At the Employment Law Center of Maryland, the approach of summer means sunshine, humidity—and dozens of calls from interns with wage, discrimination, or harassment cases. And while we're not generally in the camp providing advice to employers (the Employment Law Center of Maryland only represents employees), we can all get behind the idea of providing these aspiring workers with a positive, drama-free experience this summer. So, let's talk about what you, Maryland employers, can do to avoid intern drama.
What is an intern?
Maryland statute sets forth a three part definition for an intern:
Someone the employer has not committed to hire at the end of the internship;
Someone both parties agree is not entitled to wages; and,
Someone who does not displace regular employees (i.e., is there for their benefit, not the employer's)
Here's a rule of thumb we use at the Employment Law Center of Maryland to determine whether someone is legitimately an intern—does the cost to the employer of having this individual in the workplace outweigh the benefit? If you're doing an internship program right, the cost (i.e., staff time in training and supervision) should outweigh the benefit to your company.
if you're doing an internship program right, the cost (primarily, staff time in training and supervising) should far outweigh the benefit
If your internship program is resulting in net profits (either in time or money), that suggests that your program isn't designed to "enhance the employability of the individual," as required by Md. Code, State Gov't § 20-610(a)(3)(i), but is instead a displacement of what could otherwise be regular employees. That's a big no-no.
Can interns file discrimination and/or harassment claims?
Absolutely. In 2015, Maryland's legislature amended its human relations article to specifically prohibit discrimination (either in hiring or in the terms and conditions of employment) and harassment based on the following protected classes:
race
color
religion
sex
age
national origin
marital status
sexual orientation
gender identity
disability
Md. Code, State Gov't § 20-610(b)(1-2). In addition to prohibitions on discrimination and harassment, the same article prohibits retaliation against interns or candidates who oppose unlawful discrimination. Id., at § 20-610(b)(3). In short, if you're going to accept internship applications, the same equal employment rules as for employee applicants should apply.
if you're going to accept internship applications, apply the same equal employment opportunity rules as you would for employees
Now, there is a significant limitation to employment-related claims by interns—no private right of action. While an employee could, following an administrative complaint to either the U.S. Equal Employment Opportunity Commission or the Maryland Commission on Civil Rights, file a lawsuit in either state or federal court, interns are generally limited to non-monetary administrative remedies. Md. Code, State Gov't § 20-610.
How can we avoid these issues?
We're glad you asked. Here are four things you can do to avoid intern legal drama this summer:
Have a written policy. Make sure the internship program's policies and procedures (i.e., duration, supervision) are in writing and available to both interns and supervisors.
Design the program for the intern's benefit. Focus on an internship program that provides experience-based education, not grunt work.
Obtain a written acknowledgement of non-payment. This is essential—have the intern sign a statement acknowledging that the internship is unpaid, and even better, identifying the educational experience and benefits they'll receive.
Don't promise employment. Make clear that the intern is not training to become an eventual employee; this could be used to support the finding of an employment relationship.
Lastly, you should always invest in the professional advice and counsel of one of Maryland's many excellent management-side employment lawyers when starting such a program. Contact us if you need a referral, and we'll tell you who we like on the other side of our cases (but don't tell them we said that).
Happy intern season, Maryland!
