An Intern or an Employee?

3 steps to make sure that the person who came on board at your office is in fact an intern and not an employee who should be compensated.

By Arkady Itkin

Jul 22, 2015

In light the Second Circuit decision in Glatt Ex Rel. Situated v Fox Searchlight Pictures, Inc., and the "primary beneficiary test" articulated by the court regarding the employee/intern distinction, employers are advised to take the following three practical steps in order to insure that their interns are properly classified as such, as opposed to being employees, and thus do not have to be compensated:

1. Provide Written Internship Agreement

Make sure that an intern signs an agreement, which makes it clear that he is an intern and not an employee; and that no compensation will be provided.

The agreement should also include a provision that states that the intern's schedule is flexible and can be modified at her request to a reasonable extent in order to accommodate the intern's school schedule and other obligations.

2. Assign a Mentor

Your intern should be assigned a mentor or a supervisor who the intern can ask both theoretical and practical questions about the industry. The mentor should be not only overlooking the intern's work but also educating the intern about why certain things done they way the are done, and providing strategic guidance.

3. Make Sure that the Intern's Work Is Not a Low Level Clerical Work

Interns have been routinely assigned to make copies, staple and organize documents, answer phones and do other work that neither involved nor developed any professional skill. Today, in light of the Glattdecision, this might not cut it. To maintain a proper intern status, you should make sure that the intern's work in the office is related to his subject of study.

Thus, if it's a law firm intern - she should be spending at least some of her time conducting legal research, attending hearing, depositions and client meetings, and not just filing documents and sorting mail. A business / accounting intern should have the opportunity to look at ledgers, and participate in meetings and presentations and not just proof read power point presentations and e-mails.

At the same time, you should make sure that the intern's duties are not too similar to those of a paid employee.