THE BLOG

No Intern Pay? No Protection From Harassment

02/14/2014 02:17 pm ET | Updated Apr 16, 2014

When many people think of unpaid internships, they assume the only thing missing from the opportunity is pay and benefits. This couldn't be further from the truth. Unpaid internships also lack another crucial element: Protection from harassment.

Sure, you may treat your unpaid interns like employees, doling out immersive, hands-on projects, mentorship and technical skills training. But at the end of the day, unpaid interns aren't "real" employees because they have no legal protection that comes with an employee contract and salary.

According to a recent InternMatch survey, 36.9 percent of companies still offer unpaid internships or internships that pay less than minimum wage. And while proponents of unpaid internships typically speak to the career-changing experiences these opportunities provide, this argument hardly stands when it comes to the lack of civil rights afforded to unpaid interns.

Nonemployees Status = No Legal Protection
For many employers, bringing on an intern is often a recruiting and hiring decision that lacks an element of legal thought. They're often seen as an extra set of hands or potential future employees. It doesn't help that the Fair Labor Standards Act internship guidelines are vague.

With some clarification, we can see that unpaid interns are not employees, which means no protection under employee protection laws. This includes Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act or the Americans with Disabilities Act.

The Court Rulings
Unpaid internships have been receiving their day in court, and not just for recovering wages from big-name unpaid intern employers like Fox Searchlight and Condé Nast. Recently, a New York district court ruled a former unpaid intern from Phoenix Satellite Television U.S. cannot bring a sexual harassment claim under the New York City Human Rights Law.

The Syracuse University graduate and unpaid intern was sexually harassed after being lured into her supervisor's hotel room on the pretext of discussing job performance and a potential full-time position. But the lack of compensation during her unpaid internship rendered her unable to meet the requirement for employee status under the statute.

What's more unfortunate is that this isn't the first time sexual harassment claims were dismissed in court due to the victim being an unpaid intern. In 1994, an unpaid intern at Rockland Psychiatric Center filed a lawsuit against her employer after enduring sexual harassment from supervisors during her internship.

Damaged Reputations
With the recent wave of global media attention, unpaid internships are in the hot seat. If you're still offering unpaid opportunities, it may be time to consider your own reputation.

Even if you haven't had your name smeared after an awful sexual harassment or wage-recovery lawsuit, the word's out about the negative side of unpaid internships. Interns who go without pay or are treated unfairly will talk -- and that may effectively destroy your talent pipeline from the inside out. Students and recent college grads aren't going to be eager to take part in an internship program where they're not technically employees and lack the ability to seek legal protection if necessary.

The Law May Finally Catch Up
While I personally believe unpaid internships should be made a thing of the past entirely, legal protections may be on the horizon for unpaid interns. Democratic state lawmakers have proposed legislation that would give unpaid interns the same statutory protections from workplace discrimination as employees.

This measure would make it unlawful to discriminate against an unpaid intern on the basis of an intern's "age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status or domestic violence victim status." And to add to that, it will also have sexual harassment and whistleblower protections.

Unpaid interns deserve the same rights as paid employees. Even with a protective measure brewing, it's time to make the switch to paid internships. You'll reap benefits worth more than what you'd be scrimping to save through an unpaid position.

Do you think unpaid internships should be a vestige of the past?