Revisiting the Treatment of Unpaid Internships Under the Fair Labor Standards Act

The extent to which the Fair Labor Standards Act (FLSA) applies to internships and other similar training programs was one of the cutting edge legal issues argued during last spring’s Jenkins Honors Moot Court Competition.  In the months since the Jenkins Competition concluded, both the Second Circuit and the Eleventh Circuit have issued rulings that clarify the legal issues addressed in the Jenkins Competition.  The treatment of interns under the Fair Labor Standards Act is once again making news.

The fictitious respondent in the Jenkins Competition was a law student who participated in an unpaid internship at a large, for-profit law firm.  As part of this program, the student primarily worked on pro bono matters under the supervision of a senior attorney.  The student was also able to participate in a mock trial and attend weekly training lunches.  However, the student also volunteered to work on a number of projects that were not attached to any pro bono cases or training.  They were more of an administrative or secretarial nature.  After an unceremonious dismissal from the program (which was the basis for another claim in the case), the law student brought a suit against the firm, claiming that she was owed compensation for the work she did under her summer internship program because she qualified as an employee under the FLSA.  The law firm, as one would expect, challenged this assertion, claiming that the student fell under the “trainee” exception carved out by the Supreme Court in Walling v. Portland Terminal Co. (1947).

The Court in Walling clearly meant to provide an opportunity for individuals to be trained without pay by a for-profit business in an industry the individual hoped to enter later.  In its ruling, the Court ruled that the FLSA’s definition of an employee as someone who is “suffer[ed] or permit[ed] to work” was “obviously not intended to stamp all [working] persons as employees.”  The Court saw the benefit of internship programs for both those seeking to be trained as well as the businesses seeking to develop their future workforce; classifying all such individuals as employees under the FLSA, and thus requiring payment, would limit training opportunities and hurt both groups.  The problem with the Court’s ruling in Walling is that it did not establish a clear test for determining whether an individual is an intern or whether she is an employee covered by the protections in the FLSA.

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Schnitzel, Beer, and Marketing Your Study Abroad Experience

Classroom at Justus Liebig UniversityThis past summer I was fortunate to have had the opportunity to participate in Marquette University Law School’s summer program in Giessen, Germany.  The program, run jointly with the University of Wisconsin Law School and Justus Liebig University in Giessen, provides Marquette students with the opportunity to study a variety of international law topics at a foreign university with classmates from around the globe.  Course offerings this past summer included Comparative Law, International Economic Law & Business Transactions, International Intellectual Property Law, and the Law of Armed Conflict.  The courses were taught by both American and German professors over the course of a (somewhat intense) four week period that included weekend excursions to Munich and Berlin.  While the subject matter of the classes was incredibly interesting, this was further magnified by the international make-up of the student body.  My classmates this past summer hailed from 17 different countries including the United States Mexico, Brazil, Peru, Germany, Spain, Moldova, Turkey, India, Sri Lanka, Vietnam, South Korea, China, Benin, Senegal, Cameroon, and Ethiopia.  The discussions and conversations we had, both in and out of the classroom, provided insights about international legal issues that would be difficult to duplicate outside of such an experience. Not only was I able to learn about international, German, and EU law, but I was also able to gain a better understanding of US law.

The value of a study abroad experience, both in terms of the substantive knowledge gained as well as the “soft” skills developed, is likely to be clear to someone who teaches or participates in such a program (see Professor Fallone’s semi-exhaustive list of ten reasons why one should study abroad).  However, those less familiar with international study experiences may not always ascribe the same value or benefit to study abroad programs.  This can be problematic for law students who hope to show potential employers that their time spent studying overseas was more than just an excuse to sample copious amounts of schnitzel and beer.   While CALI awards, clerkships, internships, pro bono work, and participation in law review or moot court are all ways that students have traditionally distinguished themselves to potential employers, the same has not been true for participation in study abroad programs, which are a relatively new phenomena in the law school curriculum.

Continue ReadingSchnitzel, Beer, and Marketing Your Study Abroad Experience