In my opinion, most success in life comes from preparation, hard work, and grit, as opposed to luck. When there are goals in sight, take steps to best position yourself to achieve those goals. When I was considering attending law school, I spent time as a paralegal at an international law firm and then at a management consulting company working with General Counsels and their legal teams. While the two experiences were quite varied, both of these opportunities solidified my interest in law, as well as my later decision to attend law school. When I first started practicing law as a young attorney, I was offered time to shadow older attorneys performing certain tasks that I had not done yet – e.g. taking or defending a de bene esse deposition, arguing a motion in court that would be dispositive on the direction of the case, examining a witness on the stand. While I could not necessarily bill (how attorneys generally account for time spent doing tasks as correlated to amount billed to the client) for these tasks, they were extremely valuable first hand learning opportunities. Of course, I was mindful to not interfere with the particular attorney’s workflow, sensitive to ethical and confidentiality considerations, as well as gracious for the opportunities. Being physically present for these types of tasks also gave me more confidence when it was time for me to do them on my own.
(Gabriella and Grand Eloquence “Ellie”, OTTB /Barnesville, Maryland)
With spring semester underway and summer quickly around the corner, I recently received a call from a good friend/colleague notifying me that her teenage daughter was looking for an unpaid internship in the horse industry. More specifically, the young woman – a lover of science and horses, as well as an accomplished horsewoman – was looking to work in the veterinary industry and hopefully with a top equine vet as one of her aspirations is to potentially become an equine vet herself. Of course, reminding me of my experiences above (though none were unpaid positions) as a young adult, the benefits of a “work for free” type of situation are numerous, including first hand exposure to a particular industry of interest and an accomplished individual in the field, as well as inspiration for the endeavor of interest. Further, such experiences often confirm an individual’s commitment to pursue a particular path or go in a different direction.
(Gabriella and Rock Star, OTTB / Leesburg, Virginia.)
Of course, while some individuals in the horse industry still rely on “handshake deals” (i.e. no contracts), if considering an unpaid position, be aware of any potential ramifications of the Fair Labor Standards Act (FLSA) as applicable to interns and/or students. Further, do not be surprised if the issue comes up when engaging in the internship application process. While not exhaustive, a couple points to be aware of:
Fair Labor Standards Act (FLSA) and Unpaid Interns
The FLSA requires “for-profit” employers to pay employees for their work. Interns and students, however may not be “employees” under the FLSA in which case the FLSA does not require compensation for their work. Generally, courts use the “primary beneficiary test” to determine whether an intern or student is an employee under the FLSA – i.e. courts examine the “economic reality” of the intern-employer relationship to determine which party is the primary beneficiary of the relationship. There are 7 factors that courts utilize as part of this “flexible” test with no single factor as determinative:
1 – Understanding the Expectation of No Compensation. Do both parties clearly understand that there is no compensation involved? Consider 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. An intern may need to execute an application form acknowledging the fact that he/she will not be paid.
2 – Assessing Whether the Training is Educational. Is the training similar to that of an educational institution or environment? 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. Interns should be hired for their benefit – specifically to be provided educational training by experienced employees.
3 – Integration into Formal Education Program. Is the internship connected to an educational institution? The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit. The more connected, the likely more in favor of an “intern” rather “employee” designation. Applicants who receive educational credit and/or are sponsored by an educational institution may be preferred.
4 – Corresponding to Academic Calendar. Is the internship coordinated with the academic calendar? The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar. (E.g. the summer or semester length).
5 – Duration. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
6 – Assessing Impact on Paid Employees. Does the intern’s work complement rather than displace the work of paid employee? 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. Carefully assess revenue generating tasks. Further, the intern/student should not be filling a vacant position.
7 – Managing Entitlement. Does the intern expect a paid position at the close of the internship? 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. As per #1 above, an intern may need to acknowledge an application form which indicates there is no expectation of a paid position at the end of the internship.
In short, each relationship will be assessed relative to its particular facts and circumstances. But, interns who based on the facts and circumstances are considered to be employees per above will have to be paid.
This article does not constitute legal advice. When questions are based on specific situations, direct them to a knowledgeable attorney.