If You Must Hire An Unpaid Intern, Here’s a Contract for That

For many law students, the summer of 2021 has proved challenging.  With the pandemic grip still tight back in the fall of 2020, many firms cut back or cancelled summer programs entirely to avoid another awkward summer of remote work.  Meanwhile, as placement offices failed to get their act together when law schools opened virtually, many students missed out on the narrow window to apply for jobs and were left in the lurch.

As a result, the Summer of 2021 has turned into the Summer of Scrambling with law students trying to find any job they can.  Services like Giglaw and Law Student Connect are the heroes in all of this (more so than law schools and many bar associations) by providing platforms that match law students with paying gigs.  But the placements are often short-term and don’t always offer sufficient experience to build a resume.

Which leaves law students starving for experience with one option: the unpaid internship.  

Now, many of the prestigious resume-builder jobs in legal – like public defender or attorney general offices, judicial clerkship and non-profits — have always, rightly or wrongly been unpaid.  But unpaid legal internships are less common for private practice, where both biglaw and some inhouse positions handsomely compensate summer associates.  Many small firms, however, can’t compete and some operate so close to the edge that hiring is feasible only if there’s no price tag attached.

Still, many solos and small firms shy away from unpaid internships for fear that they are illegal. But like most things that lawyers assume they can’t do because of some blowhard naysayer on a listserve (I remember when folks argued that blogs were unethical), unpaid internships are permissible if you follow the rules.  Here, the Department of Labor (DOL) has established a flexible, seven-part test known as the Primary Beneficiary Rule which defines whether the intern is the primary beneficiary of the unpaid position. If so, non-compensation is cool.  But if the employer is the primary beneficiary, it must compensate the intern the minimum wage.

So how does this all boil down for lawyers who want to hire unpaid interns? It’s really just a matter of common sense.  An internship that consists of a summer clerk scanning documents and fetching lunch for attorneys likely wouldn’t qualify for unpaid status (though there’s plenty law students can learn from helping to digitize and automate a practice and dealing with hangry lawyers whose lunch arrives 10 minutes late). By contrast, a summer internship consisting of legal research, assisting with client interviews and discovery responses, court-watching, writing blog posts, accompanying staff to a CLE and receiving feedback on written work that can be used as a future writing sample would satisfy DOL’s test.  And an unpaid internship doesn’t have to stay that way. Perhaps you can task a law student to work on a guide or program that will generate income, and pay a bonus at the end of the summer.

If you do decide to hire an unpaid intern, how can you prove whether you’ve complied with the DOL rule?  Guess what – there’s a contract for that – and it’s one of the 30+ template agreements that you’ll find in our Legal ClauseIt.  But to celebrate the start of summer, you can download an editable version of an Unpaid Summer Intern Agreement free.  And if you found this useful, you can still purchase the Legal ClauseIt: Plug and Play Power Pacts for Modern Law Firms for just $127 this week only.  

If law firms have the means, they should pay summer law clerks.  So should any legal employer, nonprofits and government included. But if you want to help a law student (or an older lawyer returning to the workforce for that matter) find valuable experience and the only way to swing it is through an unpaid internship, it’s better than nothing at all.

Leave a Comment