Is Your Unpaid Internship Unlawful?

When Interns Are Entitled to Compensation

Internships are supposed to give students an opportunity to get to know an industry, make valuable connections, and gain experience that will prepare them for paid work. Ideally, both the intern and the company benefit from the arrangement—but the position should primarily be for the intern’s benefit.

However, internships can sometimes be exploitative—especially when the internship is unpaid. And many students aren’t aware that some internship situations are unlawful. 

The Rules Under the Fair Labor Standards Act (FLSA)

Under the FLSA, interns usually aren’t considered employees. That means they aren’t required to be paid—as long as the primary beneficiary of the internship arrangement is the intern, not the employer. Generally that means the intern’s work assignments should be things that help them learn—not merely grunt work that doesn’t advance their skills. 

The definition of “primary beneficiary” can be a bit vague and subjective, however. In 2018, the Department of Labor tried to clarify things by releasing an updated “primary beneficiary test” that asks seven questions:

1. Is the intern aware that they won’t be paid?
2. Is the training they’re receiving similar to what they would have received at school?
3. Is the internship connected to the intern’s existing education program—for instance, are they receiving school credit; or is the school supervising the internship or providing complementary coursework?
4. Does the internship accommodate the student’s academic schedule?
5. Is the internship only limited to a period when the intern is learning beneficial skills?
6. Does the work being performed complement—rather than replacing—the work of existing employees while providing an opportunity to learn important skills?
7. Do both employer and intern understand that the internship does not automatically lead to a paid job at the end of the program?

In the case of a dispute, a judge would assess the answers to all of these questions in order to determine whether the intern or the employer was the primary beneficiary of the intern’s labor. None of these questions are definitive, and all questions don’t need to be answered “yes” to point toward an exploitative internship situation.

Do You Suspect Your Unpaid Internship Is Unlawful? Speak to an Attorney 

If you believe your unpaid internship violates the law, you may have recourse in court. If it’s found that you actually qualify as an employee, you may receive protections under the FLSA and may be entitled to minimum wage and overtime pay.

We have helped many people in this situation, and we can help you, too. Call us at 267-273-1054 or email us at murphy@phillyemploymentlawyer.com for a free, confidential consultation today.

The information provided here does not constitute legal advice. It is intended for general purposes only. If you have questions about a specific legal issue, you should speak to an attorney.