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.
In 2010, the Wage and Hour Division of the Department of Labor issued “Fact Sheet #71” to establish a “test” for unpaid interns at for-profit companies, in an attempt to clarify their position. The test said that companies could derive “no immediate advantage from the activity of the intern.” In other words, unpaid interns are not allowed to be useful, and yet they always are. This one provision makes illegal nearly all unpaid internships in the private sector.
The Fact Sheet isn’t an official regulation that judges can use to determine whether an internship is legal. Rather, it’s a toothless and incomplete document that doesn’t cover the many internships in the non-profit and public sectors. A mere footnote suggests that the WHD is “reviewing the need for additional guidance” for these sectors. Asked about progress since 2010, a spokesperson said that “WHD continues to review the need for additional guidance alongside other agency priorities.” Given no movement on the issue within the Department, it doesn’t seem to be much of a priority at all.
In other words, nothing has changed.
O Labor, Where Art Thou?
Interns have been abandoned, not only by a vague law, but also by a vacant administration. The Wage and Hour Division, which enforces the federal minimum wage, record-keeping, and other issues related to internships, has been without a director for the entire Obama presidency—and when it comes to internships, without a clue. The President recently put forth his third nomination for the post, after the first two withdrew because of expected GOP resistance. Even without a director, it’s clear that internships aren’t a priority for the WHD in the first place. The spokesperson told me that since 2009, it has secured a record $993 million dollars in back wages through investigations into more than 1 million workers whose conditions violated FLSA statutes. But not $1 of those back wages was won on behalf of unpaid interns. Instead, the spokesperson told me, the WHD chooses to focus its enforcement efforts on “workers who are at a greater risk of exploitation.”