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How To Beat The Legal Heat This Summer Internship Season

Law360—Mike LaSusa

Businesses and early-career workers are gearing up for this summer's internship season, spurring employment attorneys to caution that keeping internship programs compliant with the law is no day at the beach.

This summer, new issues tied to the ongoing COVID-19 pandemic will be layered on top of longtime legal pitfalls associated with internship programs, like wage and hour intricacies and harassment risks, attorneys said. 

Here, Law360 shares some tips for maintaining smooth legal sailing when it comes to internships.

Approach Classification with Care

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The U.S. Department of Labor issued guidance on whether to classify workers as unpaid interns or employees in 2018, embracing a standard that focuses on whether the intern or their employer is the "primary beneficiary" of the relationship.

That standard is based on a seven-factor test for determining interns' status that was laid out by the Second Circuit in its 2015 ruling in Glatt v. Fox Searchlight Pictures Inc. and has since been adopted by other federal appeals courts. The test looks at whether there's a clear understanding that no expectation of compensation exists, whether interns receive training similar to what they'd get in an educational environment and the extent to which the internship is tied to a formal education program, among other factors.

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Some interns are paid stipends or set amounts, but those arrangements might run afoul of requirements related to overtime and other wage and hour matters, said Justin Swartz, a partner at worker-side firm Outten & Golden LLP.

"Often companies may feel like they're doing enough just by paying them at all, but that's not consistent with the law," he said. "Just because interns are paid doesn't mean they're paid according to the law."

Keep Up with Remote Work Obligations

Although many workers are starting to receive COVID-19 vaccines and many businesses are beginning to reopen, remote work is here to stay — and that means remote internships are too, attorneys said.

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Keeping track of hours worked can also be a challenge in a remote setting, Swartz said, advising interns to properly record and report all the time that they work.

"Interns are workers who are new to the workforce and don't always know about those types of conventions," he said. "You should report your hours accurately, not just report the hours that you think your supervisor would want to see."

However, he acknowledged that tracking hours while working remotely might be a new experience for someone who's early in their career.

"When you're working remotely, sometimes work time bleeds into personal time," Swartz said. "For interns working from home, that's something they should pay particular attention to."

Stay Mindful of Power Dynamics

With many businesses reopening, including restaurants and bars, attorneys expect after-work socialization to return. That brings legal risks along with it, especially when it comes to interns, attorneys said.

"Any time an employee is out with a supervisor or boss having drinks, there's the potential for the power imbalance to result in inappropriate behavior," Swartz said. "That's just multiplied when you're talking about an intern who's new to the workforce."

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"Interns are generally more vulnerable than full-time employees because they're young, because they're learning, because they need the opportunity [and] because they don't have much experience in the workplace," Swartz said.

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--Editing by Abbie Sarfo.