In 1947, the U.S. Supreme Court issued a mandate that the United States Department of Labor must use a six-factor checklist to help determine whether an internship is legal. The six factors included the following:
- The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be 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 close 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 wages for the time spent in the internship.
For many employers, these criteria haven’t always provided exacting clarity, but on June 2, 2015, the checklist was dismantled in a recent case brought by two former interns of Fox Searchlight Pictures.
The three-judge panel of the United States Court of Appeals for the Second Circuit ruled in favor of the defendant, deeming that the six-factor checklist was not necessary for determining the legality of an internship. Rather, the legality should center on who the primary beneficiary of the relationship is. Since internships are often tied to course credit, the judges see the intern as the primary beneficiary. The case is now in appeals in a lower court.
Regardless of how this case ultimately turns out, it’s certainly not breaking news that internship programs are not all designed with the same thoughtful and ethical consideration.
As many interns within a broad array of industries can attest, the work assigned to them sometimes misses the mark for providing adequate educational training, even from well-meaning employers. Unfortunately, some employers think that it’s perfectly appropriate to hand over all of the office’s menial tasks to interns or otherwise abuse these low-wage and no-wage workers.
This is all to say that whatever gray area of legality might have existed before, there is certainly more now.
Legality vs. Ethics
The public relations profession, led by the Public Relations Society of America (PRSA), is very concerned with ethical issues, including fair use of interns. PR agencies like ours abide by the Public Relations Society of America’s Professional Standards Advisory as a guideline for developing an internship program, which incidentally urges the use of the six-point checklist.
Some maintain that unpaid internships, while legal, aren’t ethical, based on the principle that all work should merit at least minimum wage pay, if not more. However, we know that there are certain times when an unpaid internship can provide a mutually beneficial arrangement.
We urge companies to follow the ethical standard borrowed from PRSA’s advisory on the subject: When paying an intern is not possible, make sure the internship adheres to all of the DOL guidelines and look for creative means of compensation and reciprocation. Likewise, we urge students who are currently in an internship or who are looking for one to be aware of potential abuse and speak up if the internship promised is not the one received.
Additionally, agencies can get into very deep trouble if they attempt to use unpaid interns to perform billable work. This practice amounts to nothing short of highway robbery of clients who count on agencies to be honest when determining the cost to perform a scope of work. Whether you are a client to an agency or an agency employee or intern, it is well within your rights to speak up if you suspect this practice is happening.
It’s notable that Oregon, Connecticut and New York have now passed laws extending to interns, safeguarding them from workplace discrimination and harassment. Legislation will continue to evolve as employers and interns navigate the gray area of what is fair.
Does your company use interns? We welcome you to chime in on this issue.
Elan Young serves as planning and development manager at Mary Beth West Communications, a digital communications and public relations firm based in Greater Knoxville, Tenn. She can be contacted at firstname.lastname@example.org.