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In a recent informal discussion letter, EEOC senior attorney advisor Raymond L. Peeler answered an employer's question about when interns might come under the protection of EEOC-enforced laws, including ADA Title I and the Genetic Information Nondiscrimination Act.

"For unpaid or volunteer interns, coverage as an employee ... likely will turn on whether the intern receives 'significant remuneration,'" Peeler wrote.

Look at the benefits involved in the position, Peeler advised. They may include things like workers' compensation, a pension, group life insurance, and access to professional certifications.

Such benefits don't have to be provided by the employer and may come from a third party as a result of the intern's volunteer service.

"So, if an education institution provides significant benefits to an unpaid intern for her volunteer work with an outside employer," Peeler explained, "she may qualify as an employee of that employer."

However, where the benefits aren't significant, the intern probably falls outside of EEOC coverage.

"An intern who receives only some small benefit that is an 'inconsequential incident of an otherwise gratuitous relationship' will not be an employee," according to Peeler.

Paid interns. Peeler also explained that paid interns are subject to different considerations, and the focus is on the intern's relationship with the employer. Specifically, the issue centers on whether the employer controls the means and manner of the intern's work performance.

Peeler noted a number of factors that play into the analysis, including the employer's right to control where the worker performs the job, the employer's provision of benefits, and the parties' belief that they created an employer-employee relationship.

Additionally, some courts have decided that the focus should be on whether the primary role of the paid intern is as a student. For example, Peeler cited Pollack v. Rice Univ., No. H-79-1539 (S.D. Tex. 03/29/82), which found that an applicant to a graduate program that employed students as instructors was a student, not an employee, for Title VII purposes.

Peeler also clarified that the EEOC does not interpret the Family and Medical Leave Act, which is regulated by the Department of Labor.

Read more at the WorkersComp Forum homepage.

May 7, 2012

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