By Nancy L. Gunzenhauser 

As we’ve previously advised, make sure you are prepared for interns this summer! This summer there’s a new legal trend about interns. While wage and hour lawsuits are still hot, the new “it” trend seems to be laws that extend protection against discrimination and harassment for interns.  Recently, states and cities have been adding interns to the protected individuals under their human rights laws.

Retailers have long used interns, both to provide training opportunities for the interns and to supplement their workforce over the summer months. Whether an intern should be paid or unpaid (meeting the test of a “trainee”) is a determination that should be made using the federal six-factor test, and any applicable state tests. 

Regardless if the intern is paid or unpaid, certain policies and procedures need to be tailored to interns, and should differ from those given to regular employees. While recruitment efforts and offer letters need to be prepared just for interns, certain benefits and policies may need to be provided to all workers – even unpaid interns.

This year, New York City joined Washington, D.C. and the state of Oregon in passing a law protecting interns from sexual harassment, and other forms of employment discrimination. Now, several other states are seeking to expand those same protections to interns. In the past month, legislatures in California, New York, and Illinois have debated and voted on these bills.

The decision to give interns the same protections against discrimination and harassment as employees could affect how interns are treated under wage and hour laws. While the NYC law states that it applies to both paid and unpaid interns, it doesn’t make any determination as to whether those interns should be classified as employees, to receive minimum wage and potentially overtime.

The proposed New York state legislation addresses such concerns that some employers may have over the decision to extend anti-discrimination protections to interns. The current text of the bill, which has advanced to the third reading within the state Senate, provides that “nothing in this section shall create an employment relationship between an employer and an intern.”

A similar law is pending in Illinois, but it has been amended to only protect unpaid interns who meet a certain set of factors, which are similar to the federal six-factor test:

the person works for the employer at least 10 hours per week; the employer is not committed to hiring the person at the conclusion of his or her tenure; the employer and the person agree that the person is not entitled to wages for the work performed; and the work provides experience for the benefit of the person, does not displace regular employees, and is performed under the close supervision of staff.

The wording of the Illinois bill shows that legislators are aware that granting unpaid interns, who may not qualify as employees under the law, rights typically only afforded to employees could affect their employment status.

As more states continue to address whether interns, paid or unpaid, will be protected under anti-discrimination laws, stay tuned to the Retail Labor and Employment Law blog for any updates. If you’re having interns this summer in NYC, DC or Oregon, make sure policies and procedures are updated and are distributed to all employees and non-employee interns!

By: Jeffrey M. Landes and Susan Gross Sholinsky

The presentation slides and the recording for the webinar – Creating and Maintaining a Lawful Internship Program – are now accessible for your viewing.  If you would like to review, please contact Kiirsten Lederer to obtain instructions. 

During this timely and important webinar, we discussed how to minimize both your organization’s liability and the risk of wage and hour lawsuits. Specifically, participants walked away with answers to the following questions:

  • What are the best practices for recruiting and hiring interns, and what critical language should you include (or avoid) in offer letters, employment contracts, and other communications?
  • What assignments are appropriate for interns, and what tasks must you prevent interns from doing?
  • How does the Fair Labor Standards Act apply to interns?
  • What is the best way to handle various forms of remuneration (money, academic credit, company discounts, etc.) for interns?
  • How do the rules of for-profit and non-profit companies differ (and what rules apply to public-sector employers)?
  • How do child labor laws affect internships?
  • What are best practices for organizations—before, during and after an internship program?
  • Do company policies apply to interns?
  • What rules should you consider if you would like to hire an intern on a full-time basis in the future?
  • When does workers’ compensation or other insurance kick in, and how should you handle unemployment insurance?
  • What common blunders should you avoid when setting up school internship programs?
  • What ethical considerations apply when creating an internship program?

We look forward to your participation in future EBG educational programs.  Please click here for a list of upcoming webinars/events that may be of interest to you or your colleagues.