If you are responsible for selecting interns for your company, if you are thinking about taking an internship with a company, if you own a company that uses interns, if you supervise interns in any capacity, if you work alongside interns, you should know the following from the Department of Labor's website. Note well the 6 criteria, because they must be met at all times in order for the situation to be a valid internship in the eyes of the DOL:

 

 

The FLSA (Editor's note: "Fair Labor Standards Act") defines an employee as "any individual employed by an employer." 29 U.S.C. 203(e)(1). Similarly, the FLSA definition of "'[e]mploy' includes to suffer or permit to work." Id. The Supreme Court held over fifty years ago in Walling v. Portland Terminal Co., 330 U.S. 148 (1947), that the FLSA definition of "employ" does not make all persons employees who, without any express or implied compensation agreement, may work for their own advantage on the premises of another. Whether student interns are employees under the FLSA will depend upon all the circumstances surrounding their activities. For example, where certain work activities are performed by students that are simply an extension of their academic programs, we often would not assert that an employer-employee relationship exists for purposes of the FLSA. Thus, provided the six criteria listed below are met, where educational or training programs are designed to provide students with professional experience in the furtherance of their education, and the training is academically oriented for the benefit of the students, it is our position that the students will not be considered employees of the firm to which they are assigned. The six criteria, derived from the Supreme Court's decision in Portland Terminal, are as follows:

  1. 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;

     

  2. The training is for the benefit of the trainee;

     

  3. The trainees do not displace regular employees, but work under close observation;

     

  4. The employer that provides the training derives no immediate advantage from the activities of the trainees and on occasion the employer's operations may actually be impeded;

     

  5. The trainees are not necessarily entitled to a job at the completion of the training period; and

     

  6. The employer and the trainee understand that the trainees are not entitled to wages for the time spent in training.

 

 

The entire memo can be found here: http://tinyurl.com/ddt853. In a recent case I'm familiar with, the DOL asked right away, "Is this person receiving college credit for this time spent? No? Then s/he is not an intern, but an employee, and entitled to back wages, including overtime, for the time spent working." This particular situation involved egregious violations of #'s 1, 2, 3, and 4 as well, which seem to be the most common areas of concern when it comes to theatrical "internships".

 

Know your rights and responsibilities, both as an intern and as someone who selects or supervises interns. Both companies and interns can always contact their local DOL branch to have a confidential conversation to make sure the situation meets the required standards. Call 1-866-487-2365 to get the number of your regional office. Perhaps most importantly, if you are classified as an intern but feel the situation does not meet the above criteria, don't be afraid to make the call. While you can certainly decide not to file a claim, you're better off knowing the truth.

 

If you file a claim with DOL, you are protected from retribution. You can't be fired, you can't be ostracized, you can't be treated differently or judged on a different scale to make it seem you aren't pulling your weight.