Can publications offer unpaid internships?

Mike Zinser

Question: Is it permissible under wage and hour laws to have unpaid internships?

Answer: On Aug. 24, the U.S. District Court for the Southern District of New York, granting the Motion for Summary Judgment of Hearst Corporation, ruled that unpaid interns who worked at various magazines were not employees for purposes of both the federal and state wage and hour laws.

In making its decision, the court applied the "primary beneficiary test." An employment relationship is not created when the tangible and intangible benefits provided to the intern are greater than the intern's contribution to the employer's operation.

The court analyzed the following factors:

1.  The interns had the understanding that their positions were unpaid and did not guarantee an offer of paid employment at the end of the internship.
2. The interns received educational and vocational benefits through hands-on training.
3. Each internship was tied to an intern's formal education program; some received academic credit for the internship or obtained approval for the internship from their academic institutions.
4. The internships accommodated the interns' academic schedules, per the academic calendar.
5. The duration of the internships did not exceed the period of time in which the interns were provided with beneficial learning.
6. The internships were conducted without entitlement to a paid job at the end of the internship.

The only point not in favor of Hearst Corp. was the fact that the interns performed some "scut" work that the regular, paid employees would rather avoid. The court concluded that these tasks had little educational value and displaced the work of paid delivery and data entry personnel. However, under the totality of circumstances, the scut work factor carried little weight, given the practical skills and experience each intern gained. The plaintiffs are interns, rather than employees, as a matter of law.

Note: Nothing in this SNPA Legal Hotline Q&A should be relied upon as legal advice in any particular matter.

L. Michael Zinser is the founding partner of The Zinser Law Firm in Nashville, Tenn. The firm, which has a heavy concentration of clients in communications media, represents management in the area of labor and employment. Zinser can be reached at (615) 244-9700 or mzinser@zinserlaw.com.

SNPA's free Legal Hotline for members – (844) 804-2016 – is designed to assist newspapers with a broad range of legal issues. Hotline attorneys and CPAs will tackle questions about circulation, independent contractors, labor and employment law, taxes, finances and accounting, employment benefits, open records, libel and privacy, and other issues newspapers encounter.

The attorneys and CPAs who will take calls from SNPA member newspapers are the best in the business:  The Bussian Law Firm PLLC, Fisher & Phillips, Way, Ray, Shelton & Co., P.C. and The Zinser Law Firm.