Unpaid Interns: The New Category of Employees?

July 30, 2015 | By

The fiery debate over the employment status of and protections afforded to unpaid interns is alive and well! It appears that Congress is continuing the trend of providing additional workplace protections to unpaid interns.  On Monday, July 27, 2015, Representative Elijah Cumming (D-Md.) introduced three separate pieces of proposed legislation aimed at preventing workplace discrimination against unpaid interns. The Federal Intern Protect Action (H.R. 3231), the Unpaid Intern Protection Act (H.R. 3232) and the Congressional Intern Protection Act (H.R. 3233) would apply to unpaid interns working for federal agencies, private sector employers, and state and local governments, and Congress respectively.

Historically, it has been unclear whether unpaid interns are protected against workplace discrimination and harassment under the current federal anti-discrimination laws. The three major pieces of federal legislation prohibiting discrimination and harassment in employment practices—Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (“ADA”) and the Age Discrimination in Employment Act (“ADEA”)—all circularly define the term “employee” as an individual employed by any employer. Notably absent from the definition of employee is any requirement that an individual must receive compensation for the services performed for an employer in order to meet the statutory definitions of employee.

Although the statute make no mention of compensation, the majority of courts interpreting Title VII have routinely held that an individual’s status as an employee is largely dependent upon whether or not the individual receives compensation for the work s/he performs. Likewise, when considering claims by unpaid interns alleging violations of the ADEA, courts have refused to extend the ADEA’s protections to these claimants because unpaid volunteers are not employees within the meaning of the statute. It should come as no surprise that courts have reached very similar results when assessing claims of disability discrimination under the ADA brought by unpaid interns. Despite the litany of court case which have historically viewed compensation as dispositive of employee status, several recent federal court decisions have questioned the wisdom of this approach , electing instead to conduct a fact-intensive inquiry into the alleged employee/employer relationship to determine an individual’s status as an “employee.”

This recent departure from longstanding precedent has reignited serious debates about whether there is a gap in the federal anti-discrimination laws regarding protections for unpaid interns. Representative Cummings and the bills co-sponsor believe that the current federal framework contains a loophole when it comes to unpaid interns that need to be addressed by supplementing the workplace protections provided under Title VII, the ADEA and the ADA.

The proposed legislation relies on the extensive legal framework established by Title VII, the ADEA and the ADA, prohibiting discrimination or harassment against unpaid interns in both the public and private sector on the basis of age, race, color, religion, sex, national origin or disability.