On April 14, 2015, Maryland Gov. Larry Hogan (R) signed into law a measure that extends the applicability of the state's anti-discrimination laws to unpaid interns. The stated purpose of the law is to establish protections for interns and applicants for internships from discriminatory acts that are similar to those extended to regular paid employees. Maryland is following in the footsteps of states like New York, Oregon, and California that have already expanded such protection for interns.
The act provides that an employer may not fail or refuse to hire, discharge or otherwise discriminate against an individual with respect to the terms, conditions, or privileges of employment because of the individual’s race, color, religion, sex, age, national origin, marital status, sexual orientation, gender identity or disability that would not prohibit them from carrying out the terms of the internship. An employer also may not advertise for an internship in any way that gives a stated preference to one of the protected classes listed.
An advertisement may provide such information only if the protected status is a bona fide occupational qualification for the internship. An intern who has been aggrieved under the act must have access to any internal procedure established for regular employees and may file an administrative complaint with the Maryland Commission on Human Relations.
The act applies to interns who are unpaid. In order to qualify as an unpaid intern, the work performed must (1) supplement training given in an educational environment that may enhance the employability of the intern; (2) provide experience for the benefit of the intern; (3) not displace regular employees; and (4) is performed under the close supervision of existing staff.
The U.S. Department of Labor also has set forth requirements for unpaid interns under the Fair Labor Standards Act, which encompass the Maryland requirements and also add (1) that the intern is not necessarily entitled to a job at the conclusion of the internship and (2) that the employer and intern understand that the intern is not entitled to wages for the time spent in the internship. Each state has different requirements for when an intern can be unpaid, but most states do not yet extend anti-discrimination laws to unpaid interns.
It remains to be seen how the vast majority of jurisdictions and the federal government will approach the issue of unpaid interns being covered by anti-discrimination laws. As has been widely reported, unpaid internships, particularly in for profit companies, have come under attack for alleged wage and hour violations under federal and state laws. This has prompted many employers to end their internship programs or to pay their interns, which converts them to employees.