The issue of what does or does not constitute a legal, unpaid internship has never been more hotly debated. With the recent slew of class action lawsuits showing no sign of slowing down, companies are becoming both more savvy and more wary of offering unpaid positions. While a legal unpaid internship must meet six special criteria set down by the Department of Labor, companies have become somewhat lackadaisical of late in their approach to unpaid help, sometimes seeming to view interns as free labor rather than trainees who require oversight and teaching. As such, the class action lawsuits – filed against such companies as Fox, MSNBC, Madison Square Garden, Columbia Recordings Group, and Gawker, to name a few – allege violations of the Fair Labor Standards Act and seek financial compensation for time worked without pay.
Does the Fair Labor Standards Act apply to law students working pro bono?
This developing trend has made businesses, including law firms, more wary of falling foul of the law. The practice of pro bono work – whereby law students undertaking work on cases without receiving pay – was suddenly brought into question. Could law firms face legal action if interns were found to be working at the employee-level without receiving compensation? In June 2013, Laurel Bellows, the president of the American Bar Association, asked the Department of Labor to provide clarification. Does the Fair Labor Standards Act and its protection of internships apply just as much to law students working pro bono? It was an important question with the potential to dramatically change the way lawyers are trained.
On September 12, the Department of Labor returned its decision, stating clearly that the FLSA does not prohibit unpaid pro bono work at law firms, provided that the work is non-fee generating, is not treated as billable, and does not free up staff to work billable hours on other cases. Essentially, the firm cannot gain an immediate advantage from the student’s work.
For students, law firms, and the public at large, this is an important decision that should guarantee the tradition of training of law students to continue, while enabling law firms to provide pro bono services. It’s important to note that the FLSA exemption for legal pro bono interns does not apply to recent graduates, even if they have not yet been admitted to the bar. Pro bono work at law firms is exempt from FLSA regulations as long as the work is carried out by a student.
The FLSA currently lists six requirements for an internship if the worker is not being paid. These are:
1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4.The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
5.The intern is not necessarily entitled to a job at the conclusion of the internship; and
6.The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
The Department of Labor’s clarification of law students’ pro bono work and its place under the FLSA should prevent confusion and enable firms to continue providing students with their first hands-on experience in the legal field. While the multiple class action lawsuits against businesses that have offered allegedly illegal internships continue, law firms, at least, can go forward knowing that the line between legal intern and illegally misclassified employee has been clearly drawn.
Author Bio: A founding partner of the Marlin & Saltzman legal practice, Louis M. Marlin has practiced since he was admitted to the bar in 1972. With extensive experience in mass torts, class actions, insurance cases and employee misclassification, Mr. Marlin has been regularly identified by Los Angeles Magazine as a “Super Lawyer”. Mr. Marlin graduated from the University of California Hastings College of Law.