Interns in the News
This week it was announced that Terry Bowden will join the Clemson football staff as an unpaid intern. This is newsworthy for a few reasons, Terry Bowden is the son of the legendary Bobby Bowden who used to coach at Florida State. Terry Bowden is also the former head coach of Auburn. Terry Bowden is also 63 years old and has just enrolled at Clemson to pursue a graduate degree at the school.
Terry Bowden’s situation highlights the questions associated with interns that arise every year, specifically, can an intern be “unpaid”? In January of 2018, the Department of Labor adopted a primary beneficiary test to determine if an internship can be “unpaid.” If the company is the “primary beneficiary” then the internship must be paid. If, on the other hand, the student is the “primary beneficiary” then the internship may be unpaid.
The primary beneficiary test does not include a rigid set of requirements, but a non-exhaustive list of factors to determine who is the primary beneficiary of the internship. The factors include the following: the extent to which the intern and the employer clearly understand that there is no expectation of compensation; the extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by an educational institution; the extent to which the internship is tied to the intern's formal education program by integrated coursework or the receipt of academic credit; the extent to which the internship accommodates the intern's academic commitments by corresponding to the academic calendar; the extent to which the internship's duration is limited to the period in which the internship provides the intern with beneficial learning; the extent to which the intern's work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern; and the extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.
Employers must be mindful that if a student is merely fetching coffee and filing documents, the internship may not legally be “unpaid” and the student must be paid minimum wage and time and a half for all time worked over forty in a workweek. An “unpaid” intern must be for the benefit of the student, not the employer. While Terry Bowden is unlikely to sue Clemson for his unpaid intern wages, the same may not apply to the unpaid interns you have getting you coffee and answering your phones throughout the summer.