By: Nick Martiniano*
Abstract
Internships occupy an important role in the American education experience, as approximately two-thirds of all students complete an internship at some point in their education. Yet, the law has failed to meaningfully define what qualifies a person for intern status and what rights and responsibilities accompany such status. Despite ample attention from the legal community, there is still no uniform standard on who should be considered an intern. The Supreme Court has not created a standard regarding who qualifies as an intern, despite other decisions under the Fair Labor Standards Act (FLSA) guiding circuit courts. Although the United States Department of Labor has issued fact sheets on what defines an “intern,” courts owe the guidance little, if any, deference. Several circuit courts have created standards on differentiating interns from employees, but varying outcomes result in a lack of clarity.
In addition to the problem of determining who is an intern, the failure to definitively answer that question has caused several problems. First, interns and employers sometimes do not know of their legal rights and responsibilities. Additionally, the failure to regulate unpaid internships has led to students from lower socioeconomic backgrounds being underrepresented in internships because these students cannot afford to participate in unpaid internships. Since unpaid internships correlate with worse career outcomes and lower perceived quality of internship experiences, these regulatory failures affect the lives of the many students who complete unpaid internships.
After considering Supreme Court decisions that examine the FLSA, Department of Labor guidance on internships, and the circuit court decisions that have created competing, inconsistent standards for how to distinguish an employee and an intern, the time has come for Congress to amend the FLSA to definitively answer the question of who qualifies as an intern.
*J.D. Candidate, The Pennsylvania State University, Penn State Law, 2022. Special thanks to my wife and children for all of their support and for serving as my greatest motivation. Additional thanks to the Penn State Law Review editing team. For solidarity!