by Michelle D. Craig
Partner | Adams and Reese LLP
Question: I would like to add an intern to our workforce. I think an intern would benefit from learning from my organization and I would benefit from having him or her around. I would like it to be a free internship, but I have heard that there have been problems with interns lately. Can I hire an intern without worrying about getting into trouble?
A lot of companies are moving away from unpaid internships because so many companies have gotten in trouble in the past.
In order for an internship to pass the “smell test”, employers should keep some key points in mind. The internship should be similar to the type of training which would be given in an educational environment. The internship experience should be primarily for the benefit of the intern; the intern should not displace regular employees, but should work under close supervision of existing staff. Accordingly, placing the intern with someone to oversee his or her work is critical. As the employer, you can derive no immediate advantage from the activities of the intern. You also should not make guarantees that the intern is entitled to a job at the conclusion of the internship, and there should be a clear understanding that the intern is not entitled to wages for the time spent in the internship.
In summary, you should make sure to keep the intern’s productive work to an absolute minimum, structure the intern’s activities around educational goals (as opposed to the employer’s business needs), and assign regular employees to supervise and train the intern. Also, place a high emphasis on observational or “job shadowing” activities. All of the pertinent parts of the internship, including the parties intentions, the goals and features of the program and the fact that no wages will be received by the intern, should be spelled out in an internship agreement drafted by an attorney. The internship agreement will add a critical layer that will make it difficult to later argue that he or she is entitled to wages. If you follow these tips and put the agreement in place, you will have a good start to defending any claims for wages brought by an intern.
Question: What if an intern waives his or her right to get paid? Is it okay for him or her to work for free?
No, it is not okay. In Brooklyn Savings Bank v. O’Neil, 324 U.S. 697 (1945), the U.S. Supreme Court held that a worker may not waive the protections of the FLSA. Thus, even if an individual voluntarily agrees to waive the right to minimum wage, courts will not recognize or enforce the agreement. If the intern is performing work that an employee would be paid to perform, that intern should also be paid. That is why having an intern is tricky and should be vetted by your attorney.
The information contained in this column does not constitute legal advice or opinion and should not be viewed as a substitute for legal advice. The information provided is based on laws and regulations in effect at the time of creation and is subject to change. The sending of this newsletter is not a privileged communication and does not create a lawyer/client relationship. Michelle D. Craig is a Partner in the Labor and Employment Practice Group at Adams and Reese LLP. She can be reached at michelle.craig@arlaw.com; 504-585-0441; www.adamsandreese.com. Please send her your questions.