If you are working or planning to work as an unpaid intern in New York, it is important to know your rights under the law. Recent federal regulations control whether an internship can be unpaid. Also, according to an article in the New York Times, the New York City Council has passed legislation granting unpaid interns the right to sue for employer harassment or discrimination.
Legal Requirements for Unpaid Interns
Interns are exempt from minimum wage and overtime pay requirements under the federal Fair Labor Standards Act (FLSA) only when there is no employment relationship, a U.S. Department of Labor (DOL) fact sheet states. The internship must be structured around an academic experience for the intern rather than the operations of the employer.
Employers may not use unpaid interns to replace other employees or to augment the workforce during peak production periods. If they do, those interns may be entitled to minimum wage and overtime pay.
For an internship to qualify as unpaid under federal law, the intern must not perform routine work of the business on a regular basis. The business must not be relying on the efforts of the intern. When interns are performing productive work for employers, the fact that they are learning new work skills and receiving some benefits in the form of experience does not exclude them from FLSA’s minimum wage and overtime requirements, according to the DOL.
The duration of an unpaid internship must be fixed and established before it begins. When an intern is placed with an employer for a trial period with the expectation of permanent employment, that intern is considered an employee under FLSA and must be compensated under the law.
Should you get Paid for your Internship?
According to the DOL, there are certain circumstances under which individuals can participate in private sector for-profit internships or training without being compensated. An intern is considered an employee and must be paid at least minimum wage, plus overtime for anything over 40 hours a week, unless six criteria are met:
- The internship must be similar to training provided in an educational environment, even if it includes actual operation of the employer’s facilities.
- The experience of the internship must be for the benefit of the intern.
- The intern must be closely supervised by existing staff, and may not displace regular employees.
- The employer providing the training must receive no immediate advantage from the activities of the intern, and those activities may actually occasionally impede the employer’s operations.
- The intern will not necessarily be entitled to a job when the internship concludes.
- Both the employer and the intern understand that the intern is not entitled to wages for the period of the internship.
If you are serving as an unpaid intern under circumstances that do not meet the six criteria above, it is in your best interest to consult with our experienced Long Island employment lawyers. You may be entitled to wages for the work you are performing, including back pay and overtime pay.
Unpaid Interns and Workplace Discrimination
In the past, unpaid interns had no legal recourse for discrimination and harassment in the workplace because they were not employees and, therefore, were not protected under employment and labor laws. However, the New York Times reports that legislation passed by the New York City Council provides unpaid interns with the right to file civil lawsuits if they are harassed or discriminated against by their employers.
According to the Times, this legislation was prompted by a sexual harassment lawsuit brought by an unpaid intern in New York City. The suit was thrown out by a federal judge because the intern was not being paid and therefore was not an employee and not protected under state and city human rights laws prohibiting discrimination in the workplace.
Lawmakers in Washington have introduced legislation to close the loopholes that exclude unpaid interns from protection under the federal Civil Rights Act, according to a Huffington Post article. These bills, if passed, would prohibit discrimination against unpaid interns on the basis of religion, race or sex, and should such discrimination occur, unpaid interns could sue under the Civil Rights Act.
How our Long Island Employment Lawyers can help Unpaid Interns
Our Long Island employment lawyers at the Law Office of Cohen & Jaffe, LLP have decades of collective experience. We take the guarantees and protections provided to workers under employment law seriously and pursue employment claims for workers who have been wronged.
If you have been serving as an unpaid intern and suspect that, legally, you should have been paid, or if you have been harassed or discriminated against as an unpaid intern, contact our firm for a free case evaluation. Our goal is to ensure that your rights are protected and you are treated fairly under state and federal law, and we will aggressively pursue any compensation you are entitled to receive on your behalf.
- Fastweb: Let’s Get Legal: Guidelines for Paid or Unpaid Internships
- New York Times: Unpaid Interns Gain the Right to Sue
- U.S. DOL: Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act
- Huffington Post: Democrats Want To Extend Civil Rights Protections To Unpaid Interns
For a free legal consultation with a lawyer serving Long Island, call 516-358-6900