Employment Law

Many companies offer unpaid or low paid internships in exchange for experience. Oftentimes, however, companies’ internship programs violate federal and/or California labor laws because the companies fail to pay their interns at least minimum wage.

Do Interns Have To Be Paid in California?

In general, an intern should be paid at least minimum wage if he or she does not receive academic credit in exchange for his or her work and if the intern performs work for the benefit of the company’s business. An intern is not entitled to receive compensation if the internship is supervised by a college or university, or if the intern is engaged in “job shadowing” but does not actually perform much work for the company’s benefit.

What are California’s Unpaid Internship Laws?

In order for unpaid internships to be lawful in California, employers must comply with the requirements set out by the Division of Labor Standards Enforcement (“DLSE”):

1. Internships must be part of an established course of an accredited school or vocational training program.
2. Interns must be trained to work in a specific industry and not be trained to perform work that can only benefit one company.
3. Interns must not displace employees or do the work a paid employee would typically perform.
4. A school or agency must supervise internship training.
5. Employers must ensure that interns do not receive employee benefits, insurance, or workers compensation.
6. Employers must ensure that potential interns are aware that internships are unpaid.

What are Federal Unpaid Internship Laws?

The U.S. Department of Labor released new guidelines in 2018 to determine whether an unpaid internship is lawful:

1. Employers must ensure interns have training that is similar to training provided in a vocational school.
2. Employers must ensure the internship benefits the interns, not the business.
3. Employers must ensure interns work under close observation and do not displace regular employees.
4. Employers must ensure the business does not derive immediate advantage from intern activities, and understands business operations may actually be impeded.
5. Employers must ensure interns know that they are not entitled to jobs at the end of their internship period.
6. Employers must ensure there is a mutual awareness that interns are not entitled to wages during or after the internship period.

What Characterizes Work Versus an Internship?

The difference between work and an internship is something the company you are working at might hope that you don’t understand. The reality is, most internships are at least partially what the law categorizes as paid work. An internship should provide only the intern with value and not the company.

The work that the intern performs cannot replace a paid worker. So, an intern cannot perform work that a paid worker should perform and cannot contribute direct value to the company. So what can an intern do? An intern can learn and participate, and this can take on many forms.

For example, a journalism program at an accredited school might require an internship. Remember that an internship must link to an accredited school or vocational program to qualify as an internship in the state of California.

The student who is interning at the newspaper cannot be performing the work of a paid employee. This means that the student will not be sitting at a table stuffing envelopes for hours or handing out mail to employees. Paid employees do those jobs. An intern can learn from an existing employee by shadowing them.

In our example, the journalism student might have the opportunity to watch a journalist interview subjects as they write an article. Maybe the student will have a chance to review a draft of a journalist’s newest article before they pass it on to the editor. Maybe the student provides feedback that the journalist appreciates. However, the student reading the article before the editor does not replace the editor, and the student is not writing the article or contributing original work to it.

If the student were to be editing the article, and the edits went on to be part of the published work, or if the student were to be writing the article and the reporter is turning it in as their own, the student should receive fair compensation. Writing articles for employees who use it as their own or doing what should be a paid position is not an internship—it is a job.

What Does “Value Added” Mean in Internship Laws?

If you do not receive compensation while doing something that adds value to a company, that often violates labor laws. It does not matter if a company calls people “interns” who then contribute paid work for free.

Many companies are happy to take advantage of unemployed individuals seeking out “experience,” which they think might turn into a valuable line on their résumé that leads to a better paying job.

The fact of the matter is, unpaid work is just that—unpaid. It takes your time and does not put anything in your pocket. Unpaid work is illegal, and what differentiates work from an internship is the value that you add to the company.

The value that you add to the company does not have to be direct money, such as sales. If a company asks you to perform sales within the context of your internship, reaching out to an employment attorney is wise, as you deserve fair and lawful compensation for your work.

Alternatively, if you are not earning money for the company but saving the company money on their employment costs, you are also entitled to compensation. For example, if half of the time of your internship involves entering sales receipts into a computer system for the company’s inventory tracking, one-half of your internship should involve compensation.

Common take advantage of interns by requiring manual labor or simple repetitive work. Examples of manual labor include stocking shelves or moving around items in an office. Simple repetitive work like data entry, stuffing envelopes, sending out emails replaces paid employees.

If the company asks you to perform a task that a paid employee should do, the law requires compensation. If you lose your “internship” because you asked for compensation for your work, you might have the right to seek damages, and your employment attorney can help.

Internships Without Proper Pay Is Wage Theft

If you worked at an internship that sounds more like a job, labor laws entitle you to compensation. It is wage theft—plain and simple—when you perform the work of an employee within the context of your internship.

An employer who takes advantage of individuals by taking free work violates the very nature of modern American capitalism and California state laws. Your time is your own, and you should benefit alone from your internship and not simply provide benefits to the company you are working for.

Internships should give back to the community by fostering experience and the value of future professionals in an industry. The media is a common area in which internships are encouraged as studying journalism and reporting the news are different, and students with a good internship make themselves more employable. Unfortunately, many companies are willing to take free work without giving students anything of value. When that happens, your employment law attorney can help.

How Can an Employment Attorney Help Me With My Unpaid Work?

Your California employment law attorney will determine your lost wages and file the necessary demands and potentially court filings to get you the compensation you deserve. If you had employment without pay under a false “internship” that violated the law, you should receive all of the wages that you deserve. A local employment law attorney can help you.

How We Can Help

It’s common for companies to violate wage and hour laws by failing to pay their interns. If you are an unpaid or low paid intern, you may be entitled to receive compensation from your employer.

For more information about your rights, please call us at (619) 342-8000 or contact us online.

On January 1, California businesses finally reaped the benefits of legalized marijuana sales, and if the first week of business is any signal of longevity, it appears that marijuana is here to stay in California. While California will likely be seeing green for years to come, that does not mean that your employer sees the same way.

Notably, Proposition 64 – the 2016 ballot measure that legalized recreational marijuana sales – empowered employers to enact policies against marijuana use during the workday.[1] In other words, if your job has a drug-free workplace policy, it is not changed by the new law. Although a business has the final say whether it will maintain a drug-free policy or follow suit with Proposition 64, potential liability and reputation concerns will likely induce employers to choose the former option. As such, you should always read your company policy before taking advantage of the new law while on the clock.

Even if you use marijuana for medical reasons (which has been legal in California for over 20 years), you can still be fired for using or testing positive for, medical marijuana on the job. In 2008, the California Supreme Court held that California employers were not required to accommodate employees’ medical marijuana use under the California Fair Employment and Housing Act.[2] Additionally, the Americans With Disabilities Act (a federal law) does not protect medical marijuana users on the job either.[3] Thus, a doctor’s note only keeps you out of a jail cell, not an unemployment line.

While the times are changing, the laws regarding recreational and medical marijuana in the workplace remain the same. However, if you have been terminated for marijuana use without a company policy prohibiting such use, you may have a case against your employer. For more information about your rights, and a free case evaluation, please call us at (619) 342-8000.

[1] http://www.sfchronicle.com/opinion/editorials/article/Chronicle-recommends-Legalize-marijuana-Yes-on-9223733.php[2] Ross v. RagingWire Telecommunications, Inc., 42 Cal. 4th 920 (2008).[3] James v. City of Costa Mesa, 700 F.3d 394 (2012).

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!

The Fair Labor Standards Act (“FLSA”) sets the minimum wage, overtime pay, recordkeeping, and other standards for employment across the nation. Though states may expand those rights and provide greater protections for their citizens, the FLSA sets the baseline standard that all employers (both public and private) must adhere to.

On May 18, 2016, the Department of Labor finalized a long-awaited new FLSA rule which will increase the overtime pay protections for many workers who are classified as “white collar” exempt. Specifically, the new rule increases the minimum salary and compensation levels needed to classify Executive, Administrative, Professional, Outside Sales, and Computer employees as exempt by:

• More than doubling the minimum salary cutoff for exemption from $23,660 annually (or $455 per week) to $47,476 annually (or $913 per week); and

• Establishing an automatic raise in that minimum salary level every three years to account for inflation.

The new rule will go into effect on December 1, 2016 (with the first automatic raise scheduled for January 1, 2020) and will require employers to either increase current exempt employee salaries in order to maintain their exempt status or convert those employees to hourly workers covered by the overtime laws. It is estimated that the new rule will extend overtime pay protections to over four million workers within its first year of implementation.

For more information about your rights to overtime compensation, and a free case evaluation, please call us at (619) 342-8000 or contact us online.