How Congress Gets Away with Not Paying Its Interns

There are two types of unpaid interns: The kind who have a fair shot at suing their employers for illegal abuse of the Fair Labor Standards Act, and the kind who can’t do anything about it. The government employs the second kind.

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Over the last seven months, we've seen three separate former-intern suits, from interns who worked on Black Swan and at Harper's Bazaar and the Charlie Rose Show. These interns—all of them in the private sector—say they did work for which full-time employees would get paychecks, and therefore, they're suing. But there's one sector that seems to be exempt from the coming surge of intern suits: The government itself.

The FLSA dictates that private sector internships must meet the following six criteria, determined by the Department of Labor, to be legal:

The internship, even though it includes actual operation of the facilities of the employer, 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.

The FLSA further defines interns as "individuals who participate in 'for-profit' private sector internships or training programs ... without compensation," as long as the internships meet each of the above standards. But "if the employer is getting any benefit from the work of the intern, they would have to get someone else to do that work, [whether] that's answering the phone, cleaning, or entering information into a spreadsheet,” Elizabeth Wagoner, the lawyer representing all three of the above intern cases, told The Atlantic Wire.

Unpaid congressional intern duties don't sound too terribly different from the type of stuff media or film industry interns say they deserve pay for. It's "a lot of typical answering-the-phone duties, a lot of admin stuff -- handling, helping the legislative correspondent, constituent correspondence," said Brendan MacArthur, a former unpaid intern for Massachusetts representative Ed Markey. "Making copies and filing certainly happens," he says. But while congressional interns have the same work-for-zero pay experience, they don't have the option of suing. Their unpaid labor is legal under the congressional version of the FLSA, the Congressional Accountability Act, because Congress made it that way.

"I think it would be a difficult case," Wagoner told The Atlantic Wire when we asked if Congressional interns might be able to sue their former employers. "The law is specifically written in this exclusion, so you'd have to challenge the propriety of this exclusion. That is not a problem in the other types of intern cases that you're dealing with in private sector." As the FLSA does not apply to government employees, Congress passed its own version, the CAA, picking and choosing parts of the FLSA it liked, like the right to minimum wage and overtime for "covered employees." The thing is, the CAA regulations defines "covered employee" as "any employee of the House of Representatives, including an applicant for employment and a former employee, but shall not include an intern." The private sector FLSA does not have this same exclusion written into it.

Another former congressional intern, Elizabeth Kuttesch, who worked part-time for New York State Senator Kirsten Gillibrand, had experiences similar to MacArthur's, spending much of her time opening and sorting mail, answering phones, and doing other administrative tasks. "Every day we would get the newspapers from all the surrounding areas. I had to comb through the newspapers for any mention of her or any issue that would come out. I would highlight it, cut it out, and fax it to Washington," she told The Atlantic Wire.

But if either MacArthur or Kuttesch tried to sue for compensation, they wouldn't have much of a case. Though it adopted the FLSA for its own fulltime workers, the government made some key modifications for U.S. congressional employees. In the document, legislators not only define “covered employee” to exclude interns, but also define an intern as “an individual who (a) is performing services in an employing office as part of a demonstrated educational plan, and (b) is appointed on a temporary basis for a period not to exceed 12 months.” There's nothing that says anything about contributing to the company or any of the other FLSA criteria outlined above for the private sector. Which means these workers don't get the same protections as everyone else. “That's not an employee,” continues Wagoner. "So that person is not protected by the provisions of the law that only protect employees," she continues.

Yet the Congressional intern system presents the same frustrations and paradoxes as the rest of intern land. “Unpaid interns are becoming the modern-day equivalent of entry-level employees, except that employers are not paying them for the many hours they work,” Adam Klein, one of the lawyers for Xuedan Wang, the former Hearst intern, told The New York Times' Steven Greenhouse. Like the former Harpar's Bazaar intern, MacArthur's and Kuttesch's nonpaying internships resembled paid positions at their organizations, they said. MacArthur, who spent last fall interning for Mackey, says he had "more or less pretty much the exact same job" as the congressman's staff assistant, Eliza Dewey, a full time employee, who makes $30,000 per year.
Young workers -- Congress bound or not -- take these positions sans compensation because they have professional benefits, such as training, networking, and experience. But the hope is that all of that will lead to a real paying job, or at least provide the type of resume-building experience that might eventually get one hired somewhere. MacArthur had hoped to parlay his experience into an entry-level job on the Hill. As of now, he's unemployed. "I learned a lot and I really enjoyed it, but as far as a practical matter of gaining employment directly from it, at least immediately, I'm a bit disappointed in that," he told The Atlantic Wire. Kuttesch, who is studying to be a social studies teacher, had never planned on getting into politics, but she expressed similar frustrations with her experiences. "It's hard to see the value, when you're stuffing envelopes for five hours," she said. "What did I just do with my time? I have 18 paper cuts and who is this helping?"
The value, argue employers, is the chance to have that experience at all. If these programs were not legal, they wouldn't exist. And an intern program in which an employer "provides the training" but "derives no immediate advantage from the activities of the intern," as the law states, comes at a cost. The problem for young workers with little experience, however, is that the system itself impedes these intern-grads from getting the low-level paying jobs. "Right now, with a lot of the jobs I feel very qualified for, there's still someone who's pretty qualified as well who's willing to do it for free," MacArthur explains. As long as the free labor exists, why would a congressman allot more of the budget to pay a person to do that same work?

Many are willing to work unpaid jobs as a way in to a future in a glamorous industry, including this writer, who worked as an unpaid media intern. (Not at this company, though: The Atlantic Media Company has a paying fellowship program in which I participated.) This sort of system not only excludes those who can't afford to take the unpaid work, but replaces possible entry-level work with free labor. And it creates a situation in which only some people gain entry into those jobs in the first place, because others simply aren't in a situation where they can work for free. MacArthur would not have been able to afford his position, he told us, if his close relative didn't have free digs in nearby Virginia. And, Kuttesch only put in 8 to 10 hours per-week, working two other paid jobs at the time. But without the experience, MacArthur's chances at entering the political scene would have been even smaller. The problems of Congressional interns and private sector interns are essentially the same, regardless of the law.

Suing might not be the right move, though, even in the case of private sector interns, who have that option. For one, not everyone feels the system is that broken. A recent New York Times Magazine poll found that 41 percent of those polled thought unpaid internships were exploitative, compared to 33 percent who considered them worthwhile. A New York magazine poll came up with similar split results, with 43 percent saying they felt exploited, compared to 56 percent who did not. And, around a quarter of the students at The University of Pennsylvania take unpaid intern work each summer, a recent poll released by their career services found. Most students—until recently—seem to have accepted the idea of unpaid work, which can have benefits and open doors. Suing might get rid of these opportunities altogether.

The lawsuits in the private sector, says Wagoner, are coming from those who want to change the industry they care about. But as the law is currently written, congressional interns who want the chance to change their industry don't get that option.

This article is from the archive of our partner The Wire.