Monday, July 21, 2008
Good commentary by Paul Gowder on the Uncommon Priors blog on why unpaid internships required for some jobs may violate the Fair Labor Standards Act (FLSA):
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 . . . .
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 . . . . 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 . . . .
Now consider the following advertisements for unpaid interns in the NYC media industry . . . .
“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?
So. Can you?
Hat Tip: Dana Nguyen