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- The 2013 ABA request and the DOL response were about one recurring legal question
- Federal wage law is usually the starting point for unpaid internship questions
- Volunteer work and unpaid internships are not the same concept under federal sources
- The DOL description of unpaid internships for for-profit employers uses a factors based analysis
- The DOL materials describe different treatment for many public sector and non-profit settings
- The ABA publications framed the issue around pro bono training and access to justice
- The 2013 DOL response described different outcomes for students and for recent graduates
- Whether someone is an employee can depend on how the work functions in practice
- State law can matter even when the FLSA is the main federal reference point
- Misunderstandings often happen when people mix volunteer language with for-profit work
- Common compliance pitfalls tend to come from mismatched expectations and program design
- How disputes are commonly evaluated is shaped by courts and published agency guidance
- Sources
Key Facts
- Federal level: The Fair Labor Standards Act defines “employ” broadly as including “to suffer or permit to work.”
- Federal level: The U.S. Department of Labor describes a “primary beneficiary” framework that courts use to evaluate whether an intern at a for-profit employer is an employee under the FLSA.
- Federal level: The Department of Labor notes that individuals generally cannot “volunteer” services to for-profit private-sector employers under the FLSA framework.
- Federal level: The Department of Labor states that unpaid internships in the public sector and for non-profit charitable organizations, where the intern volunteers without expectation of compensation, are generally permissible.
- Federal level: In 2013, the American Bar Association publicly reported that it asked the U.S. Department of Labor to clarify how the FLSA applies to unpaid pro bono internships involving law students and recent graduates.
- Federal level: In a 2013 response described by an ABA governmental affairs publication, the Department of Labor indicated that law students may be able to perform unpaid internships on pro bono matters at for-profit law firms when specific criteria are satisfied.
- Federal level: That same 2013 response described by the ABA also stated that recent law graduates who have not passed any state bar may not volunteer for private law firms to perform pro bono work without pay.
- State level: Separate state wage-and-hour laws may apply to internships and volunteer arrangements, and the details vary by state.
As of February 2026, this article reflects publicly available federal sources and ABA publications, and the legal landscape can change over time through new agency guidance and court decisions.
The 2013 ABA request and the DOL response were about one recurring legal question
In May 2013, the American Bar Association reported that it sought assurances from the U.S. Department of Labor about whether unpaid internships limited to pro bono matters could be treated as lawful under the Fair Labor Standards Act when hosted by for-profit law firms and corporate legal offices. Later in 2013, an ABA governmental affairs publication summarized a response from the Department of Labor’s Solicitor addressing when unpaid law student internships for pro bono matters may fit within the federal framework for unpaid internships and why recent graduates raised different concerns.
Federal wage law is usually the starting point for unpaid internship questions
At the federal level, the Fair Labor Standards Act uses a broad definition of “employ,” which is one reason unpaid work can raise minimum-wage and overtime issues in many settings. The statutory definition of “employ” appears in 29 U.S.C. § 203(g).
Volunteer work and unpaid internships are not the same concept under federal sources
Federal guidance commonly draws a line between “volunteering” and “unpaid internships,” especially where the host is a for-profit business. In Department of Labor materials, volunteer status is generally discussed in connection with public agencies and non-profit organizations serving public, charitable, civic, religious, or humanitarian purposes, while unpaid internships at for-profit entities are analyzed under a separate intern-focused framework that looks at the overall relationship.
The DOL description of unpaid internships for for-profit employers uses a factors based analysis
Department of Labor guidance explains that courts have used the “primary beneficiary test” to evaluate whether an intern or student working for a for-profit employer is an employee under the FLSA. Under that approach, the analysis is fact-specific and looks at the “economic reality” of the relationship, rather than relying on titles alone, and the Department of Labor describes several factors that courts have considered as part of that test.
The DOL materials describe different treatment for many public sector and non-profit settings
Unpaid internships and volunteer service can look similar on the surface, but federal materials often treat them differently depending on the type of host organization and the nature of the work. In its intern guidance, the Department of Labor notes that unpaid internships for public sector and non-profit charitable organizations, where the intern volunteers without expectation of compensation, are generally permissible, while also emphasizing that the FLSA still applies to many workers and settings.
The ABA publications framed the issue around pro bono training and access to justice
According to an ABA governmental affairs publication, the ABA’s 2013 request for clarification referenced law school accreditation standards that address student pro bono opportunities and described the educational purpose of student participation in pro bono programs. The ABA publication also described concerns that legal uncertainty could deter some organizations from offering supervised pro bono experiences to current law students.
The 2013 DOL response described different outcomes for students and for recent graduates
An ABA governmental affairs publication reported that the Department of Labor responded on September 12, 2013, stating that law students may work as unpaid interns on pro bono matters at for-profit law firms when certain criteria are met, and that the determination depends on the facts and circumstances. The same ABA publication reported that the Department of Labor also clarified that recent law school graduates who have not yet passed any state bar may not volunteer for private law firms to perform pro bono work without pay.
Whether someone is an employee can depend on how the work functions in practice
Even when an internship is labeled “pro bono” or “educational,” federal materials describe an analysis that focuses on what the person does, how the work is supervised, how the experience relates to education and training, and whether the arrangement resembles paid employment. That is why discussions about unpaid pro bono internships often focus on structure and reality rather than the good purpose of the work alone.
State law can matter even when the FLSA is the main federal reference point
Alongside federal law, state wage-and-hour rules, state agency interpretations, and other state-specific requirements can shape the legal risk around unpaid internships. The details vary by state, and the same internship structure can be treated differently depending on where the work occurs and which state statutes and regulations apply.
Misunderstandings often happen when people mix volunteer language with for-profit work
Confusion is common because “volunteer” is used loosely in everyday speech, including around pro bono service. In federal sources, that word often carries a narrower meaning, particularly when the host is a for-profit business, and unpaid work for a for-profit entity is more commonly discussed through the intern factors analysis instead.
Common compliance pitfalls tend to come from mismatched expectations and program design
How disputes are commonly evaluated is shaped by courts and published agency guidance
Department of Labor guidance explains that courts have used the primary beneficiary test in intern cases and that the inquiry is flexible and depends on the circumstances. In practice, published agency materials and court decisions can influence how organizations, schools, and interns understand risk, even though a final legal determination can depend on the full facts of a specific situation and the jurisdiction involved.
