- Posted by Paul Gowder on July 20th, 2008 filed in class, economics, injustice, law, politics, scene
- 20 Comments »
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:
- The training is similar to what would be given in a vocational school or academic educational instruction;
- The training is for the benefit of the trainees or students;
- The trainees or students do not displace regular employees, but work under their close observation;
- 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;
- The trainees or students are not necessarily entitled to a job at the conclusion of the training period; and
- 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.
* 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.
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.