GUEST POST: What legal rights do unpaid interns have?

guestblogger.jpgToday we have a guest blogger at The Employer Handbook. It’s Samantha Hopkins. Samantha is a law student who just received her big break.

She gets to guest blog at The Employer Handbook!

(Want to guest blog on an employment-law topic at The Employer Handbook? Email me).

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The internship plays a valuable role in America’s businesses. Internships are a common way for high school, college, and post college students to gain valuable experience, develop skills, and build their resume. Internships also provide many establishments free labor and fresh ideas in exchange for a potential recommendation. Unfortunately many interns walk into their first internship without knowing what legal protections they have — or don’t, as the case may be.

The Latest Ruling

Last year, in New York, a federal district court was presented a case where an intern was allegedly sexually harassed. In normal circumstances, employees would be protected from sexual harassment in the workplace under the Title VII of the Civil Rights Act of 1964.

This was not a normal case.

The judge found no violation of the law because Title VII only covers “employees.” As an unpaid intern, the plaintiff was not considered a Title VII employee. Therefore, she lacked standing to sue and the lawsuit was dismissed.

(Editor’s Note: Legal or not, there is no incentive to condone sexual harassment of unpaid interns. Such behavior can easily permeate the workplace and adversely affect individuals who will have standing to sue. It’s also no way to attract interns.)

Real Life Implications

This outcome leaves a serious loophole in workplace civil rights for unpaid interns. This loophole, if callously exploited, could create many potential problems:

  • Interns will underperform when facing employees or employers who are harassing them.
  • Employees that see interns being harassed unchecked by management might be less willing to report harassment that happens to paid employees.
  • An atmosphere might develop where harassment becomes the norm.
  • Employees might feel their only option is to leave the poisonous atmosphere, with employer bearing the financial burden of attrition.

Will Interns Be Protected Anytime in the Future?

Presently, only one state protects interns from harassment or other unfair workplace practices. Last June, Oregon became the first state to pass a law that extends anti-discrimination protections to unpaid interns. Interns fall under the protection of this law, provide they meet satisfy three requirements:

  • The employer is not committed to hire them;
  • The employer and intern have a written agreement that they are not entitled to wages; and
  • The work performed supplements educational training, provides experience, doesn’t displace employees, is closely supervised, and provides no advantage to the employer doing the training.

If the standards are met, the intern is protected from employment discrimination, sexual harassment, unlawful discrimination, and retaliation for whistleblowing.

While Oregon is currently the only state that protects interns in the United States, New York has recently introduced a bill that will, if it becomes a law, offer protection to all interns.

We may see a slow trickle of states jumping onto the bandwagon to protect their citizens. In the meantime, all interns should carefully vet the reputation of the company and employees before signing up for an internship. Work experience is not worth experiencing harassment in the workplace.

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