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Unpaid Interns and Wages Due

For many years people presumed that interns need not receive a wage because they were “learning on the job.” A Brewster Employment Lawyer, however, can review your employment arrangements to ensure that you are not an intent that is entitled to wages. If you have worked as an unpaid intern you may be entitled to payment for your work, even if there was a signed contract identifying you as an intern.

In 2010, the United States’ Department Of Labor's Wage and Hour Division issued Fact Sheet #71, which identifies the test for whether an intern should be paid. Our Brewster Employment Lawyers have substantial experience in handling unpaid intern cases. 

The six criteria are as follows:

The internship, even though it includes actual operation of the facilities of the employer, must be similar to training that would be given in an educational environment. In other words, the work must actually benefit the intern in the same manner as a class or lab. Often times the work could be performed for college or school credit. If the work was not educational, then the intern needs to be paid the proper salary for someone in the private sector.

The internship experience must be for the benefit of the intern. This provision means that the work must actually be intended to help the intern develop knowledge, skill, or experience in their respective field. An internship that merely benefits the employer cannot be unpaid.

The intern may not displace a regular employee, but, instead, works under close supervision of existing staff. This test turns on whether the work performed is for the benefit of the employer and not the intern. An internship should not be an excuse for an employer to receive work for no compensation.  Your Brewster Employment Lawyer can evaluate your personal experience with an internship to determine whether or not you should have received compensation. 

The employer providing the training must derive no immediate advantage from the intern, or the intern’s work. The Department of Labor believes that an intern should not ease the load on existing employees. If anything, an unpaid intern should reduce productivity as the employee is required to devote some of their work time to instruction, training, and supervising of the unpaid intern.  

The next element turns on whether the intern is not necessarily entitled to a job at the conclusion of the internship. Unpaid internships cannot be a probationary period for a future employee. There is no problem if the intern is offered a position after the internship, but there cannot be a promise of employment arising out of the internship.

The final element is whether employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.  A Brewster Employment Lawyer can review any agreement to see if it would preclude any claim.

Note that none of these factors are controlling – it is a sliding scale, so the existence of a written contract does not, alone, mean you are not entitled to wages for the unpaid internship. If you were entitled to wages, under New York law, you are entitled to recover, not only the amount of wages someone in the field would earn for the work performed, but also a 25 percent penalty for a willful failure to pay the wages, and attorneys’ fees. Contact an attorney at Lynch Schwab PLLC today for more information regarding your internship. 

Posted on July 10, 2014 in For Our Clients