The U.S. Department of Labor (DOL) recently filed an amicus brief in support of a group of interns who brought a class action suit against the Hearst Corporation. The plaintiffs worked in unpaid internship posts at a number of the defendant’s magazines, and then alleged that they were entitled to minimum wages and overtime. They claim that their work earned them the protection under the Fair Labor Standards Act (FLSA). The DOL points to its Wage and Hours Division (WHD) Fact Sheet #71, which outlines six specific criteria to determine whether or not an intern or trainee is considered a full employee under the law. The DOL asserted that the six-part test more accurately “captures the economic reality of the relationship,” as it provides more objectivity in its definition of what does or does not constitute an employee, and “ensure[s] that the agency applies a consistent standard across the country.”
In addition to those six criteria, there are other factors to determine the legality of an unpaid internship in the “for-profit” private sector. When an internship is structured more as an extension of an individual’s educational environment than as an integral part of the employer’s operations, there may be more room to justify an unpaid internship. But once an intern’s responsibility shifts towards filling more productive roles normally handled by salaried employees, compensation may be required. Similarly, if the employer takes on an intern for a “trial period” in anticipation of possibly hiring the individual as a full employee (essentially treating the internship as an extended job interview), that intern would generally be entitled to the same benefits as an employee under the FLSA.
In an increasingly competitive job market, internships serve as a particularly attractive “foot-in-the-door” for students who want to improve their chances of securing a job once they graduate. However, as valuable as that experiential learning is, “the hope for a better ‘someday’ should not come at the cost of working without pay today,” according to WHD deputy administrator Laura Fortman. For this reason, many legal and career service professionals believe that unpaid internships are unfair. Interns may be unaware of their legal rights under employment law, and thus not know enough to demand fair compensation. Also, an unfortunate result of the oft-cutthroat race to job placement and success is an uneven playing field. Says Mikey Franklin, co-founder of the Washington, D.C.–based Fair Pay Campaign: “People who can afford to work for free get ahead. People who can't afford to work for free fall behind.” Franklin initiated his grassroots organization last year, and is working to develop it into a national campaign to end unpaid internships. After all, he quips, one “cannot pay for groceries with college credit.”
In addition to those six criteria, there are other factors to determine the legality of an unpaid internship in the “for-profit” private sector. When an internship is structured more as an extension of an individual’s educational environment than as an integral part of the employer’s operations, there may be more room to justify an unpaid internship. But once an intern’s responsibility shifts towards filling more productive roles normally handled by salaried employees, compensation may be required. Similarly, if the employer takes on an intern for a “trial period” in anticipation of possibly hiring the individual as a full employee (essentially treating the internship as an extended job interview), that intern would generally be entitled to the same benefits as an employee under the FLSA.
In an increasingly competitive job market, internships serve as a particularly attractive “foot-in-the-door” for students who want to improve their chances of securing a job once they graduate. However, as valuable as that experiential learning is, “the hope for a better ‘someday’ should not come at the cost of working without pay today,” according to WHD deputy administrator Laura Fortman. For this reason, many legal and career service professionals believe that unpaid internships are unfair. Interns may be unaware of their legal rights under employment law, and thus not know enough to demand fair compensation. Also, an unfortunate result of the oft-cutthroat race to job placement and success is an uneven playing field. Says Mikey Franklin, co-founder of the Washington, D.C.–based Fair Pay Campaign: “People who can afford to work for free get ahead. People who can't afford to work for free fall behind.” Franklin initiated his grassroots organization last year, and is working to develop it into a national campaign to end unpaid internships. After all, he quips, one “cannot pay for groceries with college credit.”