A few weeks ago I did an entry on the social impacts and elements of internships in the arts and very briefly referred to the question of whether unpaid internships were legal.
It only occurred to me later that the whole legality question wasn’t really dealt with very well. I read a lot about it, but didn’t really pass the information along or give readers the sense of urgency to follow through.
Well, hat tip to the ever resource full Non-Profit Law Blog which linked to an entry on Blue Avocado which really tackles the question in much greater detail than the NY Times article I had linked to in my previous entry.
The federal criteria to which you must adhere according to Ellen Aldridge at Blue Avocado are:
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.
You must meet all six or else pay minimum wage. Number 4 is probably the toughest to adhere to. The fact that non-profits can have volunteers adds another dimension to the whole question. You should really read the entry because I can’t get into all the nuances like laws dealing with stipends and the nature of functions being performed without reprinting the entire entry. There is, in fact, a significant difference between an intern and a volunteer, part of which determines the type of work each can perform.
At the end of the entry, Ellen Aldridge recommends two NY Times articles on the topic. The first is the one to which I linked in my previous entry. The second is the guidance the California Labor Department provided on the subject of unpaid internships.
The guidance really just supports the expectations an intern would have of their experience– something relevant to their career goals and not predominantly copying and filing.
In that situation, the agency suggested that payment was not required if an intern “performs culinary tasks directly pertinent to his or her education only, is closely supervised,” and “does not displace regular workers.” But, the agency said, if a restaurant required an intern to bus tables or wash dishes, that would probably be considered an employer-employee relationship and the intern would most likely have to be paid.
Mr. Balter cited another guidance letter that said film studios should pay college students who do routine work like delivering messages, filing tapes and clipping newspaper articles, partly because the work was so similar to that of regular employees and could displace such employees.
In the new guidance, the agency noted that it had previously concluded that interns should be paid if they did any work normally done by a regular worker.
But showing more leeway, Mr. Balter wrote that interns could do occasional work done by regular employees, as long as it “does not unreasonably replace or impede the education objective for the intern and effectively displace regular workers.”
This is only the interpretation in the state of California, and a recently altered one at that. Your state may differ so it will be prudent to see where things stand locally. It is promising that they take their lead from the 10th Circuit Court of Appeals which is considered more moderate than the 9th Circuit in whose jurisdiction California falls.
"Though while the author wishes they could buy it in Walmart..." Who is "they"? The kids? The author? Something else?…