Plaintiffs’ class-action attorneys have targeted unpaid internships in recent years, such as in litigation involving interns at Harper’s Bazaar magazine and on the set of the movie “Black Swan.” And other plaintiffs’ attorneys have followed suit. Some think unpaid internships should be abandoned altogether; others think they should, within appropriate limits, still be given a try.
Camille Olson, an attorney with Seyfarth Shaw in its San Francisco, Chicago and Los Angeles offices, thinks they can work under the right circumstances. Employers can take three steps to ensure that unpaid internships hold up in a court of law, she told SHRM Online on May 9, 2014.
First, “set up an intern training program that specifically describes the ‘work’ that is to be done,” she commented. And by “work” she means learning opportunities. Flesh out the description fully, including the hours to be worked and the benefits for the job, Olson recommended. And decide this in advance so an employer can then plan how to support the intern training program.
Second, managers who will oversee the interns should be trained and taught what the experience should be like for the participants . Some managers “don’t understand that this is different from an employer-employee relationship and revert to doing what they would do with an employee,” she observed. There should be more oversight and feedback than with an employee, for example.
Benefits to Interns
Third, employers should explain clearly to interns what benefits they will receive, the employers’ expectations and their obligations. Also, the interns should be given contact information for HR so they have someone to contact if they have concerns, Olson noted.
The unpaid intern, not the employer, should be the primary beneficiary from the internship, Olson added.
But she disagreed with the suggestion in a 2010 Department of Labor articulation of what unpaid interns can and can’t do—namely that unpaid interns can’t do any productive work.
Benefits to the unpaid employee might include job shadowing. In a newsroom internship, for example, the intern might go to a press conference or draft sources he would use in an article and then progress to writing his own articles. There would be more substantive editing of an intern’s work and more conversation about it, Olson remarked. And having published articles with their bylines is of benefit to the interns.
Cutbacks on Unpaid Internships
As a practical matter, with the rise of lawsuits against private businesses over unpaid internships, fewer employers are offering unpaid internships to avoid the risk of being sued, Olson said. Other employers are switching to paying interns minimum wage.
“It’s the safest thing to do,” remarked Rebecca Aragon, an attorney with Littler in Los Angeles.
Nonprofits and the government need not worry though, Olson added, explaining that the government and nonprofits are subject to exemptions that allow people to volunteer.
Don’t Hand Off Grunt Work
But employers in the private sector should be careful, and should beware of the tendency to hand off grunt work to unpaid interns.
There is a difference between saying “we are going to a press conference” and “prepare the folders” before going, and just requiring an unpaid intern to do all the prep work and not attend the press conference, Olson observed.
Employers that offer unpaid internships should ensure the individual is getting academic credit to ensure adequate benefit to interns, Aragon added.
Benefit to Employers
While the main benefit of unpaid internships should be for the interns, employers still can benefit.
They can foster their reputation as an employer of choice and help make themselves sought after by students at colleges and universities, Olson observed. Another benefit to employers is that training people of a younger generation can get the employer to “change the way you think of things” by introducing greater diversity of thought in the workplace, she noted.
But some universities are getting gun-shy about credit for unpaid internships, Aragon noted. For example, Columbia University has announced it will no longer provide academic credit for unpaid internships.
Employers are getting skittish about unpaid internships too, Aragon said, deciding they are “too huge a risk.”
If going ahead with unpaid internships, have interns sign an agreement that says the interns are there to learn and not do work, noting they are to immediately report if their experience deviates from this agreement, Aragon recommended. And consider making all interns sign arbitration agreements and agree to submit all claims to arbitration, which she said is less of a media circus than some of the class-action lawsuits challenging unpaid internships.
But think twice before offering unpaid internships, suggested Aragon, who said unpaid internships “give a bad name [and] are bad PR. Even employees see interns as taking away opportunities they would have had.”
Regardless whether the internships are paid or unpaid, New York City recently passed a law that extends the protections from discrimination and harassment to all interns. The law takes effect June 14, 2014.
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
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