Could an unpaid MFT associate sue for wage theft and win?

The BossIn 2013, two former interns at publishing company Conde Nast filed suit demanding back wages and attorney fees. Their lawsuit came on the heels of two other successful lawsuits demanding that interns actually get paid for their work: 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 the year before, 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 unpaid MFT associate win a similar lawsuit?

I’m not a lawyer, but it seems to me that in for-profit settings, unpaid MFT associates 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 associate, 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. California changed the professional title for post-degree, pre-license MFTs and professional clinical counselors in 2018 to “associate” from “intern.” However, many employers continue to refer to their associate positions as “internships,” possibly reflecting a misunderstanding of the nature and obligations of such positions.)

In January 2018, the Department of Labor changed its guidance on unpaid internships in for-profit settings. There is now a seven-point test that is used to determine who the “primary beneficiary” of the relationship is: The employer, or the intern. If it is the employer who primarily benefits, the worker is an employee, and cannot be unpaid. Those seven points:

  1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
  2. 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 educational institutions.
  3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. 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.
  7. 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.

The first point there goes to the employer (that is, it would work in favor of allowing an associate to work as an unpaid intern). It’s easy enough to put in a contract that the “internship” is unpaid. The second is perhaps more debatable, but such positions do typically offer supervision, so let’s give that one to the employer as well. Skipping ahead to the last point, most associate positions that I’m aware of make it quite clear to their “interns” that the therapist is not entitled to a job at the conclusion of their “internship,” so that also suggests that an unpaid “internship” would be acceptable. Score three for the employers.

That, of course, leaves the other four. The third point is certainly problematic. MFT associates working in unpaid “internships” aren’t getting any kind of academic credit. They’ve already completed their master’s degrees. Same for the fourth point; there’s no academic calendar for the position to adhere to. On the fifth point, the best evidence we have so far suggests that most therapists’ clinical outcomes improve in their first year of clinical experience — that is, their practicum year — and not after that. So it may be very difficult for employers to establish that they are continuing to provide their “interns” with “beneficial learning” unless they can correspondingly show that the intern’s clinical outcomes are continuing to improve. For many, that would be a meaningful challenge.

The sixth point would also likely go to the intern: In many for-profit settings, the associates provide a significant amount of clinical services. In for-profit clinics and hospitals, they may be providing 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 staff, 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] the work of paid employees” to me.

Since for-profit settings that utilize MFT associates as unpaid “interns” to provide clinical services seem to win — at best — three out of the seven points in the test above, it would appear to me that an MFT associates who worked without pay in a so-called “internship” 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 have much more leeway when it comes to volunteer positions. But any time MFT associates complain about the glut of unpaid positions 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.

Originally posted June 13, 2013. Updated to match new DoL guidance March 25, 2019.