labor from any
and all employees if the federal and state protections for employees
are ignored. Companies that use unpaid labor are not on a level playing field with their competitors, and there is no reason why the
unscrupulous should benefit at the expense of those who are fair.
Protections for employees, including the minimum wage, have been
enacted for good reason and employers in all fields, and especially
attractive fields such as those involving art and communications, should
observe the legal guidelines and do what is right. CA