Many legal issues relating to internships remain unclear, partly because the word “intern” itself is rarely used in the relevant laws and regulations and partly because court precedents are few. In general, doing substantive work without pay for any meaningful length of time is illegal in most countries; on the other hand, many countries also have exemptions for legitimate student trainees. What’s offered below is not formal legal advice, but simply a very general guide.
The single best source of information for American internships and the law is David C. Yamada, “The Employment Rights of Student Interns,” 35 Conn. L. Rev. 215, 217, published in 2002.
The basic law pertaining to the status of interns is the Fair Labor Standards Act (see Chapter 4), under which most interns are entitled to minimum wage and “time-and-a-half” for overtime. The law is enforced by the Wage and Hour Division (WHD) of the Department of Labor and applies to all but the very smallest firms. Based on the 1947 Supreme Court decision in Walling v. Portland Terminal Co., WHD only considers an unpaid internship legal if it meets all of the following criteria:
1. The training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in a vocational school;
2. The training is for the benefit of the trainee;
3. The trainees do not displace regular employees, but work under close observation;
4. The employer that provides the training derives no immediate advantage from the activities of the trainees and on occasion the employer’s operations may actually be impeded;
5. The trainees are not necessarily entitled to a job at the completion of the training period; and
6. The employer and the trainee understand that the trainees are not entitled to wages for the time spent in training.
The latest word on how these criteria are interpreted for internships can be found in “Fact Sheet #71: Internship Programs Under the Fair Labor Standards Act,” issued by WHD in April 2010.
Also:
• Just because you agreed to an unpaid or underpaid internship does not mean you signed away your right to fair pay.
• Just because you received academic credit and the approval of your school does not mean you lost the right to be paid.
• Interns have won cases against their employers on numerous occasions and received “double damages” (double the amount of backpay owed) as well as the reimbursement of legal fees.
• Unless you are a paid intern, you may not have the right to challenge discrimination, harassment and other abuses in the workplace (see the discussion of O’Connor v. Davis in Chapter 4).
• Several states have laws that make it even harder for organizations not to pay.
• Nonprofit internships seem to be a gray area.
If you believe that you are taking part, or have recently taken part, in an illegal internship, the first step is to talk to interns past and present who have worked in the same office and see if a group of you share the same complaints. Whether or not you form a group, contact the department of labor in your home state (it will probably have a website) and make a minimum wage complaint. You can also go straight to the federal level by contacting WHD in Washington online or by phone. Talking to your employer directly is another solution. If none of these works, contact an employment lawyer in your area—an easy way to find one is to visit nela.org, the website of the National Employment Lawyers Assocation (NELA).
Unlike in the U.S., there is no relevant federal legislation like the FLSA—interns must look to the relevant legislation about employment standards for the province where they’re working. For instance, according to Sara Parchello, a lawyer in the Labour, Employment, and Human Rights Group at Canadian firm Fasken Martineau, the province of Ontario defines an intern as an employee “if he or she is being trained in a skill used by the company’s other employees, unless the intern:
• is receiving training similar to training given in a vocational school;
• benefits from the training and the employer doesn’t;
• doesn’t replace other “employees”; and
• doesn’t automatically become an “employee” when the training has finished.”
As in the U.S., interns deemed to be employees are fully entitled to pay and other workplace rights. Contact the relevant provincial ministry of labor to file a claim about an illegal situation (sometimes it can even be done online), and look to employment lawyers if need be.
With more and more illegal opportunities recently on offer, awareness about internship practices (or “work experience,” as it’s sometimes called) is growing. Although the legal situation is still somewhat unclear, and knowledge of the law is not widespread, a government employment tribunal in Reading recently ordered London Dreams Motion Pictures to pay more than £2,000 to a former unpaid intern who sued with the help of BECTU, the union for British workers in the film, TV and other audiovisual industries. According to the Financial Times, the U.K. government has provided guidance that interns “should be paid if they have a list of duties and work set hours,” as per the National Minimum Wage of 1998.
If you want to report an illegal situation and get justice, one option is to contact the Pay and Work Rights Helpline or the National Minimum Wage Helpline associated with HM Revenue and Customs: both provide confidential help. You should also consider contacting the Low Pay Commission and reporting your experience on some of the relevant websites that have recently sprung up in the U.K., including Intern Aware, Interns Anonymous, and Rights for Interns.