The Unpaid Intern Dilemma. What’s Your Risk?


With the news that interns are now filing lawsuits against companies, we wanted to find out exactly what your risk was, if you do have a policy of interns working at your radio station. For that, we turn to one of our legal experts, broadcast attorney John Garziglia who says you really shouldn’t have interns performing jobs that would normally be done by paid employees. Here’s more.

For perceived glamorous professions such as radio broadcasting, a young person might be willing to work for free or even pay a radio station for the opportunity of being part of the excitement.  But, being a glamorous profession does not mean it is legal to have unpaid interns doing radio station functions that would otherwise be performed by paid employees.

A discussion of unpaid interns raises a variety issues for radio stations. Let’s try to briefly go through the issues with the caveat that, for confronting any of these issues, the advice of an experienced attorney or human resources person is the next step.

Must interns be paid?  The nationwide Fair Labor Standards Act has six criteria for identifying when an intern (usually called a “learner/trainee” rather than an intern) may be unpaid.  The criteria for whether an intern may be unpaid are:

· 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;
· The internship experience is for the benefit of the intern;
· The intern does not displace regular employees, but works under close supervision of existing staff;
· 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;
· The intern is not necessarily entitled to a job at the conclusion of the internship; and
· The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

While not all six factors are equally considered, generally the internship experience must look more like training or learning, rather than a job.

While unpaid internships may be common in our radio industry, the U.S. Department of Labor takes a narrow view on the issue of unpaid interns. Depending on what the intern does, it is often difficult to make an airtight case that the internship qualifies as one that can be unpaid.

The U.S. Department of Labor states on its website that if an intern is “performing productive work (for example, filing, performing other clerical work, or assisting customers)” then even though the individual may be receiving some benefit in the form of a new skill or improved work habits, that will not allow the intern to be unpaid.   Thus, in the radio station setting, once an intern learns how to enter the first 10 contest entrants into a database, for instance, entering two thousand more will not enhance that aspect of an intern’s training.

Further quoting the Department of Labor, “if the employer is providing job shadowing opportunities that allow an intern to learn certain functions under the close and constant supervision of regular employees, but the intern performs no or minimal work, the activity is more likely to be viewed as a bona fide education experience.”  Therefore, sitting in on production room sessions and accompanying sales people on calls would likely be viewed positively, while dubbing CDs to computer storage or making traffic entries would likely not be.

Past the issue of whether an intern is paid or unpaid, further issues arise as to whether an unpaid intern is covered under a station’s workers’ compensation insurance. Questions that can arise include whether it is advisable for unpaid interns to sign a hold-harmless agreement, an indemnity agreement, or a release of liability.  John Pueschel, my law firm’s labor and employment guru, advises that when unpaid interns are brought on board, there should be appropriate documentation (an offer letter or an internship agreement, for instance) so that both parties acknowledge the nature and terms of the relationship.

There are also other issues that can arise. Consider, for instance, the workman’s compensation insurance coverage a radio station enjoys, and whether the station wishes to be without that umbrella of protection if an unpaid intern gets horribly injured on the job. Or, consider the gray areas that may arise if a young unpaid intern is harassed or molested on the station’s premises since the station’s liability insurance may not cover claims made by an unpaid intern.

The use of unpaid interns as workers at a radio station to do duties that otherwise might be performed by regular employees should be carefully considered by radio station managers and owners. Before any such unpaid interns are brought on board, knowledgeable legal and human resources advisors should be consulted to be sure that the radio station is not engaging in either questionable hiring practices or an activity that could subject station ownership to significant unintended liability.


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