Monday, February 22, 2010

Are Externships Becoming the New Apprentice System?

New Image Three students separately came to see me last week because they were in the running for an unpaid internship at a labor and employment firm in Manhattan. They had all been invited  to an "informational session" about the internship, which involves six weeks of unpaid work at the firm. To be clear, Seton Hall doesn't currently have externship program with this (or any other) law firm.

Given that the firm does labor and employment law, it had to have been aware of the fair labor standards act issues, but was probably also aware of how these can, arguably, be dodged by having a law school offer credit as part of a formal externship program. Check out David Yamada,  The Employment Law Rights of Student Interns, 35 Conn. L. Rev. 215 (2002), for more on this topic.

But the firm had not contacted Seton Hall about such an externship. So I went to its website, where I learned that the program has been in existence for 10 years. It started "at the request of one New York law school" but now involves students from eight such schools. Presumably, Seton Hall would be the ninth. There are 20 interns each summer. .

Now, I have no way of knowing about the quality of the internships as an educational experience. I am admittedly a little suspicious that the firm didn't reach out to our externship supervisor before inviting (through resume referral) our students to the informational session -- but maybe that's just a glitch on one side or the other.

In any event, I told the students who asked me about the firm that I saw no benefit to students in any law school awarding credit in circumstances such as this.  Our current externships are almost all with public, or at least, non-profit entities. I'm not clear how,if we approved this externship, we would be able to say no to other firms. In pretty short order, it seems to me, the market for paid employment for law students would dry up -- both in the summer and during the school year. There's been some talk about the law biz moving to an apprentice model, and this would be a giant step in that direction.

Now maybe I'm just out of the loop and this has been going on for years -- obviously, at least at some level, it has for this firm. Plus, record companies have been using this strategy for a while (they are the only exception to Seton Hall's bar of externships with for-profit entities). Finally, I may be over-rating the value of student assistance -- law firms typically claim that even first year associates don't pay for themselves, so why should we expect even free student help to be of much value? In that case, the incentives would not lead to a race to the bottom and only education-minded firms will offer such programs.

But is this something we should be abetting?  Any comments -- both on what's going on out there and the what the law school response should be -- would be appreciated.


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Charlie, it seems like we're in danger of going from one extreme to another.

I've always thought it excessive to pay summer associates a pro-rated salary of a first-year associate. I remember, when I was applying to law schools back in the 80s, how stunned I was to learn that what I assumed was the MONTHLY summer salary was actually the weekly summer salary paid by the big firms! That impression hasn't changed: Even though law students can indeed deliver useful research and other assistance, the going rate summer associate salaries are just insane.

But now we're seeing the volunteer mode becoming more popular, and not only is it likely illegal (thanks for plugging my Conn. L.Rev. piece!), but also it strikes me as downright unethical (small u) for a for-profit law firm not to pay at least the minimum wage.

The practice is even more outrageous when some of these firms bill clients at roughly a paralegal rate for the work of volunteer interns. I don't have facts and figures as to the prevalence of this practice, but I know anecdotally from conversations with students that this is hardly unheard of. In fact, back in December I talked to an ABA Journal reporter who was investigating this as a possible story. I don't know if she got enough to make for an article, but assuming it's not an uncommon practice, I hope she ends up doing something with it.

Best, David

Posted by: David Yamada | Feb 22, 2010 10:22:51 PM

Our school has been doing for-credit externships at law firms for several years now. We require students to keep diaries and time sheets, to meet with a faculty sponsor three times during the semester for a discussion of what they are doing (while preserving client confidences), and to attend a weekly seminar at the school with other student externs and a skills faculty member where they discuss various aspects of law practice. We also require that there be an attorney at the firm designated as the mentor for the student who is responsible to be sure the student gets substantive assignments and has somebody who is charged with ensuring that they get a quality externship experience. The firm mentor must sign the time sheets, which are submitted to the externship program at the school and to the faculty tutor, who also receives and reviews the diary entries with the student. We see this as no different, essentially, for the externships we have with the NLRB Regional Offices, the US Department of Labor's regional office in NYC, placements with labor unions (we've had externs in the NY State United Teachers Union legal department, for example), or any other legal employer. These externships take place during the regular semester as well as the summer session.

Posted by: Art Leonard | Feb 23, 2010 8:52:56 AM

I should add that Suffolk, too, has permitted a limited number of for-credit internships with private law firms and corporations, with a very similar faculty supervision arrangement as described by Art Leonard.

Because the bulk of our students are not going to be offered summer positions with large law firms, this is a possible way for them to gain that exposure. However, their chances of post-graduation employment with these firms remain virtually nil. If students are going to do a firm or corporate internship for credit, I'd rather them search for places that someday may consider them for permanent employment if they do a bang up job.

I continue to be uncomfortable with the idea of students paying tuition money to get academic credit for an internship that provides free labor to a private employer, though I also understand that now is not the time to be standing on a soapbox of principle when it comes to such things.

Posted by: David Yamada | Feb 23, 2010 12:52:14 PM

There are actually several articles addressing the employment status of unpaid interns. Whether interns are employees is not just an FLSA issue. The issue has come up under Title VII and under other employment statutes as well. In the Restatement of Employment Law there is a section concerning employment rights of volunteers-which is an area I have written about. I would be happy to share some of my research if someone is interested.
Mitch Rubinstein
Adjunct New York and St. John's Law Schools

Posted by: Mitchell Rubinstein | Feb 23, 2010 4:09:55 PM

According to this article [Bernadette T. Feeley, Examining the Use of For-Profit Placements in Law School Externship Programs, 14 Clinical L. Rev. 37 (2007-2008)], an ABA survey showed the practice of granting externship credit for work at for-profit firms has been in place as far back as 1992.

This is the first time I've seen a formal, non-paid internship posting without a clearly stated policy that the student must be seeking academic credit. I'm quite surprised that a plaintiff-side employment boutique isn't bending backwards more to prevent a FLSA claim!

I share Mr. Yamada's discomfort with the idea of providing free services to for-profit employers. I think that if your school is contemplating an externship agreement with a firm, the firm must agree not to bill for any work done by unpaid externs. Preventing the firm from doubly benefitting from free labor while being able to profit from it should decrease the incentive to abuse the externship program. Mr. Leonard - do you know if your school has such a stipulation?

Posted by: Lindsy Lee | Feb 23, 2010 8:55:41 PM

I'd rather work a real job and make money. An apprenticeship? Sounds more like indentured servitude to me. But if it really is a learning experience, how about making law school a two-year thing.

Posted by: Jimmy Q | Mar 1, 2010 2:40:38 PM

There is a global, for-profit company called Landmark Education, headquartered in San Francisco, with offices in New York, NY, and other major cities around the world that uses the labor of hundreds to thousands of volunteers to run many of their programs. Unpaid workers fully run many of their seminars seminars that add to the bottom line to the tune of hundreds of thousands to millions of dollars, with no compensation forthcoming to the unpaid workers. I have never seen this business model before.I have asked Landmark to become a non-profit corp. to remove these ethical and possibly illegal issues and they have refused. Any suggestions?

Posted by: Hank Thierry | Nov 21, 2010 9:13:10 PM

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