Is your Internship Illegal?

7 04 2010

You need an internship. Companies love having interns because it lightens the work load, they get to nurture and identify young talent and it supports the industry to train future photographers.

Tea pickin' is probably not eligible for unpaid internships. Photo by Alicia Wagner Calzada

There is an interesting article in the New York Times about the expanding trend of unpaid internships and the reality that some unpaid internships violate federal wage laws.

I also found a useful evaluation at this link.

One of the big concerns is that unpaid internships are being used to replace paid workers in this economic recession. This is certainly true in the photojournalism world.

Some states require that an intern receive school credit in order to be eligible as an unpaid intern.

The Department of Labor has provided a set of guidelines to determine whether someone is a trainee, entitled to not being paid (this is relevant for Fair Labor Standards Act- i.e., whether or not minimum wage laws are being violated).

There is also a report by the Economic Policy Insitute on the trends and need for reform for internships.

According to the DOL, there are six factors used for determining if someone is an employee or trainee:

1. The training, even though it includes actual operation of the facilities of the
employer, is similar to what would be given in a vocational school or academic
educational instruction;
2. The training is for the benefit of the trainees;
3. The trainees do not displace regular employees, but work under their 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 conclusion of the training
period; and
6. The employer and the trainees understand that the trainees are not entitled to
wages for the time spent in training.

“If all of the factors listed above are met, then the worker is a “trainee”, an employment
relationship does not exist under the FLSA, and the FLSA’s minimum wage and overtime provisions do not apply to the worker.”

This does not affect non-profits using volunteers.

You may think this is overkill when you have a student willing to work for free in exchange for valuable experience, but this is extra important for photographers because the consideration of whether someone is an employee is also important for consideration of who owns the copyright. Also if there is an on-the-job injury or a sexual discrimination case, employment status is extremely important.

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