On Monday, Megan Willett of Business Insider clumsily attempted to make the case that unpaid interns should stop complaining about -- and suing over -- their unpaid internships. They are lucky to have jobs, as she puts it, even if those jobs are unpaid. It’s the kind of untenable argument that reminds one of Mayor Bloomberg’s assertion that New York’s carriage horses should be grateful for the opportunity to schlep tourists around Central Park in the middle of July.
Putting aside for a minute the semantic paradox of calling an internship a “job,” Willett’s position ignores the unavoidable fact that many unpaid internships, as they exist today, are illegal -- particularly those in so-called glamour industries like media and entertainment. Except under the narrowest of conditions, unpaid internships violate federal and state labor laws, and no amount of winking, nodding and accepting them as “paying your dues” is going to change that.
According to the federal Fair Labor Standards Act (FLSA), internships are considered “training programs,” similar to training that one would receive in an educational environment. (College students, when was the last time your professor asked you to fetch coffee?) That means unpaid interns must work under staff supervision, and they are not allowed to displace regular employees. If your internship has you working 45 hours a week -- a scenario Willett describes in her article -- you are probably doing the work of someone who, by law, should be getting paid for it.
Even more important, the law says that employers may derive “no immediate advantage” from the activities of their interns, meaning an economic reliance on unpaid interns can’t be used as a legal defense. In other words, employers can’t just walk into a courtroom and tell a judge, “Well, if I had to pay my interns minimum wage, I’d be out of business.” The fact is, a business model that relies on free or obscenely cheap labor is not a legal business model.
Stipends don’t change this, by the way. In recalling a former internship, Willett notes that she was paid $400 a month to work 45-hour weeks. That works out to about $2.22 per hour, which has been below the minimum wage in New York since the late 1970s.
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Like many people debating the unpaid internship issue, Willett argues her point from an emotional position. This is understandable. Many of today’s professionals have had personal experiences with internships early in their careers. If you believe your own internships have had a positive effect on your career trajectory, it’s perfectly reasonable that you, like Willett, will have a reactionary desire to tell litigious-minded interns to “cut it out” or “leave the bitching at the bar.”
But that won’t stop the lawsuits. The cat is out of the bag on this issue, and we can’t stuff it back in with finger-wagging and snark.
So why now? Timing, for one thing. In April 2010, the Department of Labor published “Fact Sheet #71,” which was meant to help employers in the for-profit private sector determine if their internship programs are legal. The sheet, which listed six stringent criteria for legal unpaid internships, made it obvious, particularly to lawyers, that many employers are breaking the law. Since that time we’ve seen a slew of intern lawsuits: Fox Searchlight, Hearst, Warner Music, Condé Nast, Gawker Media. Those lawsuits have not only increased awareness of legal implications, they also helped underscore the idea of unpaid internships as a function of socioeconomic disparity -- available only to those with the luxury of being able to work for free. Willett herself highlights this point perfectly in describing her own internship experiences.
“Not only did my parents help me financially when I was in dire straights [sic], but they also let their grown daughter live with them for six months while she interned and saved money to move to New York City.”
It’s nice that Willett had that cushion. It goes without saying that many recent college grads do not. But it’s ultimately beside the point. Unpaid internships are, in a large number of cases, against the law. Of course, you can argue that the law should be changed. It’s possible that the FLSA needs more flexibility. But simply telling unpaid interns to suck it up and count their blessings suggests that the black market of free labor can continue as if it were still off the radar of labor lawyers.