DISCLAIMER: This post is intended only as general information regarding worker misclassification and employment laws. It is not legal advice and does not establish an attorney-client relationship. If you need specific legal advice regarding your workforce, please contact an attorney to discuss your circumstances.
Shockingly, employers continue to call me with penalties and justifications for not paying their interns. In some ways, I understand their logic. I have a fondness for free trials, much like anyone else. Perhaps it began for me at Baskin-Robbins, when my older sister worked there as a teenager. Those tiny spoons allowed me to sample the 31 flavors, trusting that I would buy one of them.
Today, we are lured into purchases through:
- 30-day free trials of software
- Overnight testing of mattresses and cars
- Wine and beer tastings
- Free legal consultations
Similarly, we can test employers through school internship programs before transitioning to permanent employment. However, not all unpaid internships meet legal standards. Here are the justifications I often hear for this unlawful behavior:
1. “Everyone in this industry does it.”
No, not everyone in any industry has unpaid interns. I’d also wager that competitors in your industry who strictly adhere to labor laws are not only surviving but thriving. They often boast happier, more loyal employees.
2. “I paid in ways other than wages.”
Experience, lunches, and other perks do not substitute for wages. If you’re a for-profit business and the work your interns perform doesn’t count towards educational credit, you likely owe wages.
3. “We were still interviewing or testing them.”
No. The moment you asked the potential intern to come back on a specific date and at a specific time to demonstrate skill completing a task or project, you likely hired that person. Interns typically don’t have experience. That’s why they are willing to work without pay.
A test is usually short and generic, providing you only enough information to determine what guidance you will need to provide the potential intern to meet the guidelines of the academic program and succeed in the industry. Also, a shift of three or more hours is typically training, and training is part of work you pay for at the minimum wage.
Contrary to popular belief, interns are not free labor.
Internships Are Partnerships
I’m aware that several business, career, and financial experts encourage “volunteering” in new industries to enhance skills and marketability. However, they are typically non-lawyers and operate outside New York State. One of them even invited me to volunteer for him at an event in New York City. Despite earning tens of thousands of dollars from ticket sales, he staffed the event with individuals who received nothing more than experience and exposure to guests signing in and inquiring about restrooms. He used his fame to exploit his fans, providing the workers:
- No compensation
- No event tickets
- No copies of any of his books
- Nothing of monetary value
His actions arguably violate NYS law. While he probably had the resources to cover any penalties he might have been assessed, you likely don’t. It’s simply not worth the risk to your finances or your reputation.