EEOC Informal Discussion Letter

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

Federal EEO Laws:  When Interns May Be Employees  

December 8, 2011

[Address] 

Dear ____: 

This letter responds to your November 7 and November 10, 2011 e-mails to Youth.AtWork@eeoc.gov , asking whether unpaid or paid interns are protected by federal Equal Employment Opportunity (EEO) laws, and, if not, whether any further employment laws pertain to interns.  As an initial matter, please note that we must confine our response to EEOC-enforced laws, including Title VII of the Civil Rights Act of 1964 (Title VII), the Equal Pay Act of 1963 (EPA), the Age Discrimination in Employment Act of 1967 (ADEA), Title I of the Americans with Disabilities Act of 1990 (ADA), and Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA). If you require information about coverage of interns under other employment laws, we suggest that you refer to the relevant agency's web site, such as www.dol.gov to learn about coverage under the Fair Labor Standards Act or Family Medical Leave Act.

For unpaid or volunteer interns, coverage as an employee under EEOC-enforced laws likely will turn on whether the intern receives "significant remuneration" in some form, such as a pension, group life insurance, workers' compensation, or access to professional certifications.  See EEOC, Compliance Manual, Section 2: Threshold Issues, at part 2-III.A.1.c. (discussing coverage for volunteers), available at http://www.eeoc.gov/policy/docs/threshold.html   (hereinafter Threshold Issues Guidance).  Further, these benefits need not be provided by the employer – benefits from a third party as a consequence of the volunteer service will still qualify.  Threshold Issues Guidance (citing Pietras v. Board of Fire Comm'rs, 180 F.3d 468, 473 (2d Cir. 1999)).  So, if an educational institution provides significant benefits to an unpaid intern for her volunteer work with an outside employer, she may qualify as an employee of that employer.

By contrast, an intern who receives only some small benefit that is an "inconsequential incident of an otherwise gratuitous relationship" will not be an employee.  Threshold Issues Guidance (quoting Haavistola v. Community Fire Co. of Rising Sun, Inc., 6 F.3d 211, 222 (4th Cir. 1993)).  Benefits that courts have not deemed to be significant include academic credit, practical experience, and scholarly research.  See Jacob-Mua v. Veneman, 289 F.3d 517, 521 (8th Cir. 2002) (student researcher is not an employee by virtue of obtaining research during her internship that was valuable for her dissertation) (abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031 (2011) (en banc)); Piotrowski v. Barat College, No. 93 C 6041, 1994 WL 594726, at *1 (N.D.Ill. Oct. 27, 1994) (nurse who received practical experience towards her degree plus a tuition waiver, but otherwise was not paid, is not an employee).  Nonetheless, even where no significant remuneration exists, unpaid interns may be considered employees if the volunteer work is required for regular employment, or regularly leads to paid employment with the same employment institution.  Threshold Issues Guidance (citing Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 198 n.4 (3d Cir.), cert. denied, 513 U.S. 1022 (1994)).  Similarly, an applicant to, or a participant in, a training or apprenticeship program is protected against discrimination with respect to admission to, or participation in, the training or apprenticeship program, regardless of whether the individual is an "employee."  42 U.S.C. § 2000e-2(d) (Title VII); 42 U.S.C. § 12112(a) (ADA); 29 C.F.R. § 1625.21 (ADEA).

Paid interns are not volunteers, and therefore have different considerations.  In these cases, courts must weigh all aspects of the intern's relationship with the employer, focusing in particular on whether the employer controls the means and manner of the intern's work performance.  Threshold Issues Guidance at 2-III.A.1.  Factors that would weigh in favor of covering an intern as an employee include: 

(1) the employer's right to control when, where, and how the worker performs the job; (2) the lack of skill required to perform the work; (3) the employer's provision of tools, materials, and equipment; (4) the work being performed on the employer's premises; (5) a continuing relationship between the parties; (6) the employer's right to assign additional projects to the intern; (7) the employer's authority to set the hours of work and duration of the job; (8) payment of the intern by the hour, week, or month, rather than by the job; (9) the intern's failure to hire and pay assistants; (10) the intern's performance of work that is part of the employer's regular business; (11) the employer being in business; (12) the intern's lack of her own distinct occupation or business; (13) the employer's provision of employee benefits such as insurance, leave, or workers' compensation; (14) the employer treating the intern as an employee for tax purposes (i.e., withholding federal, state, and social security taxes); (15) the employer's authority to fire the worker; and (16) the parties' belief that they created an employer-employee relationship. 

Threshold Issues Guidance (citing Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 323-24 (1992).  Other factors also may weigh in this analysis – for example, some courts place weight on whether the primary role of the paid intern is as a student.  See, e.g., Cuddeback v. Florida Bd. of Educ., 381 F.3d 1230 (paid graduate researcher's main purpose to satisfy requirements of her graduate program weigh in favor of treating her as a student, but are outweighed by the university's provision of a stipend, fringe benefits, sick and annual leave, and participation in a collective bargaining agreement that governs the employer/employee relationship); Pollack v. Rice Univ., No. H-79-1539, 1982 WL 296 (S.D.Tex. Mar. 29, 1982) (applicant to graduate program that employs students as instructors is a student, not an employee for Title VII purposes).  

We hope this information is helpful to you. Please note, however, that this letter does not constitute an opinion or interpretation of the EEOC within the meaning of § 713(b) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-12(b); under § 10 of the Portal-to-Portal Act of 1947, 29 U.S.C. § 255 (EPA); or under § 7(e) of the ADEA, as amended, 29 U.S.C. § 621 et seq., which is also incorporated in § 10 of the Portal-to-Portal Act.  Rather, it represents an informal discussion of the matters raised. 

Sincerely, 

 
 
Raymond L. Peeler 
Senior Attorney Advisor

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