Educational trainee or volunteer? When an intern is not exactly an intern

If there’s a business owner who’s not looking to save some cash, I haven’t met her yet. And, considering that labor tends to be the biggest expense for most employers, finding ways to save money on labor seems like a good idea, wouldn’t you say?

But stop right there if a reduction in labor costs is your main motivation for extending an invitation to an intern. A bonafide internship, that is, one that’s not likely to run afoul of DOL regulations, can’t be based on your financial need.

So when is an intern not exactly an intern? For starters, when you’re expecting the intern to help with the bottom line.

Here are a few other no no’s.

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Assuming your intern’s college credit invalidates any need to provide real training.

Just because your intern is receiving credit from his college doesn’t mean you can assign tasks willy nilly. You’re still obligated to provide training “similar to [that] which would be given in an educational environment” to be in compliance.

Assuming your nonprofit status gives you special privilege.

It’s true that nonprofits can accept help from unpaid volunteers, and most for-profit organizations can’t, but there’s a significant difference between an “educational trainee” (i.e., unpaid intern) and a volunteer. Unpaid internships—regardless of employer status as for- or non-profit—have to be structured according to the DOL regulations to be lawful.

Assuming none of this really matters.

If you’ve taken a loosey goosey/”no harm no foul” attitude toward your internship program, don’t be surprised if that attitude comes back to bite you. Donna Karan, Fox Searchlight, and Gawker Media (to name a few) all learned the hard way that not every intern is grateful to gain any old kind of experience at the expense of pay.

Assuming all work qualifies as legitimate training.

The DOL regulations make it clear that internships should be student focused and not employer focused, or, to put it another way “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.” So, while your intern may be thrilled to head that special project you’ve been trying to get off the ground for the last six months, any outcome your organization is too heavily vested in probably isn’t an appropriate responsibility for your intern. Of course, your intern can contribute to the project—while under the supervision of an existing staff member.

Assuming what you did in the past is good for the here and now.

See above about Fox Searchlight, Donna Karan, etc. Unpaid internships were a staple of those industries, but just because something has been done time and again doesn’t mean it’s lawful.

When done properly, unpaid internships are a win-win for everyone—intern, employer, and supervising staff.

When done improperly, however, unpaid internships can be downright exploitative and a huge, unforeseen headache for employers.

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Jessica Soroka

I am always in need of resources such as this white paper. Thank you.