Intern Rights by (popular) States
1. New York
When can an internship be unpaid?
The New York Department of Labor established an eleven-factor test, similar to that of the Fair Labor and Standards Act’s “primary beneficiary test,” to determine if an internship can be unpaid. All factors must be met to satisfy the test. New York’s eleven-factor test is as follows:
- The training, even though it includes actual operation of the facilities of the employer, is similar to training provided in an educational program;
- The training is for the benefit of the intern;
- The intern does not displace regular employees, and works under close supervision;
- The activities of trainees or students do not provide an immediate advantage to the employer. On occasion, operations may actually be impeded;
- The trainees or students are not necessarily entitled to a job at the conclusion of the training period and are free to take jobs elsewhere in the same field;
- The trainees or students are notified, in writing, that they will not receive any wages and are not considered employees for minimum wage purposes;
- Any clinical training is performed under the supervision and direction of people who are knowledgeable and experienced in the activity;
- The trainees or students do not receive employee benefits;
- The training is general, and qualifies trainees or students to work in any similar business. It is not designed specifically for a job with the employer that offers the program;
- The screening process for the internship program is not the same as for employment, and does not appear to be for that purpose. The screening only uses criteria relevant for admission to an independent educational program; and
- Advertisements, postings, or solicitations for the program clearly discuss education or training, rather than employment, although employers may indicate that qualified graduates may be considered for employment.
As an intern, am I protected from harassment and discrimination?
Yes. Under New York law, an intern is someone who performs work for an employer for the purpose of training under the following circumstances:
- The employer is not committed to hire the person performing the work at the conclusion of the training period;
- The employer and the person performing the work agree that the person performing the work is not entitled to wages for the work performed; and
- The work performed:
- Provides or supplements training that may enhance the employability of the intern;
- Provides experience for the benefit of the person performing the work;
- Does not displace regular employees; and
- Is performed under the close supervision of existing staff.
If your internship satisfies all of these requirements, then you are protected with regard to the following areas:
- Selection, retention and the terms, conditions and privileges of the internship;
- Discrimination in receiving, classifying, disposing or otherwise acting upon applications for internships;
- Advertising and inquiries, making it unlawful to “print or circulate or cause to be printed or circulated any statement, advertisement or publication, or to use any form of application or employment as an intern or to make any inquiry in connection with prospective employment, which expresses directly or indirectly, any limitation, specification or discrimination”;
- Retaliation for opposing discrimination;
- Pregnancy discrimination.
As an intern, am I protected from sexual harassment?
Yes. Under the New York State Human Rights Law, interns are protected when an employer engages in unwelcome sexual advances, requests for sexual favors, or other physical or verbal conduct of a sexual nature when:
- Submission to such conduct is made (either explicitly or implicitly) a term or condition of the intern’s employment;
- Submission to, or rejection, of such conduct by the intern is used as a basis for decisions affecting such intern; or
- Such conduct has the purpose or effect of interfering with the intern’s work performance, by creating an intimidating, hostile or offensive working environment.
Is an intern the same as a trainee?
The term ‘intern’ has generally been used by employers to include anyone who is working in an unpaid or low-paid position, and is a student at the time he or she is working. However, the term ‘intern’ traditionally refers to someone who has completed medical school and is engaged in an additional year of supervised training for their respective medical profession. Under California law, intern-like workers who are unpaid or are paid less than minimum wage are referred to as ‘trainees.’ Trainees can be in any field and may be exempt from federal overtime and minimum wage requirements.
When can a trainee position be unpaid?
The California Division of Labor Standards and Enforcement (DLSE) established a six-factor test, similar to that of the Fair Labor and Standards Act’s “primary beneficiary test,” to determine if an internship can be unpaid. All factors must be met to satisfy the test. California’s six-factor test is as follows:
- The training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in a vocational school;
- The training is for the benefit of the trainee;
- The trainees do not displace regular employees, but work under close observation;
- The employer that provides the training derives no immediate advantage from the activities of the trainees and on occasion his operations may actually be impeded;
- The trainees are not necessarily entitled to a job at the completion of the training period; and
- The employer and the trainees understand that the trainees are not entitled to wages for the time spent in training.
Must a trainee receive academic credit for the position to be considered a valid unpaid internship?
No. However, an internship that provides academic credit can help to establish that the training provided at the internship is similar to that which would be given in a vocational school, and that the training is for the benefit of the trainee.
When must an intern be paid?
Under Massachusetts law, an intern who is not receiving academic credit must be paid at least minimum wage, unless the intern is a trainee under state law.
When is an intern considered a trainee?
An intern is considered a trainee who may be excluded from minimum wage laws when the training:
- Is similar to that which would be given in an educational environment, even though it includes actual operation of the employer’s facilities
- Is for the benefit of the intern
- Does not displace regular employees, but the intern works under close supervision of existing staff
- Provides the employer with no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded
- Does not entitle the intern to a job at the conclusion of the training period, and
- Is based on a mutual understanding between the employer and the intern that the trainee is not entitled to wages for the time spent in training
- When is an intern actually a volunteer?
The Massachusetts Department of Labor Standards determines if an intern is actually an unpaid volunteer based on the following criteria:
- The nature of the entity receiving the services
- The receipt by the worker of any benefits, or expectation of any benefits, from their work
- Whether the activity is less than a full-time occupation
- Whether regular employees are displaced by the “volunteer”
- Whether the services are offered freely without pressure or coercion
- Whether the services are of the kind typically associated with volunteer work
Who is considered to be an intern?
An employee is considered an intern when:
- the employer has not committed to hiring at the conclusion of the internship;
- is not entitled to wages for the work performed;
- performs work that:
- supplements training given in an educational environment;
- provides experience for the benefit of the individual;
- does not displace regular employees; and
- is closely supervised by existing staff.
As an intern, am I protected form harassment and discrimination?
Yes. Under Maryland law, your employer cannot discriminate against you with respect to the terms, conditions, or privileges of your internship, like hiring and firing, on the basis of:
- National origin,
- Marital status,
- Sexual orientation,
- Gender identity, or
Additionally, your employer is required to offer you reasonable accommodations if you have a disability. Finally, the law prevents your employer from retaliating against you for pursuing your rights under the law.
However, as an intern, you are not included under the definition of employee in the Maryland Employment Practices Act (FEPA). This means that you are not entitled to the same kind of relief as “normal” employees. For example, you are not entitled to a private cause of action (aka you cannot file suit). But, you do have access to your employer’s internal procedures on dicrimination. If your employer does not have such procedures, you may file a complaint with the Maryland Commission of Civil Rights for nonmonetary administrative remedies.
5. District of Columbia
As an intern, am I protected from discrimination and harassment?
Yes. Under the DC Human Rights Act, employers may not adversely affect your status as an employee based on:
- National origin
- Marital status
- Personal appearance
- Sexual orientation
- Gender identity or expression
- Familial status
- Family responsibilities
- Political affiliation
- Genetic information
- Source of income
- Status as a victim of an intrafamily offense
- Place of residence or business
- Status as a victim or family member of a victim of domestic violence, sexual offense, or stalking.
This includes but is not limited to firing you, not hiring you, and reducing your pay.