By Gabe Hillel, Esq.
At her first session, on May 19, 2011, City Commissioner Susan Bottcher inadvertently stepped into a nationwide controversy when she decided to clarify a citizen’s comment made by Walter Willard, about her “research assistant.” Commissioner Bottcher explained that neither she nor the other new Commissioner Todd Chase had research assistants.
Instead, they have been given the benefit of interns who are receiving college credit for their work. To Bottcher, the arrangement is a win-win situation.
Last year, the New York Times published Steve Greenhouse’s report about whether such unpaid internships are legal, or whether in fact employers violate federal law or laws in some states when they employ such interns without pay.
Last month, the Times published an op-ed article which was critical of colleges encouraging unpaid internships. The Times identified the writer, Ross Perlin, as the author of a forthcoming book on “Intern Nation: How to Earn Nothing and Learn Little in the Brave New Economy.”
The underlying issue in both the private and public sectors is whether interns are being used as unpaid labor to save money and at the same time to avoid numerous laws intended for the protection of employees. Are the new City “interns” really entitled to minimum wage and overtime pay; unemployment compensation, and protection of federal and state anti-discrimination laws?
The U.S. Department of Labor’s Wage and Hour Division (WHD) has developed six factors to determine whether someone is a trainee or an employee for purposes of the Fair Labor Standard Act:
1. The training, even though it includes actual operation of the facilities of the employer, is similar to what would be given in a vocational school or academic educational instruction;
2. The training is for the benefit of the trainees;
3. The trainees do not displace regular employees, but work under their close observation;
4. The employer that provides the training derives no immediate advantage from the activities of the trainees, and on occasion the employer’s operations may actually be impeded;
5. The trainees are not necessarily entitled to a job at the conclusion of the training period; and
6. The employer and the trainees understand that the trainees are not entitled to wages for the time spent in training.
Whether the Commissioner Bottcher wants to call her new aide an intern rather than a research assistant, matters far less than the duties being performed by him or her. At the moment, she and the City appear to be in violation of the FSLA, since they hardly are likely to meet all six of the requirements needed to qualify the new kid on the block for exemptions.
Worse May Be Yet To Come
In Florida, under our “imaginative” Governor Rick Scott, the City’s use of unpaid interns for Commissioners might inspire similar efforts to use undergraduate and graduate students as unpaid interns to supplement or supplant numerous public employees.
