The subject of unpaid interns doing productive work has become a hot button in recent months. High profile lawsuits have been filed, and it has become a reflex response among informed employers not to entertain the possibility of unpaid interns. Undoubtedly the subject in part has taken center stage because of the difficulty young professionals have in obtaining paid jobs. They understandably want to build their resumes, and many would be quite willing to work for free if the alternative is no work at all.
In the midst of that, the President of the American Bar Association implored the U.S. Department of Labor to allow legal employers to employ law students as unpaid interns. The letter set forth certain conditions that would be part of the proposed arrangement, including most significantly that the law students could work only on pro bono matters.
Earlier this month, the DOL in effect agreed to this arrangement. The DOL specified that the internship would be required to provide training such as might be received in an educational institution, could not displace regular paid employees, and does not give the company providing the training an immediate advantage.
The “no immediate advantage” rule seems like the trickiest aspect of this guidance. How does any business define that? By definition, do for-profit businesses do anything that in some fashion does not provide an advantage? More broadly, does the DOL’s attempt to work with the legal industry signal a willingness to do so with employers generally? Can employers use this letter as somewhat of a roadmap to possible interns in their own business?
In short, the DOL’s letter may signal limited opportunities for employers to safely explore internships. Employers should still consider it a risky area, however, and consult with counsel before bringing on unpaid interns. Among other things, the focus on interns generally in 2013 has led to the creation of advocacy groups focused on this issue, such that any broad internship program may be a public relations issue even if it is legally sound.
