On September 12, the Department of Labor issued a clarification regarding its statement that law students may work as unpaid interns on pro bono matters at private law firms. Unpaid internships have become a hot button issue; in June, a federal judge for the Southern District of New York held that a major motion picture studio violated federal and State minimum wage laws when it failed to pay two interns for work they completed on the film “Black Swan” in 2009 and 2010. In a letter penned to the American Bar Association Immediate Past President Laurel G. Bellows, Solicitor of Labor M. Patricia Smith explained that a law school student who performs work for his or her own educational benefit would not be considered an employee under the Fair Labor Standards Act (the “FLSA”) where the following criteria are met:
- The internship is similar to training that would have been 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 the supervision of existing staff;
- The employer that provides the training derives no immediate advantage from the activities of the intern;
- 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 waves for the time spent in the internship.
According to the Solicitor, whether or not an intern is considered an employee under the FLSA depends largely on the facts and circumstances of each case. If the student works exclusively on matters that provide an educational experience comparable to the kind of training that a student would receive in a law school clinic program, the work is limited to pro bono matters that do not provide an immediate benefit to the firm, the student does not displace regular employees, the student is not entitled to a job at the end of the internship, and the firm and student agree that the student is not entitled to wages, the student may not be considered an employee subject to the FLSA. In contrast, students who handle fee-generating matters or billable work for private firms, who displace employees (including staff and paralegals), and are entitled to work at the conclusion of an internship may be considered employees and therefore protected by the FLSA.
Attorneys in WSH’s Labor and Employment Law Group have years of experience advising clients regarding compliance with the FLSA, and regularly defend our clients in single plaintiff and class action litigation arising from alleged FLSA violations. Chaired by Partner Brett J. Schneider, the Group also defends employers against claims brought under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Family Medical Leave Act, the Equal Pay Act, the Florida Civil Rights Act, the Florida Whistleblower’s Act, and similar Federal, State and local laws. Our attorneys also regularly defend employers against discrimination charges brought before the U.S. Equal Employment Opportunity Commission, the Florida Commission on Human Relations, and similar local agencies.
Author(s): Brett J.Schneider & Brooke P. Dolara
