Summer interns—benefit or burden? This is the question DOL wants employers to consider when deciding what role unpaid summer interns will have.

If your employees sigh with relief when your summer interns show up, you probably should pay those interns! Keep in mind that most interns should be paid for their work contributions! In 2018, DOL issued guidance that states whether interns must be paid depends on who is the primary beneficiary of the employer-intern relationship.

The employer should look at all circumstances, and consider the following factors (but note no one factor is determinative):

  1. Expectation of compensation: The intern and the employer clearly understand there is no expectation of compensation.
  2. Education-like training: The internship provides training that is similar to training given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
  3. Link between duties and coursework: The internship is tied to the intern’s formal education program by integrated coursework or receipt of academic credit.
  4. Accommodating coursework: The internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  5. Limited in duration: The internship’s duration is limited to the period the internship provides the intern with beneficial learning.
  6. Does not displace paid employee work: The intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  7. Acknowledging employment is not guaranteed: The intern and the employer understand the internship does not guarantee a paid job at the conclusion of the internship.

What due diligence should employers do prior to creating an internship program?

Again, no single factor is determinative. Every intern is going to differ based on his/her respective coursework and request to perform certain duties. But employers can be proactive to decide if accommodating unpaid interns is possible in their workplace:

  • Try to match each intern’s coursework or interests with the activities or duties s/he performs. Preferably, the school will provide an assignment for the intern.
  • Offer “non-duty” days when interns shadow employees of their choice or travel to a job site to watch employees work, for a pure learning experience.
  • Train and advise managers that interns can’t be used to supplement paid employee work.
  • Have interns sign an acknowledgment form to solidify the understanding that the internship is unpaid and there is no guarantee of employment at the end of the relationship.
  • You can always pay the intern the applicable minimum wage as an employee.
  • If in doubt, call on the attorneys in the Woods Rogers Labor & Employment team.

As a side note, the #MeToo movement is real. All interns, paid or unpaid, should undergo harassment training and be aware of the company’s reporting procedures.