I’m not a lawyer, but I think it’s possible. Here’s why.Two former interns at publishing company Conde Nast filed suit this week demanding back wages and attorney fees. Their lawsuit comes on the heels of two other successful lawsuits demanding that interns actually get paid for their work: On Tuesday, a federal district court sided with the interns who sued Fox Searchlight Pictures, saying the interns should have been paid for their work on the film “Black Swan.” And last year, Charlie Rose and his production company agreed to pay up to $250,000 to more than 150 former interns to settle a class-action suit. Cases like these rest on the legal definition of an “internship,” and the rules surrounding when an employer can bring on an intern for unpaid work. They also beg the question: Could an MFT intern win a similar lawsuit? Now, I’m not a lawyer, but it seems to me that in certain circumstances (namely, work in for-profit settings, like private practices or some hospitals or agencies), MFT interns have every right to demand that their “internships” actually get called “jobs,” with all the associated legal requirements — like pay. (A quick note on terminology here. I’m using the California-and-some-other-states definition of an MFT intern, which is to say, a marriage and family therapist who has completed their master’s degree and is building their required hours of experience toward licensure. Some other states use the term “MFT intern” to describe those still in their graduate programs; in California, those would be called MFT Trainees. I’m NOT talking about those folks.) A few months back, Forbes handily broke down the six factors considered by a court in determining whether an internship program is legal in a for-profit business. In essence, the court (or the Department of Labor, which is tasked with applying these rules) weighs whether the internship is primarily for the benefit of the intern or the employer. For an unpaid internship to be legal, it must meet all six of these requirements:
- The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment.
- The internship experience is for the benefit of the intern.
- The intern does not displace regular employees, but works under close supervision of existing staff.
- The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded.
- The intern is not necessarily entitled to a job at the conclusion of the internship.
- The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
The first point there seems debatable; by definition, an MFT internship comes after the master’s degree is completed. However, there is still substantial training and supervision taking place in that time. So while it’s a bit unclear, let’s give that one to the employer, and say that it is primarily the intern who benefits. The employer also clearly wins on the second point; MFT interns gain hours of experience necessary for their licensing exams. Interns absolutely benefit from their internships.Skipping ahead a bit, the fifth and sixth points also fall on the side of the employer. Most internships that I’m aware of make it quite clear to their interns that the intern is not entitled to a job at the conclusion of their internship, and it’s easy enough to put in an intern contract that the internship is unpaid. So far, so good. The third and fourth points are where things get problematic at for-profit clinics and agencies that bring MFT interns into unpaid positions. In some such settings, the interns provide the overwhelming majority of clinical services. More seasoned clinicians, the ones with licenses, may also be employed there, but they may be there primarily to supervise. Without their unpaid interns, some of these settings would either have to shut their doors or would have to hire staff to provide clinical services, which pretty much sounds like the definition of interns “displac[ing] regular employees” to me. Far from deriving “no immediate advantage” from having MFT interns on staff, clinics are often paid (through county contracts, contracts with service locations, or directly by the clients receiving services) for the interns’ clinical work, which is a clear and immediate advantage. Since all six criteria must be met for an unpaid internship to be legal in a for-profit setting, and those clinics that utilize unpaid MFT interns to provide clinical services seem to meet — at best — four out of the six, it would appear to me that an MFT intern who worked without pay might have a shot at a successful lawsuit. Again, I’m not a lawyer, and I’m sure there are all kinds of ways employers tiptoe around those rules, with various degrees of shadiness. It also must be emphasized that the rules here are for for-profit businesses; nonprofits appear to have much more leeway when it comes to volunteer positions. But any time MFT interns complain about the glut of unpaid internships and the relative lack of ones that pay a living wage, I wonder whether it is at least in part because no one in our field yet has had the nerve to challenge the status quo in court. # # # Your comments are welcomed. You can post them in the comments below, by email to ben[at]bencaldwell[dot]com, or on my Twitter feed.