In today’s economy, internships are often a critical aspect of finding an entry-level position. More and more students are accepting internships to provide themselves with experience prior to applying for a full-time job. Almost a third of college students report working at an unpaid internship during their college years. Despite their popularity, interns face a lot of issues at their workplaces, like low or no pay, menial labor, and a lack of protections. It is important to know your rights as an intern to ensure you receive a meaningful and positive internship experience.
Yes, unpaid internships are legal if they primarily benefit the intern. The Fair Labor Standards Act (FLSA) has a test, the “primary beneficiary test”, for determining whether an internship is legally allowed to be unpaid. The “primary beneficiary test” has seven criteria, which according to the Department of Labor, are:
- The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
- The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
- The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
- The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
- The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
- The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
- The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.
Different courts can differ widely in how they apply the seven factors of the “primary beneficiary test”, explained in Question 1. This text is a flexible test, with no single factor deciding the case. Thus, whether an intern is an employee under the FLSA is decided based on the details of each specific case. Additionally, the factors listed apply to for-profit employers, and governmental and nonprofit organizations have more leeway to hire unpaid interns.
If you do not meet the criteria to be an intern based on the “primary beneficiary test”, explained above, you are actually an employee. This means that you are entitled to both minimum wage and overtime pay, as well as other employeee rights and benefits.
If you are a paid intern, or an employee who is called an intern, you should be subject to overtime laws. If you are an unpaid intern, you have fewer protections from the law, and may be legally asked to work long hours. If you are an unpaid intern and are working long hours, you should assess the criteria for unpaid internships, explained in Question 1 above, to determine whether you should be classified as an employee. If you are not an employee, you could consider whether the long hours are worth the learning experience you are receiving.
Paid interns, or employees who are called interns, have the same employment rights as other workers, such as a right to overtime, protection from harassment, and legislatively mandated leaves. All paid and unpaid interns are likely protected from illegal discrimination based on a protected characteristic like race, religion, gender, age, and sexual orientation. However, many states don’t have many laws protecting unpaid interns from sexual harassment.
Yes. Generally, nonprofits have more leeway to hire unpaid interns, who are considered volunteers freely giving their time to the organization in order to further their mission. That means that courts will look at the criteria of the “primary beneficiary test” less strictly than if the internship was with a for-profit company. That also means that there are fewer protections for unpaid interns who work for nonprofit organizations.
Yes. Unpaid internships with the government are viewed similarly to unpaid internships with nonprofit organizations. Courts give the government more leeway to hire unpaid interns, who are considered volunteers freely giving their time to further the mission of the government agency. This means that unpaid interns working for the government are less likely to successfully challenge their internship status.
Generally speaking, fellowships normally are more educational experiences that involve professional development or academic research, whereas internships are a chance to get professional experience doing regular work. Temporary jobs, on the other hand, are just short-term positions that do not provide any benefit to the employee beyond what is involved in a typical employment relationship.
Legally, the title of the experience is not relevant to deciding whether the experience is allowed to be an unpaid internship. Courts instead will look at whether the intern is the “primary beneficiary” of the experience in determining whether the organization offering the internship is required to pay the intern. Courts use a seven-factor test, explained in Question 1, to make the “primary beneficiary” determination.
Generally, externships provide academic credit for their externs, while internships provide experience. However, the title of the experience is less relevant to courts than what the experience entails when courts are determining whether the internship/externship should be paid or not. If an organization provides academic credit for the experience, courts will take that factor into consideration in favor of allowing the internship to be unpaid.