With the Memorial Day weekend approaching, many people are looking forward to hitting the beach, firing up the grill and polishing off their golf clubs, which are, for many Northeasterners, covered in cobwebs after this long winter. For employers, summer often means the arrival of (potentially unpaid) interns.
We have written before about the recent wave of high-profile wage and hour class actions lawsuits from interns. Last week, just in time for the arrival of the newest batch of summer interns, a New York federal judge conditionally certified an FLSA class of approximately 3,000 interns of Warner Music Group who were allegedly misclassified as exempt from minimum wage and overtime requirements. The recent litigation has also prompted new legislation to protect interns, including a New York City law aimed at ensuring that unpaid interns will have the right to sue if they are harassed or discriminated against by an employer.
Still, many companies cannot resist the temptation of free or relatively cheap temporary labor, and, in a still-rebounding economy, job-seekers continue to look to internships to build their resumes and gain experience. So, what can a company do in order to ensure a smooth, issue-free summer with its interns?
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The first and most obvious answer is to treat interns as temporary employees. Have interns track time like any other non-exempt employees. Pay them at least minimum wage for all hours worked and overtime for any hours worked over 40 per week (assuming they do not meet some exemption from the minimum wage and overtime laws). Comply with all state laws regarding working and meal breaks. This approach will alleviate the vast majority of legal issues with respect to employing summer interns.
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Require interns to attend the same non-discrimination, non-harassment trainings as other employees. Draft job descriptions for interns and set appropriate expectations for the program. Have clear policies, including a policy regarding expected conduct at work-related social events, which interns are required to review and acknowledge in writing.
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If you decide against paying interns, you should carefully review intern program to ensure that it is legally compliant with appropriate wage and hour laws. In order for an intern to be legally unpaid under federal law:
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The intern experience must be similar to training given in an educational environment;
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The internship must be for the benefit of the intern (meaning they gain tangible training, experience, etc.);
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Interns may not displace or supplant regular employees, or perform duties traditionally rendered by regular employees;
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The company must not get any immediate advantage from the intern’s activities;
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The intern must not be entitled to a job at the end of the internship; and
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The company and the intern should have a written agreement (or an understanding at the absolute minimum) that the intern is not entitled to receive remuneration for his/her work.
According to the Department of Labor, if any one of these criteria is not met the company must pay the intern for all time worked. Some states have their own laws regarding interns, so make sure you are in compliance with those laws as well.
If your summer intern program begins soon after Memorial Day, now is the time to review you policies. A little bit of preparation can ensure a sunny summer for all.
