Coming soon: summer associates

It's the end of April and in the next month or so, many law firms and other legal employers such as corporate legal departments, public interest organizations, etc. (collectively referred to as firms), will bring in law students to work for the summer. These students (summer associates, summer clerks, summer interns, etc., collectively referred to as summer associates) will spend a couple of months working in a firm to gain practical experience. The firm generally evaluates the students to see if they might be a good fit for a full-time position after graduation. Many firms have social events, which are also evaluative. At some firms, especially larger law firms, the practical experience aspect takes a backseat to the social aspect. At other firms, summer associates get a lot of practical experience and fewer (or no) social events to attend.

Having these students working for the summer raises a few employment law issues that firms should keep in mind:

First, should you pay the summer associate? Some smaller firms and public interest organizations offer summer associates unpaid internships. That may or may not be proper. Both the U.S. Department of Labor and California's Department of Labor Standards Enforcement use a six-factor test to analyze whether or not an internship should be paid. The three key factors for summer law students are: (1) the training must be for the intern's benefit, not the employer's, (2) the employer cannot derive an immediate advantage from the intern's work and (3) the interns cannot displace regular employees but must work under their close supervision.

So if the summer associate drafts a memorandum that the employer sends to a client and that could have been drafted by a lawyer (a very typical summer associate work project), then the summer associate is unlikely to be an intern who doesn't need to be paid. In that scenario, the work was ultimately for the employer's benefit and could have been done by a regular lawyer-employee.

Second, if you are paying the student, is the student overtime-exempt? In California, lawyers who are licensed by the State Bar are overtime-exempt under the professional exemption presuming they earn a salary that is at least twice the minimum wage. Some lawyers may also meet the executive exemption (because they supervise others) and/or the administrative exemption (because of the amount of discretion and independent judgment they use in completing their work). Outside of California, things are easier — to be an overtime exempt professional under the Fair Labor Standards Act, a law student's summer job must require them to perform work that is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment. Even writing basic research memoranda tends to meet this requirement. Other jurisdictions are even easier — in Ontario, Canada, where I also practice, professional students are expressly included in the professional exemptions.

Here in California, law students are not yet licensed by the State Bar, so do not meet the professional exemption in California. Some firms and other legal employers treat summer associates as nonexempt for this reason and pay overtime if they work more than eight hours in a day; other firms do not because of the character of the work the summer associates perform — even drafting a research memorandum on a specific issue involves a certain amount of discretion and independent judgment.

Third, the social aspect of the summer associate experience can raise other issues, similar to those raised by firm holiday parties (a tip off to the subject of my upcoming December column.). If there are firm-sponsored summer student events that involve alcohol, then the firm may have social host liability for any alcohol-related injuries.

Fourth, I know many summer associates who ended up having intimate relationships with people at the firm they worked for. Sometimes it was with a fellow summer associate. But I know other summer associates who got involved with their firm's recruiting staff, with associates and with partners. This isn't a column meant to advise summer associates on stupid things to avoid during their summer at a firm (and if any summer associates are reading this, note my use of the word "stupid"). From an employment law standpoint, the latter three raise potential sexual harassment issues. Rather than discuss the specifics of any harassment issues raised (and in the 21st century, I hope the lawyers reading this don't need me to issue spot for them on this one), my practical advice for everyone is to just not go there. Careers can be ruined and fledgling careers can end or be derailed before they even begin if someone at a firm has an inappropriate relationship with a summer associate.

Fifth and finally, some firms make post-graduation job offers to most of their summer associates, some make few job offers and others know at the beginning of the summer that they are unlikely to hire any of their summer associates. Employers should be honest with their summer associates about the likelihood of a post-graduation offer. Not getting an offer is often viewed as a stigma and a sign that the student is flawed in some way. The reality may be that the student was smart and a hard worker but the fit was wrong or the firm just doesn't anticipate needing a junior associate when the student graduates. In that situation, consider providing a reference letter (usually anathema to an employment lawyer) or making what's called a "soft offer" (but perhaps better called an enigmatic offer) — an "offer" where the summer student can tell other firms that she has an offer from Firm X but it's understood between them that Firm X is unlikely to actually hire the student unless circumstances change.

Now what if the firm makes an offer and needs to revoke it, or realizes that the associate thought the firm's "soft offer" was a real offer? Check back next month for that discussion.

John Kloosterman is a shareholder with Littler Mendelson PC in San Francisco and Littler LLP in Toronto. FIRM ADVICE discusses labor and employment issues that affect law firms. It is not intended to be legal advice. The opinions stated herein are the author's and do not necessarily reflect the views of Littler Mendelson PC or Littler LLP. Email any topics you'd like addressed to jkloosterman@littler.com.