Last Thursday, popular rapper Macklemore announced that his company Macklemore LLC would be offering a merchandising internship. But is the Northwest rap star opening himself up to labor law violations?
The announcement, formally made on Macklemore’s Facebook page, and was immediately met with comments concerning the validity of his offer–specifically the age restrictions and payment status of the internship.
Age ain’t nothing but a number:
Under the requirements for the internship in Macklemore’s post, he listed that they were available in mornings, had a working vehicle, and that they were between 18-24 years old. Oops.
Calling for a limit on age in your job ad falls pretty smack in the middle of age discrimination. As Robin Shea notes in a post for Employment and Labor Insider that the Age Discrimination in Employment Act requires a “but for” cause, that without a discriminatory clause employees wouldn’t be fired:
…just because age has to be the “but for” cause, that doesn’t mean that it has to be the only cause. It’s more like the straw that broke the camel’s back. You can have other causes, but if the discriminatory cause is the one that puts the camel in traction, then the discriminatory cause is still the “but for” cause. My esteemed colleague Donna Ballman pointed this out not too long ago, after the Supreme Court’s decision requiring “but for” causation in retaliation cases.
Assuming that the merchandise internship in question won’t take on anyone outside the 18-24 range, they’re opening themselves up to some potential age discrimination claims. More likely they’re trying to limit the internship experience to students hoping to gain some experience in the field. If that’s the case though, their ad needs some reworking.
Get money, get paid:
When it comes to unpaid internships, public and not-for-profit companies are in the clear. But as a for-profit company, Macklemore LLC has a few more hoops to jump through. The Department of Labor has developed a six-factor test to ensure for-profit companies with intern programs fall under the Fair Labor Standards Act. Namely:
- Is the internship similar to training the intern would receive in an educational environment? As Mark Wilkinson wrote in a guest blog for Wage & Hour Insights, “the more an internship program is built around the classroom or academic experience as opposed to the employer’s actual operations, the greater the chance the internship will be considered an extension of the student’s educational experience.”
- Is the internship designed for the benefit of the intern? Will they learn new skills or gain college credit?
- Does the intern work alongside regular employees without filling in for them?
- Does the intern not provide the employer with any immediate advantages or services? If your internship looks a lot like a cliche–sorting mail and fetching coffee–then your internship is not legit.
- Is the intern aware of the endpoint for the internship, and do they understand that they are not entitled to a job at the conclusion of their time there?
- Are both the employer and the intern on the same page that the intern will not receive wages during their time in the internship?
Wilkinson notes that with internships, it’s less about the label of the work and more about the substance of the duties that would factor into an FLSA complaint. So if Macklemore LLC’s merchandising internship met all the above requirements, then there would be employment relationship under the FLSA. But if any of the above questions were met with a no, the intern would be entitled to compensation (and any overtime) for their work. At least one past intern claimed they received college credit for their work, but it’s unclear if their internship would otherwise check off all the DOL’s requirements.
The issue of unpaid internships is making its way through the courts, with the Second Circuit heard arguments on Friday in two cases of former Fox Searchlight interns and former Hearst Corporation interns that will raise critical issues for the fate of internships with for-profit companies. But no matter how this decision goes, Wage & Hour Insights says Macklemore LLC and other employers should still be treading carefully with their unpaid internship listings:
The Second Circuit may not ultimately adopt either the district court’s or the DOL’s position on whether Fox Searchlight should have classified its interns as employees. Even if it rejects them completely, though, employers should read the DOL’s guidance in the brief carefully. It is unlikely that anything short of a Supreme Court decision would cause the DOL to abandon its principles on unpaid internships.
We’ll have to see if Macklemore LLC’s hiring practices come under fire from any lawsuits, but hopefully he’s learning better hiring practices from the comments to his post.