Friday, March 7, 2014
A new posting on SSRN on Designing Law School Externships that Comply with the FLSA should be of great interest not only to those of us tilling the employment law vinyard but to pretty much everyone else in legal education. From Niki Kuckes of Roger Williams, it deals with the recent DOL letter to the ABA on law student internships and the minimum wage question. Here's the abstract:
Recent debates over the best way to educate lawyers has led to an increasing focus on providing “experiential” education in law schools – and with it, a noted growth in law school externship programs. Externships provide a valuable way of giving law students real-life legal practice experience by allowing them to earn academic credit for training in a variety of actual legal settings, from prosecutors’ offices to corporate counsel departments. Because current ABA Standards for Law Schools do not permit students to be paid for activities for which they earn academic credit, law school externships are unpaid. This can raise questions under the Fair Labor Standards Act (“FLSA”), which bars covered employers from offering unpaid positions unless those positions qualify for one of the specific exceptions recognized by the Department of Labor from federal minimum wage and overtime requirements.
This issue was recently highlighted by an exchange of letters between the Department of Labor and the American Bar Association over law school externships. In September of 2013, the Department issued an opinion letter that approved as permissible the particular externship program posited by the ABA (in which unpaid law student externs at private law firms work exclusively on pro bono cases). Following this exchange, the broader question remains as to how to design an FLSA-compliant legal externship program, outside of this narrow setting.
This Article demonstrates that the interests of the law schools and the Department of Labor are in accord in this area, and that both seek to ensure – through the ABA Standards, on the law school side, and the FLSA, on the Labor Department’s side – that unpaid externships designed as training programs genuinely provide meaningful education and training for the law student externs who participate. By parsing the FLSA case law in this area and Department of Labor guidance statements, the Article derives a set of “best practices” for designing FLSA-compliant law school externship programs, highlights some pitfalls that may arise, and suggests specific steps to be taken both by law school externship program directors and host organizations who may participate in legal externship programs.
Hat tip to Mike Yelnosky for flagging this for us.