The Law Governing Unpaid Interns, Part II: Rights Under Federal and State Nondiscrimination Laws

This is the second of two blogs covering the law governing unpaid interns and volunteers. Our first blog reviewed the basic criteria for determining whether a worker can properly be considered an unpaid intern or volunteer. This blog focuses on the rights of these uncompensated workers under federal and state nondiscrimination laws.

Federal Law

For unpaid interns and volunteers, coverage under the laws enforced by the Equal Employment Opportunity Commission (EEOC laws), which protect employees from discrimination based on race, color, religion, sex, national origin, age (40 or older), disability or genetic information, often turns on whether the individual receives significant, non-wage remuneration in some form, such as a pension, group life insurance, worker’s compensation or access to professional certifications.

Bills have been introduced in Congress that would explicitly prohibit employers from discriminating against unpaid interns and give them rights for a violation of the EEOC laws; the most recent of these bills (H.R. 651) was introduced in January, but it appears unlikely to be enacted this year.

Connecticut Offers Unpaid Interns Additional Rights

While federal statutes prohibiting discrimination against unpaid interns have failed to pass, Connecticut Public Act 15-56 clarifies that unpaid interns in Connecticut are entitled to protection from discriminatory workplace practices in much the same way as employees are protected under the Connecticut Fair Employment Practices Act (CFEPA). And like employees, an intern may file a complaint of an alleged violation with the Connecticut Commission on Human Rights and Opportunities and pursue a civil action in Superior Court.

In order to be covered by PA 15-56, the worker must meet the statutory definition of “intern,” which consists of several conditions which are very similar to the test that the U.S. Department of Labor (US DOL) has published for determining whether a worker may properly be classified as an intern. However, as our prior blog discusses, the US DOL’s test was rejected by the Second Circuit Court of Appeals in Glatt v. Fox Searchlight Pictures, Inc. So an unpaid worker could, at least in theory, be considered an intern in Connecticut under the Glatt factors, but not under the state’s nondiscrimination law. To resolve this apparent ambiguity, private-sector companies in Connecticut should:

  • Use the Glatt factors to determine whether or not an individual should be classified as an unpaid intern or a paid employee (see our prior blog for the Glatt factors); and
  • Take steps to ensure that all workers—paid or unpaid—are treated in a nondiscriminatory manner. For example, the employee handbook and other personnel policies should be updated to reflect that interns are protected from workplace harassment and unfair treatment, supervisors should be reminded of the law and the interns themselves should be informed of their rights.

The Rules are Different for Volunteers at Not-for-Profit Organizations

Last year, the Connecticut Supreme Court ruled that Public Act 15-56 does not apply to volunteers at non-profit organizations (Commission on Human Rights and Opportunities v. Echo Hose Ambulance et al.). In Echo Hose Ambulance, a volunteer at a not-for-profit ambulance company claimed she was discriminated against on the basis of her race and color in violation of Title VII of the federal Civil Rights Act of 1964 and CFEPA. The Connecticut Supreme Court affirmed the lower court decisions which held that the federal “remuneration test” applies to determine whether a volunteer should be treated as an employee. The remuneration test looks first to whether the worker has received direct or indirect compensation for his or her services, and then to the nature of the relationship between the organization and the volunteer. Since the Echo Hose Ambulance volunteer did not claim that she received any compensation, she did not meet the first part of the test and therefore was held not to be entitled to protection under either federal or state law.

In light of Echo Hose Ambulance, Connecticut charities should take care not to provide any remuneration, such as life insurance or tuition reimbursement, to their volunteers (though, as we noted in an earlier blog discussing the trial court’s decision in Echo Hose Ambulance, the fact that a volunteer has the opportunity for future employment arising from his or her status as a volunteer may not be sufficient remuneration to establish an employment relationship).

Alternatively, a not-for-profit organization might consider whether it makes sense to revise its internal antidiscrimination policies to cover volunteers, though this could expose the organization to significantly more discrimination claims. Charitable organizations in Connecticut should therefore consult with legal counsel prior to extending formal discrimination protection to their volunteers.