'Tis the season. No, not that season but the time of year when employers ask, "Can we still use unpaid interns?" The answer is a qualified, "Yes!"  The key is ensuring you and the intern meet certain criteria (what else is new?). 

First, let's bust a few myths and misconceptions.

1. If I use a student as part of a local college or university's internship program it's OK if it is unpaid. Not necessarily. The source of the intern is not a factor in determining whether an intern must be paid or may be properly unpaid.
2. If the student agrees in advance and in writing that the internship is unpaid then that's OK. You're closer this time but the intent or understanding of the parties is only one of six (6) factors the US Department of Labor (DOL) uses to assess intern classification as paid or unpaid.

So let's look at those six factors. They are published by the DOL in Fact Sheet #71. 

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.

Practical Tips? Get it right the first time.  Consider the six factors above for each and every intern before you let that individual begin an internship with you.  If all six factors are not met then consider paying the individual at least minimum wage (higher of federal or state). And in the interim watch for legislation at the federal and/or state levels that may impact your use of unpaid interns. 

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This newsletter does not constitute the rendering of legal advice.  You should consult your company's legal counsel for guidance on employment matters.