Unpaid Internships: When are they legal and why are they a problem?

Unpaid internships are one of the most common, and I think worst, employment law abuses today. It is now normal for a young professional to begin his career working for free. Unpaid internships have become required in order to get a foot in the door of a whole host of industries and careers.

Illegal unpaid internships are harmful in at least two very important ways. Illegal unpaid internships displace paid workers. By definition (as discussed below) legal unpaid interns do not displace regular employees. The work they do can not provide any immediate benefit to the employer. Illegal interns are therefore performing work that would otherwise be paid for because they are displacing regular employees and/or providing work that is of an immediate benefit to the employer. If an employer is able to have useful tasks performed for free, why would they pay somebody? Second, illegal unpaid internships exacerbate economic inequality and hamper class mobility. Only young people from wealthy families can afford to work full-time for free. This is especially true in high cost cities like New York or San Francisco.

Unpaid internships have become a hot topic in the media. There have been high profile lawsuits in industries that are infamous for the prevalence of unpaid internships. The movie Black Swan was sued by unpaid interns claiming that their internships violated the Fair Labor Standards Act (FLSA). The plaintiffs claimed that on the set of Black Swan interns did menial work that should have been done by paid employees and did not provide them with the type of educational experience that labor rules require in order to exempt employers from paying interns. In addition to reporting lawsuits, there have been newspaper stories that examine how unpaid internships affect workers, the economy, and society.

The Department of Labor has identified six factors to examine when determining if an unpaid internship is legal under the Fair Labor Standards Act.

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.
(www.dol.gov/whd/regs/compliance/whdfs71.pdf)

An unpaid internship needs to meet all six of the factors to be legal. Many (if not most) unpaid internships fail to meet at least one of the factors. Most commonly, internships fail to provide “similar to training which would be given in an educational environment”. There aren’t many universities that offers majors in coffee making or photocopying.

Unpaid internships have become so prevalent that unpaid interns feel pressure to just accept the system. If you work in an unpaid internship it might seem not worth fighting for the money to which you are entitled. This is especially true when the internship is only for a short time and the intern really wants work in the particular field.

If you have worked an unpaid internship, particularly if it was for a long period of time or you worked a lot of hours, it might be worth speaking to an attorney. Unpaid interns may be owed at least the federal minimum wage for all hours worked and time and a half for all hours over 40 in a workweek.

Unpaid internships are bad for the intern, other workers, other young people trying to break into the industry, and society at large. Hopefully the Department of Labor and other federal and state agencies will provide support to people who want to fight back against the growth of unpaid internships in our modern post-industrial economy.er

For further information please contact Attorney Benjamin Kandy.

This is not legal advice. This page does not create an attorney-client relationship between the reader and Attorney Benjamin Kandy. Please see our disclaimer page.

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