The wave of class actions in the United States now includes a full frontal assault on unpaid internship programs, with plaintiffs’ attorneys securing some successful preliminary results in the Southern District of New York. These recent decisions should prompt all employers with unpaid internship programs to consult with qualified legal counsel to attempt to reduce or eliminate risk of suit while these issues wend their way through the appeal process and uniform guidance is available to employers.
These arguments by creative plaintiff’s lawyers to argue that unpaid interns are really employees in disguise are not new, but they have in the last sixteen months been renewed with vigor. Plaintiff’s lawyers have sought a strict application of a U.S. Department of Labor Wage and Hour Administrator’s six part test of determining when a trainee is not an employee. Under this test, an intern is not an employee if: