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.
I’m yet to read an article that quotes a lawyer saying that unfair internships are legal. The bottom line is always the same as in this article from the OregonLive:
“An internship, to be unpaid and legal, needs primarily to be a learning experience for the intern and not something where the intern is expected to produce work product that is going to benefit the employer.”
There are some good news for the interns:
“All it takes is one disgruntled intern, or their parent or spouse or friend, to call the U.S. Department of Labor, and the company who follows this type of exploitative advice is toast,” he said. “The government is becoming increasingly aggressive in hunting down these situations.”
The article gives a very useful resource to denounce unfair internships:
The Labor Department takes complaints on the Web, in local district offices, and through the toll-free number 1-866-4-USWAGE. Officials will investigate whether internships violate wage and hour laws or other labor laws.
And a good reminder to all those who think they may just try anyway:
The bottom line: You can’t just call people interns to avoid paying them, said Rosemary Gousman, a Murray Hill, N.J.-based regional managing partner at Fisher and Phillips, a labor law firm.
It’s also worth quoting the opening paragraph of the article, a good summary of why students often fall for unfair internships:
Summer interns are ripe for exploitation. They’re desperate for real-life experience to help them land a permanent job, at a time when the economy is slowing and positions are scarce. Many are willing to work for free or below-market rates just to get a foot in the door.
Students in Ontario may wat to take note of the program ACCELERATE where the provincial government provides CAD $16.89 millions over 4 years. Each internship will last 4 months and be paid about CAD $15,000. Sounds very reasonable. Even better is the structure of the experience:
Graduate student researchers will spend a minimum of 50 per cent of their time over a four-month period at a company, undertaking research on a problem jointly identified by the intern, business, a supervising professor, and MITACS, which is a federally funded network of Centres of Excellence that is managing the internship program.
InternshipRatings.com is another website where you can vent about your unfair internship or praise a fair one – or just check which employers are not exploiting their interns. It sets its heart to cover all 50 states, but falls short in many states, most likely because it was created recently. It is organized clearly, especially if you’re looking for reviews in a particular state or industry. It even allows to filter results by paid or unpaid internships and reports whether an internship was “great” for compensation when at least 51% of raters agree. It has a section where interns can find advice from industry professionals. This would be a good place to advise students on how to avoid or deal with an unfair/illegal internship.