Following a request from the ABA for clarification on work that may be performed by unpaid law student interns, the U.S. Department of Labor (DOL) responded Sept. 12 that law students may work as unpaid interns on pro bono matters at for-profit law firms.
In a letter to ABA Immediate Past President Laurel G. Bellows, Labor Department Solicitor M. Patricia Smith stated that the Fair Labor Standards Act (FLSA) generally does not permit individuals to volunteer their services to for-profit businesses such as law firms. She said that the FLSA does, however, permit individuals to participate in unpaid internships or training programs conducted by for-profit entities if certain criteria are met.
“Under certain circumstances, law school students who perform unpaid internships with for-profit law firms for the student’s own educational benefit may not be considered employees entitled to wages under the FLSA,” Smith said, explaining that the determination of whether an internship meets the exclusion depends upon all of the facts and circumstances of each student’s case.
She listed six criteria that must be met:
•the internship, even though it includes actual operation of the facilities of the employer, is similar to training that would be given in an educational environment;
•the internship experience is for the benefit of the intern;
•the intern does not displace regular employers, but works under close supervision of existing staff;
•the employer providing the training derives no immediate advantage from the activities of the intern;
•the intern is not necessarily entitled to a job at the conclusion of the internship; and
•the employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
Smith also clarified that recent law school graduates who have not yet passed any state bar may not volunteer for private law firms to perform pro bono work without pay.
In those cases, law schools would not have the same ability to act as intermediaries between graduates and the law firms that they do with current students and would not be able to monitor the internship’s compliance with the criteria.
Bellows sought clarification from Smith in May, explaining that ABA Accreditation Standard 301(b) requires law schools to offer substantial opportunities for student participation in pro bono activities. The primary purpose of these programs, Bellows said, is to advance and expand the education for the students and to provide desperately needed legal assistance to the underserved.
In her letter, Bellows emphasized that the ABA supports the department’s efforts to obtain fair wages for those clearly falling under the FLSA, but she maintained that the FLSA language was unclear about its application to pro bono internships with private law firms or business law departments. The ABA agrees that exploitation of law students and other interns is unacceptable, but the FLSA uncertainty inhibited law firms from offering students the opportunity to work on pro bono matters in a real life setting, she wrote.
ABA President James R. Silkenat said the DOL clarification “will assist law students seeking to gain legal experience and increase their volunteerism.” He also emphasized that the decision will ensure that law firms can continue to help the many people in need of legal assistance through pro bono efforts.”