Legal Recruitment Issues Q&A

Can career services pre-screen candidates for an employer? Can faculty pre-screen for an employer?
If career services or faculty pre-screen candidates, they are, in effect, acting as an employment agency, and the relevant laws that apply to an agency would apply to the career center or faculty member. Although federal anti-discrimination provisions typically apply only to "employers," many states have adopted similar provisions that encompass individual employees and third parties. These state law provisions often make it unlawful for any individual or entity to "aid or abet" discriminatory employment practices. Additionally, educational institutions that accept federal funding may run afoul of Title VI of the Civil Rights Act of 1964, as amended, and/or the Equal Protection Clause by implementing or endorsing discriminatory pre-screening practices.

Once career services staff or a faculty member participate in the selection process, they may have to justify the criteria upon which the screening was based, just like an employer or an employment agency. Problems occur when the criteria are facially discriminatory or have a discriminatory impact, such as when a career services office is asked to refer only minority students or a faculty member is asked to refer just female candidates. A career services staff member or faculty member could not defend the action by saying the employer "told me to do it." The less directly involved the career services staff and faculty are in making choices for employers, the less likely the staff and educational institution will become embroiled in administrative claims and litigation if a student believes that he or she was discriminated against as a result of not being selected to interview.

Are employers required to interview international students?
Employers are NOT required to interview an international student who has an F-1 or J-1 visa, even if the student is otherwise qualified for the job. Some employers may have set policies stating that they will not sponsor, and therefore will not interview, F-1 and J-1 students, even though those students may have Optional Practical Training (for F-1s) or academic training (for J-1s) allowing them to work temporarily after graduation. This type of policy is lawful, and an employer can freely state that it will not interview or sponsor students in F-1 or J-1 status.

Can employers limit their interviewing/hiring to U.S. citizens?
Although employers can refuse to interview or hire international students who do not already have some form of permanent work authorization, most cannot stipulate that U.S. citizenship is a job requirement. (Note that "work authorization" and "citizenship" are different things. A person can be authorized to work in the United States without holding citizenship.) As a general rule, an employer cannot legally limit job offers to "U.S. citizens only." An employer may require U.S. citizenship for a particular job only if U.S. citizenship is required to comply with a law, regulation, or executive order; is required by a federal, state, or local government contract; or the U.S. Attorney General determines that the citizenship requirement is essential for the employer to do business with an agency or department of the federal, state, or local government.

These exceptions are extremely limited in scope. An employer cannot simply impose a "citizens only" policy unless the job fits into one of the categories listed above. Even in those limited cases where "citizens only" may be allowed, the citizenship requirement must be related to a specific job that has been identified in the government contract, by law, or by the U.S. Attorney General. For example, an employer that is a U.S. Department of Defense contractor cannot require U.S. citizenship for all of its jobs relating to the contract if the contract identifies only certain jobs as requiring U.S. citizenship. Accordingly, employers should not ask a job applicant about his or her citizenship during a job interview, unless the employer is confident that the job falls into one of the lawful bases for requiring U.S.-citizen applicants only. The employer, however, can ask if the candidate is authorized to work in the United States, and on what basis.

Must interns be paid? Why should employers pay interns?
There are two issues: the legal requirements that dictate whether an intern must be paid, and the company's goals for its internship program, which dictate whether an intern should be paid. In terms of legal requirements, for-profit employers must clear a number of hurdles in order not to pay their interns. First, the nature of the relationship must be determined, if the individual is an "employee" pursuant to federal or state law, then pay is required. The Fair Labor Standards Act (FLSA) applies to all companies that have at least two employees directly engaged in interstate commerce and annual sales of at least $500,000. (Even if a company does not fall within those requirements, most states have wage payment laws that impose additional legal requirements on an organization. All organizations should check with their legal counsel to determine its requirements under the applicable state and federal laws). Under the FLSA, an "employee" is an individual employed by an employer. This somewhat circular definition is not overly instructive in defining an employment relationship. In an effort to clarify the issue of "employment" in the area of internships, the Department of Labor (DOL) set forth a "Six-Part Test" for interns in May of 2010.
Under the "Six-Part Test," an employer is not required to pay an intern if the following criteria are met:

  • The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in the educational environment;
  • The internship experience is for the benefit of the intern;
  • The intern does not displace regular employees;
  • The employer that provides the training derives no immediate advantage from the activities of the intern, and on occasion its operations may be impeded;
  • The intern is not necessarily entitled to a job at the conclusion of the internship; and
  • The employer and the intern understand that the intern is not entitled to wages.

Generally, the most difficult factor to establish is the fourth criterion—the employer derives no benefit from the student's activities. In several DOL opinion letters, the DOL has indicated that in situations where interns are responsible for providing a variety of tasks that were part of the normal operations of the organization, the interns would be considered employees under the FLSA. It should also be noted that the foregoing situation involved an internship program that was established solely by the employer without the involvement of the educational institution. It can be inferred that situations where an educational institution sponsors a program and provides academic credits may affect the DOL's determination

The DOL has stated that where the internships programs are designed to provide students with professional experience in the furtherance of their education and the training provided during the internship is academically oriented for the benefit of the students, the students will not be considered employees of the organization to which they are assigned, provided the six criteria are met. When students volunteer to perform internships under a college for-credit program that involves them in real-life situations providing educational experiences unobtainable in the classroom, an employment relationship may not exist between the student and the organization providing the instruction. Nevertheless, if an employer hires an intern merely to make coffee, answer phones, or run errands, it is unlikely they will meet the test for an "unpaid intern." An employer must focus on the productive work performed by the intern. If the productive work outweighs the training and supervision burden imposed on the employer, an employee/employer relationship may be present and an employer may be subject to liability under the FLSA.

If an intern is considered an employee by the FLSA, he or she is afforded all of the protections set forth under the statute, including the requirement to earn at least minimum wage and overtime for all hours worked in excess of forty in one work week.
Employers need to consult with their legal counsel to determine the nature of the relationship and whether compensation is required. However, to assist employers and colleges in addressing internships, NACE developed a position statement that 1) provides a definition of "intern" (which DOL has not done) and 2) sets out criteria that can be used to assess whether the internship should be paid.

The second issue—the organization's goals for its internship program—is also relevant to whether the intern is paid.
If an organization wants its internship program to feed its full-time hiring program and/or support talent development, then the organization will want to pay its interns, even if not legally required to do so. Why? An unpaid internship program automatically limits the pool of available interns to those who can afford to go the summer (or other time period) without a paying job. As a result, the employer does not attract the best candidates to its unpaid internship programs—just those who don't need the money.
Similarly, because the unpaid intern is legally limited in terms of job duties, organizations providing an unpaid experience can't provide the intern with meaty, substantial work that will develop his or her expertise. Consequently, the unpaid internship program's ability to feed full-time hiring and/or support young talent is limited.

Can a student or new graduate volunteer to work unpaid for an employer to gain experience?
In most instances, the answer is no. Although some pundits recommend "volunteering" with an organization to gain experience (and a foot in the door), for-profit organizations cannot have "volunteers" performing work. The U.S. Department of Labor defines a volunteer as an individual who provides service to a public agency for civic, charitable, or humanitarian reasons without promise or expectation of compensation for services rendered. For-profit organizations aren't "public agencies" and therefore cannot have volunteers perform work.

Source: National Association of Colleges and Employers, Current as of August 2012