Legislation to protect unpaid interns and volunteers from sexual harassment and discrimination in the workplace was signed by Gov. Jerry Brown last week, on Sept. 9, 2014. The bill, AB 1443, expands current protections against sexual harassment and discrimination for employees to unpaid interns and volunteers. The types of discrimination covered in the bill include race, gender, physical disability, sexual orientation and religious belief. Existing law protects employees from workplace discrimination, including sexual harassment, yet unpaid interns did not qualify as they technically did not count as employees.

Recent legal challenges to unpaid internships are generating greater scrutiny, and since unpaid internships are more common in nonprofits than other organizations, it’s worth a reminder that to avoid employee status, interns generally must be engaged primarily for educational purposes, rather than to assist the company they are interning for. If the intern is not deriving the primary benefit, then the intern must get paid.

The U.S. Department of Labor (and California) require that all six of the following criteria be satisfied for an individual to be deemed an intern and not an employee:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

Read more at http://www.dol.gov/whd/regs/compliance/whdfs71.htm