Internship Programs: Rite of Passage, or Right to Pay? The Issue Deserves Continued Monitoring by Employers

by BakerHostetler

With the start of the New Year, many employers are gearing up for their internship programs, which often coincide with academic semesters and summer recesses beginning in May. Such programs, though, have become a source of much attention in the media, courts, state and federal agencies, and even legislatures. Front and center in this debate is whether interns must be paid. It is no secret that within the past few years, unpaid interns have filed suits against businesses, claiming violations of wage and hour laws, sometimes seeking millions of dollars. Especially given the continued rise in these types of claims, employers should carefully evaluate their internship programs and remain current with legal developments.

One such development employers should continue to track is two wage-and-hour lawsuits filed by unpaid interns that the Second Circuit recently decided to review. The first is a putative class action lawsuit against Fox Searchlight Pictures, Inc. and Fox Entertainment Group, Inc. (“Fox”) lodged by former unpaid interns, including interns involved in producing the film Black Swan. The interns contended that Fox violated federal and state law by treating them as interns, not employees. In a decision issued this past summer, a federal district court judge agreed, finding that the interns should have been paid. The judge relied on the U.S. Department of Labor’s six criteria as to whether an internship must be paid, and among other things, observed that the interns were “providing an immediate advantage to their employer and performing low-level tasks not requiring special training.” In addition, the judge certified a class of unpaid interns.

In contrast, the other case the Second Circuit is to consider came out in favor of the defendant. There, former interns with various magazines owned by the Hearst Corporation, including Harper’s Bazaar Magazine, Cosmopolitan Magazine, Marie Claire Magazine, Esquire, and Seventeen, alleged that they should have been paid under federal and state law, as they were employees. In May 2013, a federal judge denied plaintiffs’ motion for summary judgment asserting that they were “employees” as well as their motion for class certification. In reviewing this decision as well as the one against Fox, the Second Circuit will have an important opportunity to weigh in on the standards for whether interns are “employees,” and wage and hour class certification.

In addition to the Second Circuit’s upcoming rulings in these two cases, there are other considerations and laws employers should continue to keep their eye on with respect to interns. Indeed, states may have different legal standards for determining whether an intern will be considered an employee for purposes of wage and hour law. For example, the New York State Department of Labor takes the position that eleven factors apply in making such an assessment in the for-profit sector.

Moreover, as we previously reported here, interns may be considered “employees” for purposes other than wage and hour law—most notably, for purposes of antidiscrimination laws. While some courts have found that such laws do not currently protect interns (as we reported here), some state legislatures have taken steps to see that they do. In addition to New York, New Jersey legislators, for example, introduced a bill last month aimed at extending antidiscrimination laws to protect interns. Meanwhile, employers should be mindful that the tests used to determine whether interns are employees for purposes of pay may not be the same tests used to determine their status for purposes of other employment-related laws, and may vary by state.

The bottom line remains that when it comes to interns, simply acting in line with industry standards may not keep employers safe from potential liability.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© BakerHostetler | Attorney Advertising

Written by:


BakerHostetler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.