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Recent court decisions may curtail the use of unpaid internships at for-profit businesses, as companies now face substantial liability for improperly classifying interns under the "trainee exception" of the Fair Labor Standards Act (FLSA). Traditionally, unpaid internships have proven to be a crucial resource for inexperienced students and recent graduates. According to the National Association of Colleges and Employers, 55 percent of the class of 2012 had an internship during college, almost half of which were unpaid. Although companies are generally receptive to such arrangements, recent legal exposure will likely upend the traditional unpaid internship model.

Trainee Exception

The term "intern" is neither defined nor provided as an exception in the FLSA. Courts faced with the issue of whether unpaid internships are violative of the FLSA look to the U.S. Supreme Court's decision in Walling v. Portland Terminal, 330 U.S. 148 (1947), which established the trainee exception. In Walling, the court found that trainees who worked for seven or eight days for the defendant railroad without pay during "a course of practical training" were not "employees" under the FLSA based on "the unchallenged findings that the railroads receive no 'immediate advantage' from any work done by the trainees." Specifically, the court reasoned that the trainees did not displace any of the regular employees and the trainees' work did not provide any immediate advantage to the company business; rather, at times, it actually impeded it. The court held that the FLSA was not intended to penalize employers for providing the same kind of instruction akin to a vocational school at a place and in a manner that would most greatly benefit the trainee.

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