Monday, August 18, 2014

Legislation to Cover Interns Under the Human Rights Act

Awaiting action by the Governor is HB 4157 which defines the term intern for the first time in Illinois statutes.  The bill amends the Illinois Human Rights Act to cover interns under the Act. In doing so, the amendment defines an unpaid intern as follows:

(1) "Employee" includes:

(a) Any individual performing services for remuneration within this State for an employer;
(b) An apprentice;
(c) An applicant for any apprenticeship.

For purposes of subsection (D) of Section 2-102 of this Act, "employee" also includes an unpaid intern. An unpaid intern is a person who performs work for an employer under the following circumstances:

(i) the employer is not committed to hiring the person performing the work at the conclusion of the
intern's tenure;
(ii) the employer and the person performing the work agree that the person is not entitled to wages for the work performed; and
(iii) the work performed:
(I) supplements training given in an educational environment that may enhance the employability of the intern;
(II) provides experience for the benefit of the person performing the work;
(III) does not displace regular employees;
(IV) is performed under the close supervision of existing staff; and
(V) provides no immediate advantage to the employer providing the training and may
occasionally impede the operations of the employer.

The definition generally follows that which has been promulgated by the U.S. Department of Labor but this is the first instance of legislation in Illinois which codifies both the concept and definition of intern. Moreover, although this definition is found in the Illinois Human Rights Act, bringing interns under the protection of these anti-discrimination laws, it will undoubtedly be adopted in wage actions as well.
Enactment of this legislation also signals an ever increasing scrutiny on internship programs. As the economy downturned and more college students and others entering or re-entering the workforce found paid employment more difficult to secure, people became more willing to be “interns” with the hope that it would provide a foot in the door for gainful employment.  Many employers took full advantage of these opportunities and increased their workforce with free or low cost labor. As the use of interns increased, so did the interest of both federal and state agencies and claims increased for back wages by interns who came to believe they were really employees. If a true intern relationship is not found to have existed, employers can be liable for back wages at minimum wage,  interest, penalties and the “intern’s” attorney’s fees.
Any organization using or considering the use of interns should consult with their attorneys to ensure that the relationship meets federal and state requirements. The attorneys at Ancel Glink regularly advise clients in the creation of internship  programs as well as all aspects of the employment relationship. Contact Margaret Kostopulos or any of the labor and employment attorneys at Ancel Glink for more information on how they can advise on workplace issues.