DOL Clarifies: Unpaid Law Internships Still Illegal, Unless Pro Bono

This may not be news to you, or to us, but unpaid internships are illegal in nearly all cases. If you are working for a firm, and they are deriving a benefit from your work, you need to be paid.

The ABA, however, sought clarification from the Department of Labor on one narrow set of circumstances: internships with for-profit firms where the intern handles pro bono matters exclusively. Here are the major takeaways from the DOL's full response:

The Traditional Six-Factor Test Still Applies

Since the beginning of time, or at least 1947, unpaid internships have generally been illegal under the Fair Labor Standards Act (FLSA). The exception to the rule comes when an internship passes the following six-factor test, derived from the Walling v. Portland Terminal case, and currently approved by the DOL's 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.

Yep. It's the same test we've seen, time and time again, and as made clear by the DOL, FLSA applies to lawyers too.

Unpaid, Pro Bono Work, With School Supervision, is Okay

Applying the six factors, the DOL's guidance letter states that school-supervised internships, whether or not for credit, are legal with qualifiers. It has to be pro bono work, that doesn't free up paid attorneys for paid work, and that doesn't directly benefit the firm (reputation boosts aside). It has to be educational (hence the school supervision), closely supervised by the firm's attorneys, and must be for the "trainee's" benefit. And there must be both no promise of a job and a clear understanding of the unpaid nature of the work.

In other words, there's no reason for firms to actually have these internships, other than warm fuzzy feelings.

Unpaid, Pro Bono Work at For-Profit Firm, Not Okay for Graduates

Interestingly enough, even with all of the above factors met, if the intern has graduated law school, the internship may be illegal. The guidance letter notes that the ABA Labor and Employment Law Section leadership has already stated that grads may not volunteer for private firms.

Besides that, law grads have completed their education (practice ready or not) and would lack the school supervision over the internship.

Will This Make a Difference?

Probably not. Law firms already should have been aware that unpaid internships are generally illegal. It's been that way since 1947. If they ignored the law before, a letter to the ABA shouldn't change things. This might, however, attract the attention of career services offices at law schools, who will hopefully educate law students, and encourage them to avoid illegal unpaid internships.

Related Resources:

• Small Firm Staffing: Is It Time to Offer Unpaid Internships? (FindLaw's Strategist Blog)
• The Dirty Secret: Unpaid Internships are Illegal (FindLaw's Chicago Employment Law Blog)
• Another Day, Another Media-Magazine Intern Lawsuit (FindLaw's In House Blog)