By Dennis Hetzel, Executive Director
ONA legal counsel Lou Colombo advises members to be cautious when using unpaid interns. There has been a spate of legal challenges under the Fair Labor Standards Act by unpaid interns, and the claims have developed some traction. The issue is whether the intern is an “employee” whose work benefits the employer as opposed to a “trainee” whose work is primarily for the intern’s own benefit.
The Labor Department lists six factors that should go into a determination of the issue. Only one of the six is whether the intern and employer understand that the intern is not being paid. Even if that is the understood arrangement, the intern may be able to prevail in later litigation.
The other factors are (1) whether the internship is similar to training one would get in an educational environment; (2) whether it is for the benefit of the intern; (3) whether the intern does not displace regular employees; (4) whether the employer derives no immediate advantage from the activities of the intern, and may actually have his operations impeded; (5) whether the intern is not necessarily entitled to a job at the end of the internship. If the intern does primarily low level tasks that would otherwise need to be performed by a paid employee, the intern has a good case for being paid.
Colombo briefed the ONA Board of Trustees on this subject recently and said the situations in which interns can go unpaid are getting narrower. Of particular concerns are internships in which the student is primarily performing “busy work” that has little or no educational value. However, Colombo said all unpaid internships are under increasing scrutiny by lawyers and government officials.
The practice is particularly widespread in the broadcast and magazine industries, less so in the newspaper industry.
Colombo advises members with questions about the specific nature of any unpaid internship programs at their newspapers to consult with their local counsel. The safest course, he said, is to simply pay at least the minimum wage to all interns.
This article from Poynter about Conde Nast ending its internship program provides some examples and links to understand this issue in more detail.