Most Widely Flouted Law Since Prohibition?

InternshirtA high school student spoke recently  at a public event and said he was forced to work three jobs to support his family after his undocumented father was “detained” by immigration authorities.

 Is this student a candidate for a non-paying summer internship – the kind that gives students an advantage in college admissions or, if they’re already in college, educational credits or better job prospects?

 Of course not.

  And that’s just one of the problems with non-paying internships.

 The other problem is that many of these internships are a complete sham.  Technically, the Fair Labor Standards Act requires a company that does not pay interns to provide skills and opportunities that clearly benefit the interns.  The company can’t gain anything from the interns’ work. However, this  provision of the FLSA is perhaps the most widely flouted law since America banned alcohol during prohibition.

 A check of an internet job board this week found hundreds of  unpaid internship “opportunities”  from such employers as The National Republican Senatorial Committee and The Pittsburg Penguins hockey team.

Even the American Civil Liberties Union (ACLU), which says it has been “at the forefront of virtually every major battle for civil liberties and equal justice in this country” for 92 years, uses unpaid interns. 

 Interestingly, the ACLU’s  Summer 2013 Internship program seeks students to work in  “graphic design and multimedia.” Applicants should, among other things,  have digital design experience and be proficient in Adobe InDesign, Photoshop and Illustrator.

According to the ACLU ad:

 “The Graphic Design Internship offers the opportunity to gain exposure to the digital design aspect of Communications and its use to support the ACLU’s work.  Interns can expect to work on a variety of branding and key issue projects including the production of printed materials and graphics and design for the ACLU web site(s), multimedia and social media channels.”

Is the ACLU just trying to get hot young talent to work for free? 

You decide.

 Several interns have filed lawsuits in recent years claiming they were assigned to do substantive but unpaid work for the organization and/or menial tasks like doing errands and getting coffee that  conferred benefit on the organization but had no educational value. 

 Last year, former intern Lucy Bickerton filed a class action lawsuit against TV talk show host Charlie Rose. The lawsuit said Ms. Bickerton, a 2008 graduate of Wesleyan University, had various responsibilities at the show, including providing background research for Mr. Rose about interview guests, assembling press packets, escorting guests through the studio, breaking down the interview set after daily filming and cleaning up the green room. Rose and his production company settled the case by paying 190 ex-interns between 2006 and 2012  a total of up to  $250,000 in unpaid wages.

 (Obviously,  Ms. Bickerton was not represented by the ACLU. )

Test for  unpaid internship 
A for-profit institution does not have to pay an employee whose work serves only his or her own interests.  Here is the test used by the U.S. Department of Labor to determine whether a worker is a bona fide intern:

  • The internship is similar to training which would be given in an educational environment;
  • The internship experience is for the benefit of the intern;
  • The intern does not displace regular employees, but works under close supervision of existing staff; 
  • The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded; 
  • The intern is not necessarily entitled to a job at the conclusion of the internship; and 
  • The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

NOTE:  Although the ACLU calls their “interns” interns, there is an  FLSA exemption for those who volunteer for religious, charitable, civic or humanitarian non-profit organizations and individuals who volunteer to perform services for a state or local government agency..