Television Commercial Exposes FLSA Problem

My first post on this blog addressed the legal hazards faced by companies when they make use of unpaid interns. In most cases, interns are actually employees and must be paid in accordance with the Fair Labor Standards Act. If you’d like to read the post again, you can find it here.

I hadn’t thought much about that particular post until last Friday morning. There I was, sipping my coffee watching the Today Show, when a commercial for one of those big-box office supply stores came on the tube. In it, a harried looking small-business woman described how, as a start-up, she could only afford to bring on two unpaid interns to help her run her company. My ears immediately perked up. Didn’t this woman realize she was violating FLSA? Hadn’t her lawyer advised her of the potential exposure she faced for not paying her employees? Shouldn’t she have delayed her launch until she secured another round of VC funding? But it got worse. By saving money at the particular store, the woman was able to grow her business to the point where she needed to bring on even more unpaid interns. By the end of the commercial, the screen was filled with smartly dressed young people working feverishly for the woman, all for no pay! As an employment lawyer, I was shocked. The woman was staring down the barrel of a certain class action.

Now, I’d like to think that the retailer in question complies with FLSA and doesn’t misuse its interns (to the extent it has any). And I’m pretty sure that neither it nor its advertising agency meant to convey the message that not paying your employees is an acceptable business practice. But, unfortunately, many people viewing that particular commercial are likely to come away with exactly that impression. With the Department of Labor cracking down on the (mis)use of interns and independent contractors, employers must be more cautious than ever of complying with wage and hour laws. Employers that are uncertain about whether their interns are actually employees should seek the advice of their employment counsel, post haste.

I’ve only seen the commercial that one time, and I can’t find it anywhere on the internet. I’m beginning to think maybe I was asleep and had one of those work-related dreams people sometimes have. If anyone else has seen the commercial, feel free to add a comment. I’d love to know that I didn’t imagine the whole thing.

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