Paul DeCamp, a Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC office, was quoted in the Bloomberg BNA Daily Labor Report, in “Unpaid Internships Are Back with the Labor Department’s Blessing,” by Rebecca Greenfield.

Following is an excerpt:

The U.S. Labor Department rolled out new guidelines last week that make it easier for companies that want to hire interns but don’t want to pay them.

The new rules establish a “primary beneficiary test” that ratifies programs that help the intern more than the company. Seven factors determine whether the gig meets the standard. One says internships should provide training that “would be similar to that which would be given in an educational environment.” Another says the intern’s job should complement, not displace, the work of paid employees.

Unlike the previous standard, an unpaid internship doesn’t necessarily have to meet any proscribed threshold related to those seven factors. Each internship program will be justified on its own merits, a more forgiving benchmark for employers. …

“This standard that the department is setting forth is easier for companies to satisfy in terms of internships qualifying as unpaid,” said Paul DeCamp, an attorney who works with employers at Epstein Becker & Green.

The old test was six factors, one of which prohibited employers from deriving “immediate advantage from the activities of the intern.” Companies found that standard overly rigid, arguing that it made it difficult for most internships to meet that requirement.

“If the intern did any productive work for the company it would -- at least based on the strict reading of the test -- be required that activity be paid, which is not to put too fine a point on it, ridiculous,” DeCamp said. …

DeCamp also suspects there will be fewer companies that rely on interns for menial tasks and little else. “If the intern is primarily doing grunt work, not learning skills, not learning about the industry, but is simply replacing work that would’ve been done by paid employees and therefore amounting to nothing other than free labor and with no discernible benefit to the intern, I think courts would still be willing to say that is employment,” DeCamp said.


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