While the answer depends on the nature of your internship, the answer is yes, you probably should be paid for your “internship.” There have always been unpaid interns, but the phenomenon has steadily increased over the past few years after the job market tanked and hasn’t recovered as quickly as the stock market. As a result, many recent high school and college grads have been willing to work for free just to get the experience that could lead to a full-time job. Regardless of the employees willingness to work for free, both federal and state minimum wage laws provide a very narrow exemption for interns that most unpaid internships simply cannot meet.
Dept. of Labor Test for Unpaid Internships
In order for an employee to qualify as an unpaid intern (and thus be exempt from the minimum wage requirement), the following 6 criteria MUST be met:
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; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
Requirements 1 through 4 will be the most difficult to meet for most unpaid interns working at “for profit” companies because the main reasons these companies hire these “interns” is so that they can get free labor. For these companies, they are not employing these unpaid interns out of the kindness of heart. To the contrary, the types of unpaid internships that will be covered under the rule are more like apprenticeships where the intern learns a particular skill under the supervision of the employer’s other employees.
The New York Dept. of Labor has adopted the same standards under the New York Labor Law, though they also add a number of other factors that must also be present for the internship to be exempt from the minimum wage laws of the NYLL.
Recent Federal Court Decision
A recent decision from the federal court in Manhattan highlights the difficulty that a for-profit employer will have in meeting the requirements for unpaid internships:
Considering the totality of the circumstances, [the interns] were classified improperly as unpaid interns and are “employees” covered by the FLSA and NYLL. They worked as paid employees work, providing an immediate advantage to their employer and performing low-level tasks not requiring specialized training. The benefits they may have received -such as knowledge of how a production or accounting office functions or references for future jobs – are the results of simply having worked as any other employee works, not of internships designed to be uniquely educational to the interns and of little utility to the employer. They received nothing approximating the education they would receive in an academic setting or vocational school. . . . [The interns] do not fall within the narrow “trainee” exception to the FLSA’s broad coverage.
Because many employers tried to take advantage of many individuals willingness to work for free to get their foot in the door in their particular industry, this has been a huge problem – but with these decisions many employers will be correcting their payroll policies to at least offer interns a minimum wage. If work as an unpaid intern, have additional questions or want to be put in touch with an attorney that can advise you on these questions, please contact us using this form: