Are unpaid interns protected by federal antidiscrimination laws?
Issue:

A vice president has suggested that your company’s marketing department research the possibility of implementing an internship program whereby two students would be recruited to work in the department as unpaid interns in exchange for college credits. You have been tasked with the job of determining whether federal antidiscrimination laws would apply to these interns. How can you make this determination?
Answer:    

Whether an unpaid intern is protected from discrimination by Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Equal Pay Act, or the Genetic Information Nondiscrimination Act likely turns on the question of whether the intern receives “significant remuneration” in some form, according to a recently released EEOC informal discussion letter. Interns who receive significant remuneration are likely covered by federal antidiscrimination laws.

Discrimination checklist. Employers with unpaid interns should consider the following questions to determine whether an intern receives significant remuneration or is otherwise protected by federal antidiscrimination laws:

    1. Does the intern receive significant remuneration in any form, including pension, group life insurance, workers’ compensation, or access to professional certifications?

    2. Does the intern receive significant benefits from an educational institution because of her volunteer work with the employer (not including academic credit, practical experience, or scholarly research)?

    3. Is the work done by the intern required for regular employment or does it usually lead to paid employment with the same employer?

If the answer is “yes” to either of the first two questions, the intern likely receives significant remuneration as characterized in the EEOC letter and is thus likely protected by federal antidiscrimination laws. An affirmative answer to the last question likewise means that the intern is covered by federal antidiscrimination laws regardless of whether the intern receives significant remuneration. Employers also should keep in mind that applicants and participants in training and apprenticeship programs are protected from discrimination related to the selection and participation process.

Source: CCH Workday Blog, http://www.employmentlawdaily.com/index.php/2012/05/11; EEOC informal discussion letter: http://www.eeoc.gov/eeoc/foia/letters/2011/eeo_laws_when_interns_may_be_employees.html.
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