FACT SITUATION:

You are the Director of Human Resources for Lord and Taylor Department Stores in the New York metropolitan area----New York City, Nassau County, Suffolk County, and Westchester County. It has been a long-standing policy of the company to have student interns work in various departments. The company considers this part of community service and also uses the Intern Program as a way to identify and recruit new employees.

Alexandra Cortez is a student at Lehman College working towards a BBA degree with a concentration in marketing. Her goal is to work in the retail industry upon graduation. Ms. Cortez was enrolled in the BBA 370 course, Internship in Business, in the fall 2020 semester. For her internship, Ms. Cortez was assigned to work in the Lord and Taylor Marketing Department and she was thrilled. The Director of Marketing, Wanda Cummings, told Ms. Cortez that she would be shadowing her for the twenty hours (20) per week that Ms. Cortez would be at the work site. Before beginning the internship, the Human Resources Department provided Ms. Cortez with the Guidelines for Interns. The Guidelines explained that interns are not employees and the purpose of the internship program is to provide a practical educational experience. The Guidelines ended by stating that interns should contact the Human Resources Department with any questions or concerns about the program or their internship responsibilities.

Ms. Cortez began the internship on September 3, 2020 and, as promised, she attended meetings with Ms. Cummins and worked with her on specific marketing projects. Ms. Cortez was very excited and saw the possibility of a job with Lord and Taylor when she graduates in May 2021.

The first week in October 2020, Ms. Cummins' administrative assistant announced that she is pregnant and expected to deliver her child in March, 2021. The pregnancy has proved to be a difficult one and the administrative assistant has fallen behind in her work. Over time, Ms. Cummins has been assigning Ms. Cortez work that would normally be handled by the administrative assistant. As a result, Ms. Cortez has been attending less meetings with Ms. Cummins and doing more administrative work----scheduling meetings, writing and responding to emails, writing memos for the staff, etc.----than marketing. Ms. Cortez has raised the issue of her assignments with Ms. Cummins but her response is that knowing how the office works is essential to understanding all aspects of the Marketing Department.

At the end of the fall semester, Ms. Cumming asked Ms. Cortez to continue her internship through the spring semester. She explained that Ms. Cortez has learned and grown in the time she has been with the Marketing Department and the additional time would give Ms. Cortez almost a year of experience. Ms. Cummins also said that Ms. Cortez has a bright future in retail marketing and hinted about the possibility of a position with Lord and Taylor when she graduates.

When the fall semester ended, Ms. Cortez continued to work twenty (20) hours per week. She is interested in working through the spring 2021 semester and the possibility of a full time job. However, she is concerned that Ms. Cummins really wants her to assume more of the job duties when the administrative assistant goes on parental leave in March.

Ms. Cortez is hesitant to raise the issue of her duties. Out of frustration, Ms. Cortez has come to the Human Resources Department to seek guidance. She has asked that her concerns be kept confidential and she would like to continue with the internship. However, Ms. Cortez feels that if she is replacing the administrative assistant then she should be treated as a part time employee, with a salary and benefits.

Based the facts above and the guidance from the United States and New York State Departments of Labor, apply the IRAC structure to analyze whether Ms. Cortez is an employee or an intern. The analysis should present the position of both the employer and the intern. The conclusion should provide a short summary of both positions and present a solution.

ISSUE: Is Alexandra Cortez a student intern or an employee?

NEW YORK STATE TEST FOR UNPAID INTERNS RULES

1. The training, even though it includes actual operation of the employer's facility, is similar to training provided in an educational program.

2. The training is for the benefit of the intern.

3. The intern does not displace regular employees, and works under close supervision.

4. The activities of the trainees or students do not provide an immediate advantage to the employer. On occasion, operations may actually be impeded. 5. The trainees or students are not necessarily entitled to a job at the conclusion of the training period and are free to take jobs elsewhere in the same field.

6. The trainees or students are notified, in writing, that they will not receive any wages and are not considered employees for minimum wage purposes.

7. Any clinical training is performed under the supervision and direction of people who are knowledgeable and experienced in the activity.

8. The trainees or students do not receive employee benefits.

9. The training is general, and qualifies trainees or students to work in any similar business. It is not designed specifically for a job with the employer that offers the program.

10. The screening process for the internship program is not the same as for employment, and does not appear to be for that purpose. The screening only uses criteria relevant for admission to an independent educational program.

11. Advertisements, postings, or solicitations for the program clearly discuss education or training, rather than employment, although employers may indicate that qualified graduates may be considered for employment.

FEDERAL TEST FOR UNPAID INTERNS RULES

1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation.

2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands on training provided by educational institutions.

3. The extent to which the internship is tied to the intern's formal educational program by integrated coursework or the receipt of academic credit 4. The extent to which the internship accommodates the intern's academic commitments by corresponding to the academic calendar.

5. The extent to which the internship's duration is limited to the period in which the internship provides the intern with beneficial learning.

6. The extent to which the intern's work compliments, rather than displaces, the work of paid employees while providing a significant educational benefit to the intern.

7. The extent to which the intern and employer understand the internship is conducted without entitlement to a paid job at the conclusion of the internship.

ANALYSIS:

To present the Intern's position, provide the part of the Rule (the minimum wage tests) that apply to the intern's position. Then explain how the facts apply to the criteria in each test. If a criterion in the federal and state tests are the same or similar, those criteria can be discussed together.

To present Simone's position, provide the part of the Rule (the minimum wage tests) that apply to the company's position. Then explain how the facts apply to the criteria in each test. If a criterion in the federal and state tests are the same or similar, those criteria can be discussed together.

CONCLUSION:

Provide a short summary of the main points for the intern and for the company.

Explain your conclusion as to whether the intern is an employee and therefore entitled to minimum wage and overtime pay.

There is no right or wrong conclusion. The conclusion depends on how you apply the facts to the rule and the explanation of the rule provided in the US and NYS Department of Labor Facts Sheets.