How Washington Abandoned America's Unpaid Interns

A legal labyrinth has trapped millions of young Americans who work every year without pay, because they are called "interns" rather than "employees."
Run, interns, run. | Reuters

There’s an unattractive, neglected poster hanging somewhere in your office. Maybe it’s in the kitchen, tacked up above the microwave or next to the coffee pot. It’s the leviathan of US labor law–the Fair Labor Standards Act.

While the most common FLSA workplace notice reminds employees and employers of the minimum wage and regulations about overtime pay, child labor and tip credit, the act itself is far more expansive. But, ironically, the “employee” who has probably spent the most time pondering it—as they brew a pot, or perhaps clean the kitchen—isn’t really covered by the law at all.

The intern.

The Act is painstakingly specific, with a separate section for seaweed harvesters [Section 213 (a)(5)], switchboard operators [(213 (a)(10)], wreathmakers [(213 (b)(15); 213 (d)] and even child actors [(213 (c)(3)]. But it doesn’t offer one word for the estimated two million interns left to dredge the most unpleasant of tasks (not unlike a seaweed harvester, in fact). At a time when intern abuse is provoking a litany of lawsuits and complaints, this is plain negligence.

Internships have expanded to become a rite of passage for young workers. But often, they are entry-level jobs that pay entry-level salaries of exactly zero. For a country with minimum wage laws and a general sense that equal work deserves equal pay, this strikes many—but not all—as scandalous. In June, a Federal District Court judge ruled against Fox Searchlight Pictures, deeming their unpaid internships illegitimate. But in October, another case concluded that inappropriately treated interns cannot file suit for sexual harassment because they are not, technically, employees. Other suits, for example against Conde Nast (which has ended its internship program), and homemade insurrections, like at The Nation (who will now pay interns), have had scattered success.

Although some unpaid internships provide valuable training, all of them face the same systematic issues. By withholding all compensation, unpaid internships both discriminate against low-income students who might benefit from the experience and skirt the basic principle of a minimum wage. By operating in a legal gray zone, they are prone to nepotism and lack key protections given to all other laborers.  The problems with modern internships are expansive, and the possible remedies—from lawsuits, to open letters, to interesting financing options—have been creative. But we’ve directed our attention except the most natural target: the Department of Labor itself.

If there’s going to be a systematic change to exploitative labor practices used on interns, Labor will have to lead the movement. At the moment, they’re not even taking part.

The History of Intern Law (It's Very Short)

Senator Hugo Black didn’t have a cadre of interns in his office when he drafted the Fair Labor Standards Act in 1932, which makes their absence from the original document understandable. Less understandable is that, 80 years later, interns have multiplied and the law hasn’t adapted to cover them. The Department of Labor responds that the FLSA doesn’t have to cover interns, because interns aren’t technically employees. “In order for the FLSA to apply, there must bean ‘employer’ and ‘employee’ and the act or condition of employment,” a Department spokesperson told me. Well, the FLSA defines “employ” as “to suffer or permit to work.” Internships, paid and unpaid, certainly feature work—and often suffering—so it’s unclear why they are deemed exceptions to the law.

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Stephen Lurie is a writer based in Washington, D.C.

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