Table of Contents of this Article:
United States federal and States Rules on Unpaid Interns
By Randy Berholtz. He is an adjunct professor at the Thomas Jefferson School of Law.
In my work for a small, publicly held pharmaceutical company, I frequently bring in law students with science or engineering backgrounds or some experience in our industry to serve as interns. Typically, they aim to become either patent agents or patent, trademark, corporate, or licensing lawyers.
Hosting a legal intern with a keen interest in learning about these practice areas – even for just one semester – can benefit an in-house legal team as well as the student. I am a bit spoiled in my selection process because I also teach, which allows me firsthand, close-up experience with potential interns and enables me to pick the brightest and most qualified. But I want to offer some guidelines for selecting and supporting student interns.
Creating the Relationship
Every successful internship starts with a careful interview. In general, I look for interns who are interested in my industry (bioscience) and who work hard but also are pleasant to work with. I don’t promise interns jobs with my company, but I do think an internship can help determine whether there may eventually be a fit between the student and the company.
Most internships are managed through a law school’s career placement office. But it’s important for employers and supervisors to have a clear understanding of state and federal requirements for unpaid internships, especially in light of recent litigation across the country. The U.S. Department of Labor has set six main criteria. (See “Legal Requirements for Unpaid Internships,” right.)
In most cases, students actually pay their law school for the privilege of doing the internship. But companies often provide a small stipend to cover lunch and parking or commuting expenses; if an intern stays longer than a semester, a separate agreement may provide for a larger stipend. Some schools also ask supervisors to evaluate interns at least once and allow them time to attend training related to their work. Companies normally require interns to sign agreements concerning confidentiality or proprietary information. And in some cases interns receive computers and cell phones.
Interns typically work 10 to 20 hours per week for a semester. Some may also be patent agents and or Certified Law Students who are allowed, under the supervision of a qualified attorney, to perform activities related to the practice of law.
It may be hard to believe, but some law students out there really believe that in-house counsel – especially general counsel – are legal rock stars. And they are eager to do whatever they’re asked. But it is important that each legal intern have a direct supervisor who gives the student projects, monitors his or her progress, serves as a company resource, and completes the student’s evaluation. For a great relationship, I’ve found that the ideal supervisor is patient, really likes working with junior lawyers, and learns about the intern’s interests and skills.
Be aware that interns watch how you behave and whether you enjoy your work, and they will learn more from their observations than from listening to what you say. So take an interest in your interns’ career development. They will want to understand what you do, whether you like doing it, whether they can see themselves enjoying it, and how they can gain the contacts, experience, and references to get a job like yours.
Interns must be given the widest possible variety of experiences and responsibilities. They should perform a minimal amount of nonattorney activities such as answering phones or filing. And their work should not replace that of a lawyer or paralegal or other staff person; it should be more like what the supervisor does.
I have used intellectual property-minded interns to help manage my patent and trademark portfolio and to review the IP aspects of acquisitions and litigation. Interns more interested in corporate law and licensing can help with private and public securities filings, and they can review contracts – starting with confidentiality agreements and progressing to licensing, commercial, and merger-and-acquisition agreements.
I always try to integrate interns into my department and company, including them in weekly meetings in which we talk about legal events and the work to be done. I expect interns to own the part of our legal work that they’re temporarily responsible for, and I let junior lawyers supervise them on some matters.
I also like patent and IP interns to work directly with our scientists, outside law firms, and our senior management. On the corporate and licensing side, I have them work directly with our business development, marketing, and sales teams. That puts them in a position where they can be the only legal specialist in the room and take direct responsibility for certain aspects of our routine work.
After the Internship
Finally, I do my best to help my interns find a job. Over my career, I have hosted approximately 15 interns and hired just 2; for the other 13, I wrote letters of recommendation and called friends at trade groups and private law firms in search of additional opportunities. And I remind them that I expect each one at some point in their careers to hire an intern. Who knows? I may have to call them some day in search of an internship for a student I know or a job for a particularly promising new lawyer.
LEGAL REQUIREMENTS FOR UNPAID INTERNSHIPS
These federal rules apply to internships at private, for-profit firms.
-The internship must be similar to training that would be given in an educational environment.
-The arrangement must be for the benefit of the intern.
-The intern must not displace regular employees and must work under close supervision.
-The employer may not derive an immediate advantage from the intern’s activity and may actually have its operation impeded.
-The intern may not necessarily be entitled to a job at the end of the internship.
-Both the employer and the intern must understand that the intern is not entitled to wages during the internship.
In California, the state Department of Labor Standards Enforcement has said additional criteria may be applied, including: that interns be barred from receiving employee benefits; that the internship be part of a curriculum and that screening for it be different from screening for employment; that the training be generalizable beyond the employer; and that postings for internships clearly describe them as training.