June 12, 2018 | By NACE Staff
TAGS: internships, legal issues, nace insights
Spotlight for Recruiting Professionals
While both federal and state statutes provide protections for individuals to be free from harassment in the workplace, such statues generally only protect the employees of the company. What happens then if the individual subjected to harassment is an unpaid intern and not an “employee”?
In their article titled “Harassment in the Workplace: What Employers, Employees, and Interns Need to Know” from the May 2018 issue of the NACE Journal, George Hlavac, Esq., and Edward
Easterly, Esq., note that if there is no specific state statute that provides protections for unpaid interns (and only a few states have such statutes). The key inquiry, they say, will be whether the law will be interpreted to treat unpaid interns as if they are employees for purposes of protecting them from harassment.
The key inquiry in determining if someone is an employee for purposes of protections is whether or not the intern was provided with compensation. Compensation in such cases is not limited to monetary consideration. Some courts have found that non-financial benefits that create or relate to career opportunities may suffice. For example, free training and educational opportunities, such as a corporate leadership course, may establish an employer/employee relationship in which the individual can demonstrate an economic dependence upon the training and not a mere pleasure from the “compensation.”
Further, at least one court has found that where a volunteer was provided with a “clear pathway to employment” deriving from her position as a volunteer, she could establish the plausibility of an employment relationship under federal antidiscrimination laws. Accordingly, if an unpaid intern can establish that he or she was provided with some form of remuneration for services, a court may find that the intern is afforded protections under federal and state anti-discrimination laws.
Some states, including New York and Maryland, have passed laws to address the harassment of unpaid interns. Unfortunately, not all states have followed suit at this juncture, nor has the federal government passed any such universal protections. There are, however, bills pending that address certain internships, such as federal government interns and interns for lobbyists.
Percent of employers that allocated more resources to recruit historically marginalized students
NACE September 2021 Quick Poll
Percent of students seeking employer that embraces diversity
2021 NACE Student Survey
Percent of employers with a formal diversity recruiting effort
2021 Recruiting Benchmarks Survey Report