The interns are fighting backNews added by Benefits Pro on October 30, 2013

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Joined: September 07, 2011

My Company

By Dan Cook

Perhaps it’s time to review the law on internships, because the intern uprising is clearly under way.

Interns are increasingly starting to look to the courts for redress for what they claim is exploitation by employers. Groups that advocate on behalf of interns are beginning to spring up, and, of course, we’re seeing more attorneys who specialize in intern rights.

The bottom line is this: For-profit employers do not get to decide whether someone is an intern or an employee willy-nilly.

The manner in which they are deployed, and the expectations laid out at the start of the relationship, are what define intern vs. employee. Ignore the law, and you could face substantial monetary sanctions.

The matter was raised in a highly public manner when Conde Nast recently deep-sixed its longstanding internship program. The company, owned by the Newhouse clan, operates such properties as The New Yorker, Vanity Fair and Vogue. The parent firm dumped the program after being sued by a pair of interns who said they should have been paid more for the work they did.

The Condé Nast interns had been paid. But in their suit, they claimed they got less than minimum wage for their summer magazine jobs. Both said they were not truly being trained but were simply performing work that an employee could have done.

Those employers who use interns should take a look at the federal guidelines that define whether your brother-in-law’s son on summer break from Yale is an intern or not.

Here are the six parts to the litmus test, courtesy of The U.S. Department of Labor’s Wage and Hour Division:

1. The training, even though it includes actual operation of the facilities of the employer, is similar to what would be given in a vocational school or academic educational instruction.

2. The training is for the benefit of the trainees.

3. The trainees do not displace regular employees, but work under their close observation.

4. The employer that provides the training derives no immediate advantage from the activities of the trainees, and on occasion the employer’s operations may actually be impeded.

5. The trainees are not necessarily entitled to a job at the conclusion of the training period; and.

6. The employer and the trainees understand that the trainees are not entitled to wages for the time spent in training.

The Wage and Hour Division’s often-repeated point is that there aren’t many cases in which someone labeled an intern can legally be paid less than the minimum wage to perform work someone else would be paid to do. Interns have to be trained, supervised and given a program designed to teach them about the job or industry in which they are involved.
Although one can encounter an intern in many businesses, the media and fashion industries have long been major users of internships. Not surprisingly, a number of lawsuits have targeted big media players. A lawsuit last spring against Fox Searchlight Pictures filed by two interns has received big play. They claimed they weren’t paid for work on “Black Swan” and sought back wages. The courts found in the interns’ favor.

While the lawsuits fly back and forth around the money issue and interns, intern advocates are also moving forward to extend full employee rights to interns.

Currently, only in Oregon do interns enjoy the same protections from discrimination and harassment that are extended to regular employees. A similar bill has been introduced into the New York State legislature that would extend to interns the same statutory workplace protections that protect other employees.

That bill was in response to a recent court ruling that denied the sexual harassment claims of a female intern because, as an unpaid intern, she did not have employee status under New York law and therefore was not protected by anti-discrimination laws.

The New York bill would “define internships, explicitly ban workplace sexual harassment of interns, and apply general workplace civil rights protections to interns.” Interns would be extended protection against discrimination based on age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status or domestic violence victim status — the same protections regular employees enjoy.

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