Summer is upon us. For employers, that means so is the prospect of hiring summer interns. Hiring interns gives employers access to highly motivated, educated young workers who bring a fresh perspective to the office and (sometimes) have little to no expectation of pay in return. It seems like a win-win situation, but in recent years, the practice of hiring unpaid interns has become increasingly scrutinized by the Department of Labor. In fact, there have been several high-profile cases wherein unpaid interns have sued employers (including Conde Nast Publications, Sirius XM Radio, and Warner Music Group), alleging violations of the Fair Labor Standards Act (“FLSA”), which establishes minimum wage and overtime compensation requirements for non-exempt employees.

According to the National Association of Colleges and Employers Class of 2013 Student Survey, only 38.1 percent of unpaid internships worked by 2013 graduating seniors were conducted in the for-profit, private sector, which is governed by the federal Fair Labor Standards Act (“FLSA”) regulations. That is because internships in the “for-profit” private sector will most often be viewed as employment, unless six, specific criteria are met – rendering interns as employees and subject to certain protections.

If you are considering hiring unpaid interns, but want to avoid legal liability, take a moment to see if your internship program (and its interns) will meet each of the following:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and,
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If one of the above factors is not met, the intern must be paid minimum wage and overtime compensation for hours worked over forty in a workweek.

Before hiring an intern, be sure to develop an intern policy and define the job, duties, and expectations of the position carefully. Be sure to explain the compensation structure (or, alternatively, clearly express the internship is unpaid), eligibility requirements, and the intern’s status as an at-will employee.