I usually don't dare to venture outside of my limited area of expertise, but a recent article about the Black Swan case reminded me that I had been meaning to talk about student interns for some time. The Black Swan matter involved a movie studio that got gigged for using unpaid interns to do work that otherwise would be done by paid employees. It should be a wake-up call for many.
I got to know the law in this area when I was teaching law full time and there would be an occasional inquiry from either a colleague or a supervisor in a proposed intern placement as to whether the Fair Labor Standards Act applied. FLSA governs minimum wages and overtime.
Part of the law school education regime involves hands-on learning. The rub is that the students are not supposed to be getting credit for paid work, only for education. And the FLSA standards coordinate pretty well in that they exempt intern work from wage and hour laws if the work is more learning than earning.
The Department of Labor employs a six-part test. To qualify as true intern work, all of the factors must be met. The test and some explanatory materials can be found at www.dol.gov/whd/regs/compliance/whdfs71.pdf. Here are the factors:
• The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment.
• The internship experience is for the benefit of the intern.
• The intern does not displace regular employees, but works under close supervision of existing staff.
• The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded.
• The intern is not necessarily entitled to a job at the conclusion of the internship.
• The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
Lawyers are going to be getting more calls from both students and law schools in the next few years about intern opportunities. Many schools are adding "hands-on" or "live-client" components to their programs, and some are requiring some of it before students graduate. New York now has a requirement of a minimum number of pro bono hours before an applicant can take the bar exam. Other states are considering following suit.
When I worked as disciplinary counsel, we always welcomed interns, and we had some great students come through the office. And, as you would expect, we had some colorful characters who added to the general craziness of the place. I guess it is better to go to the wrong courthouse when you are an intern than when you are a lawyer! An example of how an employer's operations might be impeded is when the intern who goes off radar also has the file with him.
The thing to remember when using interns is that they are expected to be more hindrance than help. They are not hamburger helper, doing filing and other work that paid staff would be doing "but for" the intern. The employer should be doing as much teaching as supervising.
Some schools have excellent faculty who supervise their interns and make sure the program works for both the employer and the student. But I have seen some instances where less engaged faculty basically signed off on experiences which in retrospect might have run afoul of the rules. A colleague told me that she had once gotten two certifications from two faculty members that they had reviewed and supervised the same intern's work experience. It was apparent that neither had, and they were just signing the forms to accommodate a student who needed some credits to graduate.
Law schools can get into trouble with accrediting agencies if they don't follow the intern rules. That is not really a bother for lawyers using free labor. But the Black Swan case indicates that lawyers welcoming interns had better be aware of their responsibilities and possible jeopardy for not getting it all right.
There is much talk, locally and nationally, about changing how we teach new lawyers. I am aware of two committees in Connecticut discussing this. There is also an American Bar Association committee working on this and many states are also discussing the topic. As the process morphs over the next few years, we are going to need the advice and counsel of folks a lot more conversant in labor law than me.•