It is important for people who fight unfair internships to create a network and support each other. This is why I have a Resources page that list the groups active in this field. And I just updated my Twitter list where there are now 16 accounts. You can follow the entire list at once by clicking the button at the top of the list. Post your suggestions in the comments below or tweet them to me @exintern.
As evidence that law firms are starting to see the issue for what it is, Yasinski & Jones, LLP in Los Angeles, California, recently set up a website, InternshipLaw.com, to reach out to employers and interns. We hereby give the floor to John Carrigan, employment attorney with the firm, who answered our questions.
What gave you the idea to focus on this issue?
Having worked at several unpaid internships while I was in college, the issue has been in the back of my mind for years. Also, I practice in Los Angeles, which is home to a lot of unpaid internships in what you might call “glamour” industries like entertainment, public relations and fashion. A lot of these employers are very clear about expecting interns to perform real, substantive work for no pay, but no one seems to do much about it. I saw that as an interesting niche area for my practice.
What do you bring to it?
What I hope to bring to the issue is an ability to see the issue from both sides of the table, with a focus on the realities of the workplace. For instance, I try to look not at what “opportunities” an internship might present, but at what the interns are actually doing during their workday. Oftentimes, that may be something else altogether.
Do you think that employers are generally aware that unpaid internships are often illegal?
In my experience, most employers who improperly utilize unpaid interns don’t realize that they’re violating any laws in doing so. Many employers (and interns) believe, incorrectly under U.S. and California law, that there’s no obligation to pay an intern so long as he or she receives academic credit. Some other employers believe, also incorrectly under U.S. and California law, that they can get around an obligation to pay simply by getting a signed acknowledgement from the intern that the position will be unpaid.
Why do you think that illegal internships are so common?
I think the biggest reason, at least in the U.S., would be that there’s been no real headline-grabbing case in which an employer was hit with substantial liability because they didn’t pay their interns. As a result, there’s a lack of familiarity with the law on both sides, and many interns have no idea they might even be entitled to pay, particularly where they’re receiving academic credit.
For those interns who do believe they’ve wrongly been denied pay, there is also the fear of retaliation. Interns tend to view their internships as a door into full-time employment in their chosen field, and a lot of them believe that filing any wage claim, or even simply asking to be paid, would mean they’d be somehow blackballed from an entire industry. Personally, I think that fear is vastly overstated.
Is it difficult for you to convince employers that their internship program may be illegal?
Rather than describing a program as “illegal,” I’d be more likely just to explain that, based on the program as it is currently structured, there is a legal obligation to pay the interns. Under both U.S. and California law, in order for an internship for a for-profit employer to be unpaid, the employer has to satisfy six specific criteria, one of which is that the employer does not receive any “immediate advantage” from the interns’ work. Frankly, it is very rare that an intern’s work would not provide such an advantage to a for-profit employer, and most employers understand this once they take a look at the decisions interpreting the law.
Do you find that the courts understand the issue?
I think that they would, but very few of these cases go all the way to trial. Instead, the vast majority of wage claims are resolved out of court, generally for amounts that are kept confidential.
Any interesting cases that you could share?
An opinion came out in California last year [NDLR: see LACBA, July-August 2011 (PDF)] regarding an internship program organized by a non-profit group called Year-Up, Inc.. Year-Up placed interns in short-term positions with for-profit employers as part of a curriculum meant to provide the interns with technical skills. Although the interns were not paid a minimum wage, the employers actually paid more than $22,000 per intern to Year-Up to sponsor the program. The opinion concluded that interns involved in that program did not have to be paid because each of the six factors had been satisfied, but its discussion highlights just how many hoops a California employer must jump through in order to lawfully utilize unpaid interns. As a result, from an employer’s perspective, it will often be more efficient just to pay interns the minimum wage rather than go through the hassle of establishing an unpaid internship program that complies with the law.
Another lawyer looks at internships. You know what’s coming:
Probably the most important lesson to be taken away is that the temptation to have an intern open or deliver the mail, help with the filing, answer the telephones or run menial errands should be accompanied with a paycheck.
The last and only time we mentioned the European Quality Charter on Internships was in December… 2007. It was promised for 2008. Not surprisingly perhaps, it is still nowhere to be seen, but a symbolic milestone was crossed this month when members of the European Parliament (a deliberative body with mild powers but the weight of democratic legitimacy for the European Union) reminded the Council (executive branch) and Commission (executive branch too!) of their promise. This should put to rest the idea that it is an Anglo-American problem:
“Traineeships are part of education and must not replace real jobs,” insisted Turunen, stressing that it was high time for the Commission to act.
The idea of a charter was triggered by youth organisations, which see a worrying trend developing in the midst of the crisis, whereby employers are hiring trainees to reduce costs.
The practice of recruiting interns instead of employees, without labour law protection and often with no or very limited financial compensation, limits young people’s chances of being fully integrated into society, said YFJ Secretary-General Giuseppe Porcaro.
“Especially in times of crisis, the lack of legal requirements or clear quality guidelines and educational schemes may lead to exploitation and precariousness that is undermining the main aim of the internships: to be an educational experience,” Porcaro added.
Even the original resolution describes the problem:
C. whereas employers seem to be using traineeships and internships more frequently to replace regular employment, thereby exploiting the obstacles to entering the labour market faced by young people; whereas such forms of exploitation of young people need to be addressed and effectively eradicated by Member States
And here’s what the MEPs are asking:
21. Calls for better and secured internships; calls on the Commission and the Council, following the commitment given in Communication COM(2007)0498 “to propose an initiative for a European quality charter on internships”, to set up a European Quality Charter on Internships setting out minimum standards for internships to ensure their educational value and avoid exploitation, taking into account that internships form part of education and must not replace actual jobs. These minimum standards should include an outline of the job description or qualifications to be acquired, a time limit on internships, a minimum allowance based on standard-of-living costs in the place where the internship is performed that comply with national traditions, insurance in the area of their work, social security benefits in line with local standards and a clear connection to the educational programme in question;
Most interestingly, they also ask the Commission to track statistics on internships. That’d be nice.
See you in two years and a half for another walk in the courtyard, European Charter!
The New York Times published an important article about unfair internships last week-end. Important because it takes the right perspective – they are likely illegal and unfair – and because this paper is influential (just look at some immediate coverage). Important also because the public is eager to hear about this issue, as evidenced by the 2nd position in the list of the most emailed articles today – two days after it was published – and most emailed for the business section.
So, what’s in there? Mostly, some enlightenment from the mainstream media that millions of people are being exploited in the workplace. Good for the NYT. But what’s most interesting is the section about the Labor Departments finally taking action, at the state and federal levels.
The Labor Department says it is cracking down on firms that fail to pay interns properly and expanding efforts to educate companies, colleges and students on the law regarding internships.
About time. We will cover some of these cases soon. Also, there are some interesting statistics.
In 2008, the National Association of Colleges and Employers found that 83 percent of graduating students had held internships, up from 9 percent in 1992. This means hundreds of thousands of students hold internships each year; some experts estimate that one-fourth to one-half are unpaid.
It’s really too bad that it ends with the vague “some experts”. I’m not asking for a private eye report nor an academic quote, but the NYT ought to source better its statistics.
We speak often about the role of regulators, employers and interns to end this practice, but those who publicize internships – legitimizing the postings and increasing competition among interns for a given position, among other things – also have a constructive role to play. While some listing websites take a hands-off approach, washing their hands from their role for promoting an illegal and unfair practice, but others are not so shy.
“A few famous banks have called and said, ‘We’d like to do this,’ ” Ms. Steinfeld said. “I said, ‘No way. You will not list on this campus.’ ”
Sometimes, it’s so obvious that an employer is trying to take advantage of the system, one ought to refuse the listing. Actually, any listing website should commit to apply the FLSA rules, if only to remain legal.
The story also quotes a business lawyer that pleads in favor of her clients:
Camille A. Olson, a lawyer based in Chicago who represents many employers, said: “One criterion that is hard to meet and needs updating is that the intern not perform any work to the immediate advantage of the employer. In my experience, many employers agreed to hire interns because there is very strong mutual advantage to both the worker and the employer. There should be a mutual benefit test.”
Mutually beneficial arrangements are not illegal at all, they are even encouraged. They are called “jobs” and the are usually paid a legal wage. If the intern is “beneficial” to the company,it means that they are profitable and hence they are entitled to a paycheck. This is certainly not an age-old principle that we want to overturn.
The New York Times had an article about unfair internships yesterday (Growth of Unpaid Internships May be Illegal, Officials Said) and suddenly the media realizes that it exists. Not that it’s all original and articulated reporting, but still, it’s a little jolt, a minute of attention for such a widespread illegal practice.
“If you’re an unpaid intern or the employer of an unpaid intern, don’t be surprised if you hear from the Labor Department soon.” Labor Department to Rescue College Kids From Illegal Unpaid Internships, New York Magazine
Let’s hope so.
“I’m alarmed about the increasing number of unpaid internships. Unless an internship is with a nonprofit organization or qualifies for at least three college credits, all interns should be paid. ” Tough Choices: Paid, Unpaid or Purchased Internships, Chicago Blog
Not so sure about the credit solution, but well-intentioned. It’s not about being credited, it’s about being a trainee.
“Have you had an unpaid internship? Did it break the laws outlined in the article? Should the Department of Labor continue to crack down on unpaid internships and will this make finding summer work harder?” Unpaid Volunteer Interns of the World Unite?, The Daily Princetonian
I really wish the student newspapers would do more to cover this issue than link to the occasional and rare NYT article.
“Wealthy corporations and organizations take advantage of the highly competitive job market, which now resembles a pack of lions fighting over the carcass of a wildebeest, and exploit the fears and ambitions of college students and recent grads to create a slave labor situation that not only betrays the foundational spirit of internships, but may also violates labor laws.” Battle to end slave-internships more important than it seems, True/Slant
This is a nice explanation for those who think that unfair internships are “voluntary”.
“The New York Times reported Saturday Oregon, California and New York are among those states where investigations have been launched.” Business News: Unpaid internships under scrutiny, UPI.com
No new reporting other than quoting “the Times said”. Their tag line: “100 years of quality journalism”…
“One of the most despicable sides to these false no-/hypolow – pay “internships” is that the colleges and universities are colluding in it. Nay, even pushing and promoting it.” Commenter on Students Said to Be Among Victims of Boom in Unpaid Internships, The Chronicle of Higher Education.
Speaking of, shouldn’t they be covering this issue more than the NYT?
“Check out the largest (and often, smallest) radio station groups. As an executive, I was told to hire new intern(s), and use them for as long as possible. I was then told to let them go, and never offer a job, asa the position would then be filled by the next intern. Totally free labor, and more money to be enjoyed by the ownership. By the way, I didn’t comply, and had to resign to maintain a measure of dignity. This policy is probably marginally legal, but highly unethical. Another of the many problems with broadcast media across the nation.” Commenter on Crackdown on Illegal Internships, from The Daily Beast
Thank God for the commenters because the Daily Beast did nothing but quote the Times. Same thing at the Huffington Post.
Now let’s see: how long will it last? Let’s hope that this week-end coverage will not be seen as the gollden age of media coverage of unfair internships, but the beginning of a movement.
Updated, because it’s too funny.
Today, the Trades Union Congress (TUC) is launching a website called “Right for interns“.
This Rights for Interns website provides information and advice on the rights interns should expect, allows them to share their experiences and explains the benefits of joining a union.
It is about time that a union make a systematic effort to reach out to interns. They seem to understand that:
There’s a real head of steam on this issue now. Some might argue this is well overdue. There’s still a mindset out there that thinks that interns working for free is just a normal part of working life. We need to work together to change this.
It is in the interest of the unions since their next generation of members is facing this problem. Its source is also the same that lead to the creation of unions: a collective action problem. Interns have no bargaining power as their are competing against each other. This experience can teach them the value of collective bargaining.
The website has a neat section on the rights of interns that explains why the title “intern” does not allow to underpay an employee. And they have a sort of survey, for which I hope that they will release some data later – go fill it if you’re in the UK.
Welcome to the fight, TUC.