If you’ve skimmed internet news in the last 4 months, you’re aware of two scary trends: (1) twerking and (2) interns filing class actions for unpaid compensation against publishers, entertainment companies, fashion houses, and other businesses. Is there a line for what is proper in either trend?
Let’s begin with internships. As the Department of Labor reiterated in its September 2013 opinion letter, “[g]enerally, the Fair Labor Standards Act does not permit individuals to volunteer their services to for-profit businesses….” The exception to that general rule is predicated on compliance with the following criteria:
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;
the internship experience is for the benefit of the intern;
the intern does not displace regular employees, but works under close supervision of existing staff;
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;
the intern is not necessarily entitled to a job at the conclusion of the internship; and
the employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
But what does this really mean in practice? The Department’s September 2013 letter provides insight. There, it distinguished between law school students and law school graduates doing pro bono work for law firms, concluding that the students may be unpaid interns but that graduates may not. For the graduate, there is no school “intermediary” to monitor the program and the intern’s educational experience has already been wrapped up.
This suggests a safe-harbor. Unpaid internships should be done — if possible — in partnership with a school and always with students who have not yet graduated. Thus, recent college graduates (who are often willing to volunteer to work for free in hopes of launching a career) may be the most dangerous interns; as Nobel Prize winning economist Milton Friedman liked to say “there is no free lunch,” and the litany of internships lawsuits prove him right again.
There is, of course, no safe harbor for twerking. But, both of these trends are spilling overseas. Miley Cyrus is currently on her European tour. Meanwhile, organizations like the U.K.’s “Intern Aware” have launched campaigns for interns there to be paid at least the national minimum wage while French employers must now comply with the Loi Cherpion, which requires — among other things — that all interns working for more than two months receive at least minimum wage.
The bottom line (pun intended) is “dance thoughtfully” with your interns or when twerking.