Quite possibly.
Based on your answers it looks like your
internship might not meet the requirements
established by the U.S. Supreme Court for it to be
unpaid and still comply with the federal Fair Labor
Standards Act. You may be legally owed pay, including
back pay, plus damages.
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For more information on the the 6-point trainee
test the Court established, the U.S. Department of
Labor published this Fact
Sheet. Note: Your state's labor laws may be
even more stringent. For example, New
Hampshire requires employers to obtain
pre-approval from the Labor Commission if an
internship doesn't pay at least the minimum wage, and
New York State uses an 11-point test that goes beyond
the federal 6-point test (this is the fact
sheet for for profit and the fact sheet for not-for-profit
employers).
Please note that at the federal level and in most
states, unpaid interns are not considered employees
and are not protected by laws against workplace
discrimination or sexual harassment. Securing those
protections if you have been misclassified might be
possible, but more difficult than if you were
properly classified as an employee.
For more information on any legal remedy you can
claim we advise you to consult a lawyer.
However, there is a chance that your internship,
though not satisfying federal or state
trainee-tests, can legally be unpaid if you are
classified as a volunteer. The FLSA allows
volunteering at not-for-profit organizations under
certain circumstances, when it is done, “usually on
a part-time basis, for public service, religious,
or humanitarian objectives." (U.S. Department of
Labor Opinion Letter). Note that those
circumstances do not include earning academic
credit, burnishing a résumé, or professional
networking, and volunteering may not displace
someone's job. The more your internship looks like
a job (e.g., full-time instead of part-time, an
ongoing position instead of a position of brief
duration, reporting to a boss and having
responsibilities instead of working as you see fit)
the more likely it is.
Also note that if you receive a stipend for your
internship, it increases the likelihood that courts
would see your position as that of an employee. If
the stipend is for less than the minimum wage would
provide, your employer is likely not in compliance
with the FLSA.
However, there is a chance that your internship,
though not satisfying federal or state
trainee-tests, can legally be unpaid if you are
classified as a volunteer. The FLSA allows
volunteering at state and local governments by
someone "who performs hours of service for a public
agency for civic, charitable, or humanitarian
reasons." Note that "hours of service" does not
suggest full-time work, and that the purposes cited
do not include work undertaken for professional
advancement. A government employee cannot volunteer
to do the same kind of work they are normally paid
for.
The FLSA applies to "any individual employed by the
Government of the United States" — though Congress
elsewhere exempts itself, and only itself, from
applying the FLSA to interns. Therefore, if you
work for a federal government body other than
Congress, your internships should also have to meet
the Supreme Court's 6-point trainee test if it is
to be unpaid. Note: This legal reasoning has not
yet been tested in court, but we are looking
forward to seeing cases come forward and seeing
this interpretation confirmed.
Probably not.
Congratulations, it appears that you may engaged
in an unpaid internship that meets the federal
standard for it to be in compliance with the FLSA.
Your state's labor laws might be more stringent—for
example, New
Hampshire requires employers to obtain
pre-approval from the Labor Commission if an
internship doesn't pay at least the minimum wage, and
New York State uses an 11-point test that goes beyond
the federal 6-point test (this is the fact
sheet for for profit and the fact sheet for not-for-profit
employers) so please consult your state's department
of labor or a lawyer for more information that may
apply to you.
Note that since unpaid interns are generally not
considered employees you may not have any legal
protection against discrimination or sexual
harassment, among other workplace protections.
Oregon, however, recently passed a law (House Bill
2669) extending workplace protections to interns.
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Probably not.
Congress — in generally applying the FLSA and
other workplace protections and civil rights laws to
its employees through the Congressional
Accountability Act of 1995 — went out of its way to
exclude interns: “[T]he term ‘covered employee’ does
not include an intern.” It is unclear what workplace
rights and protections, if any, you may have.
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