Edward J. Kinberg
October 15, 2013 (Originally published in Florida Today in October, 2013)
My friend and I both work as interns at different companies; she gets paid and I don’t. Should I be getting paid?
In the last few months there have been several articles in national magazines about lawsuits filed by unpaid interns claiming the work they were required to perform exceeded the scope of what an unpaid intern can by required to perform. While the simple solution for avoiding a lawsuit is to pay interns, for many small businesses this may not be an option and could substantially reduce opportunities for students to gain valuable experience.
As a general rule, interns are required to be paid under the Fair Labor Standards Act (FSLA). However, in 1947, the U.S. Supreme Court decided a case that clearly identified six factors that allow a business to use unpaid interns. In deciding an unpaid intern case, the court considers all of the factors in order to determine whether the value of the internship benefits the employer or the intern. If the value tends to benefit the employer over the intern, the court can find the business was required to pay the intern.
The U.S. Department of Labor (DOL) publishes information on its website that lists the factors used by DOL and the courts to evaluate an internship to determine if the position should have been a paid position. These factors are: 1) while the internship may include actual operation of the business, it must be similar to training that 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 does not derive an immediate benefit from the activities of the interns and, on occasion, its activities may actually be impeded, 5) the intern is not entitled to a job at the conclusion of the internship, and 6) the employer and the intern understand the intern is not entitled to wage for the time spent in the internship.
None of these factors are exclusive, they simply provide guidelines by which the DOL and the courts can evaluate a case to confirm the objective of an unpaid internship is to provide an educational experience for the intern that will ensure the real beneficiary of the internship is the intern and not the business. An unpaid internship can provide a small business an excellent tool to help a student learn the skills needed for success in an increasingly complex business environment.