Should We Call A Lawyer? Legal Complexities of Student Internships


Presented by: Kenan A. Fishburne

Background:  
As internships become increasingly important to students, so do concerns about related legal issues. This paper addresses several legal issues surrounding university internships and offers advice for interior design programs to help them legally protect their students and internship providers.   

Methodology:
This research began with a literature review of internship definitions and practices from educational sources and a review of standards produced by the U.S. Department of Labor.  This was followed by interviews with practicing attorneys to determine the risks associated with internships and what programs can due to mediate those risks.  

Findings:
Two common legal issues affecting internships include labor laws that define internships as unpaid work and student liability issues (NSEE, 2014).  Literature revealed that a national debate is ongoing regarding what is and what is not considered an internship. Litigations such as the Black Swan and Charlie Rose cases utilized the Fair Labor Standards Act (Becker, 2013) under the U.S. Department of Labor, which provides a legitimacy “test” for legal unpaid internship using these criteria: the internship is not a job but an educational experience which provides value to the student but not the employer; the intern cannot displace regular workers;  and both parties understand there is no entitlement for payment or a future job (U. S. Department of Labor, 2010).   The National Society for Experiential Education (NSEE) states that internship programs favoring unpaid internships are outdated and actually discriminate against low-income students. They further state: “credit is for what students learn; pay is for what they provide to the field sponsor.  The two are neither mutually exclusive nor conflicting” (NSEE, 2014).  The National Association of Colleges and Employers (NACE) has provided a similar definition of internship, emphasizing  payment for internships (NACE, 2014). It is apparent that university programs must carefully craft internship definitions based on the type of internships they offer.

Internship liability issues were also revealed as a concern.  The term “liability” covers not only harm to a student but also harm the student may do to their provider.  Educational institutions generally are not liable for student interns as they are not employees.  While many students are covered under family liability insurance policies and many employers carry liability and errors/omissions insurance, programs must clarify who is responsible for liability.  Insurance companies provide inexpensive policies that either party can obtain as needed. Paperwork signed prior to internship should require evidence of insurance and who is providing it. It can also exclude parties from liability.  An “affiliation/internship” agreement is commonly used to address liability issues up front. This can be formal or informal as long it clearly states the policies of the internship program and is signed by both parties as binding.

Conclusion:
Multiple definitions of internship put the burden on academic programs to clearly define internships as to whether credit and/or payment are to be received. Programs are strongly advised to produce legally binding paperwork appropriate to their internship to protect both intern and employer should liability issues arise.

References:

  • Becker, C. (2013).  PBS’ Charlie Rose Settles With Unpaid Interns as Lawsuits Spread.  Retrieved on June 10, 2014, from http://www.reuters.com/article/2013/07/01/entertainment-us-interns-lawsuit
  • U.S. Department of Labor. (2010). Wage and Hour Division Fact Sheet #71. Internship Programs Under the Fair Labor Standards Act.  Retrieved on September 14, 2012, from http://www.dol.gov/whd/regs/compliance/whdfs71.htm
  • National Association of College and Educators. (2014).Position Statement:  U.S. Internships. Retrieved on February 14, 2014, from https://www.naceweb.org/connections/advocacy/internship_position_
  • National Society for Experiential Education. (2014). Resources, NSEE Position on Unpaid Internships. Retrieved on June 2, 2014, from http://nsee.memberclicks.net/resources
  • Zara, C. (2014). Internship Debate Spills Into Public Sector:  University of California, San Francisco, Ordered to Pay Back Wages to Former Intern. Retrieved on February 5, 2014, from http://www.ibtimes.com/internship-debate-spills-public-sector-university