Even interns themselves have an unwarranted view of internships. Many students pursuing internships are unaware of the fact that performing job duties that displaces another worker is in fact illegal. Not only does the government miss out on the lost taxes due but also the intern is unfairly not paid for work performed that didn't provide the educational value supposed.
Lawsuits File by Unpaid Interns
Lawyers in California that regularly handle employment matters have seen a jump in cases and lawsuits filed by interns. Even if an intern has voluntarily agreed to an unpaid internship, it is illegal in California if the internship is not of an educational nature. Only non-profit organizations and public employers (a.k.a. government entities) can provide unpaid internships. All private employers should assess the internship on the Fair Labor Standards Act (FLSA) six factor test below to decide on whether it should be paid or unpaid.
6 Factor Legal Assessment for an Unpaid Internship:
- Does the internship provide an educational experience as opposed to being related to an employer's actual operations?
- Does the internship benefit the intern? The internship should not primarily benefit the employer, but rather the intern. Most of the time, unpaid internships that are lawful are burdensome to the employer.
- Does the intern work alongside other employees, such as in shadowing? The intern should not displace another worker and provide very little or no work at all.
- Does the intern not provide an immediate advantage or service to the employer? According to law, an intern should not perform any tasks, even as small as getting coffee, mail pickup, or do any errands.
- Does the intern know there is no job guaranteed at the end of the internship?
- Does the employer and the intern understand and accept that they are not entitled to wages for a legally compliant unpaid internship? Of course, for the unpaid internship to be legally compliant it has to pass the previous five questions with a "yes" answer.
When an intern is improperly placed in an unpaid internship, Federal and California labor rules and laws apply to that employee. Therefore, the employer is subject to all associated fines and penalties for any labor law violations and the employee can receive monetary damages as a result.
Common Internships Offered:
- Internship - In California, this is most likely to be an illegal unpaid internship.
- College Internship - It is also likely that this should be a paid internship.
- Student Internship - This is also likely to be an unpaid internship that should be paid.
- Marketing Internship
- Pharmacy Internship
- Information Technology Internship
- Software Engineering Internship
- Sales Internship
- Accounting Internship
- Management Trainee Internship
- Human Resources Internship
An internship advertised in a job or career website in a general manner, such as "intern", is very likely to be an illegal unpaid internship due to the very nature in which it is advertised. Especially, if the advertisement talks of no educational value and does not imply all the characteristics of the six factor test above. Many employers advertising for internships even state the required skills, such as Microsoft Office, SQL, Java, Linux, and Customer Relationship Management. These internships probably advertise skills because the private employer expects the intern to work in this capacity and in a way that benefits the employer. These internships should be paid as it would not pass the six factor test set out by the FLSA.
If you need expert help in assessing whether an internship should have been or should be paid or unpaid and are located in California, call our lawyers at 855-200-ATTY (855-200-2889) or visit the lawyers' website and fill out our confidential online form.
