Two weeks ago I reported that the Department of Labor was going to start cracking down on for-profit employers that use the services of unpaid interns. The proof, as they say, is in the pudding, or in this case, on the DOL’s own website. Just moments ago the DOL released Fact Sheet #71, entitled, Internship Programs Under The Fair Labor Standards Act. In this fact sheet, the DOL affirms that internships in the “for-profit” private sector will most often be viewed as employment, which must be paid at least the minimum wage and overtime compensation for any hours in excess of 40 in a work week.
The six factors that comprise a lawful unpaid internship remain as they have been for years, and as I discussed a couple of weeks ago. Yet, the DOL went further, and explained how most internships are, in reality, paid employment in disguise as opposed to extensions of education or training:
[I]f the interns are engaged in the operations of the employer or are performing productive work (for example, filing, performing other clerical work, or assisting customers), then the fact that they may be receiving some benefits in the form of a new skill or improved work habits will not exclude them from the FLSA’s minimum wage and overtime requirements because the employer benefits from the interns’ work…. If an intern is placed with the employer for a trial period with the expectation that he or she will then be hired on a permanent basis, that individual generally would be considered an employee under the FLSA.
If I was an employer, I would be very careful in the use of unpaid interns. As the publication of Fact Sheet #71 points out, the DOL is watching.