Recruiters are often exempt from Federal wage and hour premium overtime requirements as exempt administrative employees. However, as with all exempt employee determinations, their status is based on the particular facts and circumstances of each case rather than a title or general rule.
Employer misclassification of their employees as independent contractors is a widespread phenomenon in the United States.
The Internal Revenue Service (IRS) estimates that employers have misclassified millions of workers nationally as independent contractors.
While some employers misclassify their workers as independent contractors in error, often employers misclassify their employees intentionally in order to reduce labor costs and avoid paying state and federal taxes.
We have long warned that one should not simply assume that an internship associated with or sponsored by an educational institution falls outside of the federal Fair Labor Standards Act's requirements. Our caution includes situations in which the intern receives academic credit for the time so spent.
Now, More Heat On Academia
Not surprisingly, the rash of intern lawsuits and intern-related publicity has now provoked a number of "pay your interns" campaigns and on-campus initiatives directed at schools and universities. The news site ProPublica iswriting extensively about this and has undertaken to investigate "schools' role in the issue" (among other things).
Academic institutions are of course reacting to these developments and pressures. Reports suggest that few if any of them will be prepared to withdraw from the facilitation of unpaid internships just yet. However, many are implementing other measures that organizations contemplating offering internships to students should carefully review and evaluate.
For example, organizations that are considering posting, otherwise publicizing, or collaborating on internship opportunities at such an institution should not be surprised to find that its administration will require that they confirm or even affirmatively agree to comply with various "guidelines" and specific commitments. Depending upon the details, it is conceivable that doing so might, as illustrations, (i) create contracts or legally-enforceable undertakings of another kind even aside from FLSA requirements, or (ii) be offered in connection with a later FLSA claim as alleged evidence of a knowing violation. Anyone who is deciding whether to confirm or accept such terms should thoroughly consider the ramifications of doing so.
Indications also are that many schools will be encouraging paid internships. And it is foreseeable that at least some schools will be making a more hands-on effort to monitor and supervise internships in an ongoing way.
Remember The Basics
Even if an internship is arranged through or with the involvement of a school, the principal FLSA issue is still whether the person is or is not an "employee" who is subject to that law's requirements. The answer is not going to be controlled by what the intern, the internship provider, and/or an educational institution might have thought or even agreed to on this score.
Instead, the determination has more to do with whether the actual facts and circumstances clearly demonstrate that the relationship is one of non-employment that is genuinely undertaken and carried out for the purpose of generalized learning, education, and training that imparts to the intern significant knowledge of a broadly-applicable kind. Boiled down to essentials, this is what the U.S. Labor Department's statements on the subject are aimed at evaluating.
Bear in mind also that:
♦ Whatever USDOL or an educational institution might think about whether an intern is an FLSA "employee", individuals are free to file their own FLSA lawsuits to resolve the question.
♦ States and other jurisdictions can take their own positions regarding internship status under their particular wage-hour laws, positions that might tend to favor a finding of "employment" under those laws.
♦ Some of the claims being made involve "paid" interns who allege that they were "employees" whose pay did not meet the requirements of all applicable laws. So simply paying an intern something (like a small stipend) does not necessarily eliminate the possibility of a later government investigation or court fight.
The Bottom Line
There is no inherent protection against claims or liability arising out of an internship just because the relationship was undertaken in conjunction with an educational institution and/or involved academic credit.
John Thompson is a partner of Fisher and Phillips LLP in the Atlanta office. His practice focuses on wage and hour law, emphasizing issues relating to minimum wage, overtime, timekeeping, and wage-payment requirements. He assists employers in preventive efforts designed to ensure compliance, and he handles both investigations conducted by government agencies and litigation in the wage and hour area. John has served as a Special Assistant Attorney General for wage-hour matters for the State of Georgia. He has also addressed wage-hour topics in presentations to numerous employer groups and in articles appearing in both human resources publications and industry journals. John is "AV" Peer Review Rated by Martindale-Hubbell and has been included in Georgia Super Lawyers. He has also been listed in The Best Lawyers in America since 2006 and in Chambers USA: America's Leading Business Lawyers since 2009. John is the editor of the firm's Wage & Hour Laws Blog.
Hourly and biweekly rates of pay for most Federal and civilian employees are computed as required by 5 U.S.C. 5504(b).
- Hourly rates of basic pay are computed by dividing an employee's annual rate of basic pay by 2,087 hours. Rates must be rounded to the nearest cent,
I don’t believe in the concept of, “Leaning In” more than I believe in not paying interns what they are worth. After I read, “Lean In” I needed a mental shower to clean out all the buzz-worded entitlement that lingered in my brain from Sandberg’s trite, idyllic, writings.