Internships: massive FLSA violations?

I’ve complained before about the gross injustice of making many jobs conditional on a long period of unpaid internships. The short version is that they shift the costs of on-the-job training that have always been borne by employers onto employees, and do so in a terrible fashion — there are ordinarily no “student loans” for unpaid internships, no pell grants for low-income interns* — either you can afford to work for free, or you can’t. This is a disaster for the economic mobility on which the U.S.** prides itself: as this trend increases, whole careers will become entirely closed off to the poor.***

It may also be illegal. The Department of Labor says the following about unpaid internships and FLSA:

The FLSA provides minimum wage and overtime protection to those employed within the meaning of the Act. FLSA section 3(g) states that to “employ” means to “suffer or permit to work.” The Supreme Court in Walling v. Portland Terminal Co., 330 U.S. 148, 152 (1947), observed that this definition “was obviously not intended to stamp all persons as employees who, without any express or implied compensation agreement, might work for their own advantage on the premises of another.” Based on Portland Terminal, the Wage and Hour Division (WHD) has developed six factors to evaluate whether a trainee, intern, extern, apprentice, graduate assistant, or similar individual is to be considered an employee. If all of the following six factors are met, then an employment relationship does not exist:

  1. The training is similar to what would be given in a vocational school or academic educational instruction;
  2. The training is for the benefit of the trainees or students;
  3. The trainees or students do not displace regular employees, but work under their close observation;
  4. The employer that provides the training derives no immediate advantage from the activities of the trainees or students, and on occasion the employer’s operations may actually be impeded;
  5. The trainees or students are not necessarily entitled to a job at the conclusion of the training period; and
  6. The employer and the trainees or students understand that the trainees or students are not entitled to wages for the time spent in training.

See Wage and Hour Opinion Letter May 17, 2004; Field Operations Handbook § 10b11 (copies enclosed). In the typical externship or internship program, where the work activities are simply an extension of the student’s academic program, these factors often are met and an employer-employee relationship does not exist. If no employment relationship exists, the provisions of the FLSA do not apply.

Note that the DoL explicitly says that all of those standards must be met — it’s not, as Miram Cherry suggested in a post questioning the legality of for-profit law firm “internships,” a mere list of factors which (impliedly) could be balanced against one another. It’s not a matter of things “cutting against” one another, that is. It’s a series of requirements, all of which must be met.

Now consider the following advertisements for unpaid interns in the NYC media industry:

“amNewYork is looking for journalism students for fall internships. Applicants will be required to write both news and feature stories, copy edit and do fact checking. This is an unpaid internship…”

“We are looking for interns to help us with the daily publishing duties associated with ForbesAutos.com. This includes writing and reporting, web production, article research, fact-checking, and proofreading. Ideally, applicants should have an interest in new media, and we are looking for someone with a fine eye for detail along with a solid foundation in writing. Since we are a car website, knowing the difference between a Porsche 911 GT2 and Porsche 911 GT3 is also a plus, but not required. This is an unpaid internship, and we’d like someone who can come in at” least two days a week for a few hours, or possibly the whole workday.”

“Men’s Vogue is looking for an editorial intern for the spring semester. The internship must count for credit, and interns would be asked to work 2 full days a week. Internship opportunities and responsibilities include: writing original content for our website; scouting theater, music, film, art, and book releases; researching potential story ideas for editors; and some administrative tasks.”

Now look at standards ##1-4 again. Particularly, look at #4. Can anyone say in good faith that interns who actually write content for magazines, or do factchecking, copyediting, or “some administrative tasks” aren’t directly contributing to the bottom line of the business?

This seems very likely to be a sign of widespread illegality.

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* There are starting to become exceptions to this: some colleges, realizing their low-income students are being totally screwed in the employment market, are starting to give financial aid for these internships. Read that story — it has lots of other juicy facts about how internships are going to the rich and connected.

** Nor is this just a US thing.

Unpaid interns in the US haven’t tested the law recently, but last April in Germany unpaid interns organized a large-scale demonstration and an online petition calling for an end to unpaid internships. The German government posted the 40,000 signatures on its website, and Germany’s Labor Minister at the time, Franz Müntefering, publicly condemned unpaid internships. The protests prompted the creation of Fair Company, an alliance of organizations that have committed to paying interns reasonable wages.

U.S. students ought to organize too.

***I am starting to suspect, actually, that much of the reason that we see all these horrible obnoxious people infecting the NYC “literary” scene (cf. previous posts, or anything on Gawker) is that the only people who can make the massive investments necessary to get in that scene — whether it’s starting one’s own gossip blog (which requires getting into the parties, which doubtless requires prada clothing and a coke connection) or slaving away at editorial internships forever — are spoiled rich brats.

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20 Responses to “Internships: massive FLSA violations?”

  1. Jason Wojciechowski Says:

    The Dartmouth program is fine, but it suffers from the same problems the “no tuition” program at the Ivies do: increasingly, there aren’t any poor students who can get into these schools in the first place. (“Poor” may not be the word given the dollar amounts on these programs — having grown up in working class surroundings and taught for a brief time in a poor neighborhood (where two-parent families are the exception), I don’t have so much sympathy for those “poor” families only bringing home 75k.)

  2. Jason Wojciechowski Says:

    And now I suppose you’ve already seen this: http://stuffwhitepeoplelike.com/2008/07/20/104-unpaid-internships/

  3. Paul Gowder Says:

    Oh that’s fabulous.

  4. J.R. Benedict Says:

    My understanding is that the for credit provisions as seen in one of those ads above allow for an exception from the usual rules. That’s why reputable companies will often advertise that their positions are only for interns getting academic credit.

  5. Paul Gowder Says:

    If that’s true, I’d like to see a cite for it — it doesn’t seem to be reflected in the Department of Labor opinions I’ve seen, but it’s possible.

  6. David Yamada Says:

    I’m delighted to see this problem getting some attention! the unpaid intern practice is a silent scandal.

    I explored some of the legal issues in depth in David C. Yamada, The Employment Law Rights of Student Interns, 35 Connecticut Law Review 215 (2002).

    David Yamada
    Professor of Law
    Suffolk University Law School

  7. Paul Gowder Says:

    Thanks David — I’ll look at the article. Do you know if this has been litigated in the U.S.?

  8. David Yamada Says:

    Paul, other than a few Department of Labor opinion letters, there was very, very little directly addressing student interns under minimum wage laws. However, there was a 2nd Circuit federal court of appeals case in which the court held that a work-study student intern who was subjected to terrible sexual harassment could not sue under the Civil Rights Act because she was not an “employee” under the statute.

  9. Uncommon Priors » How interesting… Says:

    [...] This is heartening. I’m glad people are thinking hard about whether they’re getting screwed by unpaid internships and considering the legal issues. [...]

  10. Uncommon Priors » Roundup of being in a good mood. Also TK/B/B revised: Happy Nice Bureaucrat Edition Says:

    [...] Slightly old now, Phoebe chimes in on the chorus of people, including myself, objecting to the obscene exploitation of unpaid internships. see [...]

  11. ExIntern Says:

    Of course they are illegal. And yes, it is a scandal. You are right to say that all criteria of the FLSA should be respected and not balanced against one another. Since the law exists, we need to drum up the public opinion and the awareness of the potential interns. Kudos for addressing the issue here.

  12. Uncommon Priors » Evidence for the claims made in the previous post. Says:

    [...] dollars to secure the internships that smooth their way into careers. I have posted earlier about how horribly regressive and anti-social mobility unpaid internships are (in addition to the fact that they probably violate the Fair Labor Standards Act), but the notion [...]

  13. John Galt Says:

    Choosing what you want to do with your body is the ultimate freedom. Unpaid interns receive experience that makes them more competitive than their peers, and in reutrn have higher starting salaries. Over time they reveice more than just compensation because of this experience. Unpaid interns work for their own selfish benefit, real work experience, and not allowing this would mean that in effect all students in all schools be paid a minimum wage for home-work.

  14. John Galt Says:

    Oh, and you all are the deepest red a communist can be.

  15. Paul Gowder Says:

    Good parody of the kind of simplistic Posner-style thinking that gives libertarians and Randites a bad name. I know it must be a parody, because someone intelligent enough to find this blog would at least contemplate the fact that this “advantage” is only available to those who are wealthy enough to work for free, or, for that matter, the moral difference between work that benefits only oneself (homework) and work that benefits someone else (the sort of work interns do). Let alone more sophisticated economic arguments about the way that eliminating one really bad option in a labor market sometimes has beneficial effects over a much broader set of actions. (This last remark is a bit vague, I know, but there are a bunch of papers about the way the ability to sign indenture/voluntary slavery contracts — which your argument entails that we should permit! — distorts labor markets. I’m writing this from my phone so I can’t look it up, but google scholar should get you there. Similar arguments could probably be made for the minimum wage law you seem to want to abolish.)

    Thanks for the comment Comrade.

  16. eric Says:

    “Unpaid interns receive experience that makes them more competitive than their peers, and in reutrn have higher starting salaries. Over time they reveice more than just compensation because of this experience.”

    Any, ummm, you know, evidence to back this up? Or should we just take it on faith?

  17. Uncommon Priors » John Holbo puts the entire blogosphere in a nutshell. Says:

    [...] Quite. [...]

  18. Sarah Says:

    Dear Paul,
    I came across this article while searching for information on the topic after my partner, one of three employees at a non-profit with many volunteers, had spent a frustrating day reading on Craigslist about unpaid positions doing art handling, painting, administrative work, and even *flyering!*

    In the context of the economic crisis and the lack of a social safety net, more people of all ages and levels of work experience are being pushed into no-pay or low-pay jobs that would have paid well in previous years. It does indeed seem that organizing is the only way out: Otherwise, peoples’ desperation to stay active and accumulate “experience” and connections will allow for-profit companies an non-profits alike to perpetuate this situation to their own advantage. In the case of for-profits, this should just stop, while non-profits should demand more state aid rather than solving their financial difficulties on the backs of the unemployed.

    I was also really appreciate your take on the elitism of the internship system. I went to Yale on almost a full scholarship, and came back every fall to hear stories of my fellow students’ experiences interning in high-profile places, studying abroad, and so forth. I and my fellow financial aid students graduated, on the other hand, with strong food-service and catering resumés.

    Thanks!

  19. ANetliner Says:

    I worked as an unpaid intern by choice during my high school and college years. In one instance, I received extensive academic credit for a full-time internship. The experience was outstanding and helped me academically, in acquiring workplace skills, and in applying to graduate school. Never did I feel exploited, as the internships helped me to acquire skills that I found desirable– as did subsequent academic programs and employers.

    I agree that it would be terrific if internships could be awarded as paid positions for high school and college students of less affluent
    backgrounds, or if high schools and colleges provided scholarships to
    permit these students to participate in unpaid internships. In short, it makes more sense to make internships more available, rather than to eliminate or restrict internship opportunities.

    A few tips for not exploiting unpaid (or paid) interns:
    –Give interesting assignments (not photo-copying or errand-running).
    –Supervise the intern’s work carefully.
    –Be available to the intern as a mentor.
    –Reward good work with letters of reference and/or recommendations to future employers or for academic admissions.

    Factors that need to be acknowleged are that a student intern is generally less mature, accomplished and reliable than older, full-time employees. If the student is receiving good professional training and mentoring, I see no problem with the student providing services for little or no remuneration. Again, I do agree that it would be helpful for students from poorer families to receive scholarships or paid internships that would allow them to participate in internship programs.

  20. heeso Says:

    Hi there, I seen your blog via Google while looking for first aid for a heart attack and your post looks very interesting for me.

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