I’ve employed interns my whole career, gotten lots of “immediate advantage” out of them. They’ve done most of the research for my books and most of the research that won me Emmy Awards for consumer reporting. I asked my TV bosses to pay for the research help, but they laughed at me, saying, “You think we’re made of money?” From then on, I got much of my best help from unpaid college students.
… Am I evil? Am I going to jail?
—John Stossel
Every year, hundreds of thousands of interns in the U.S. work without pay or for less than minimum wage. Many of these unpaid or underpaid internships are at for-profit companies and closely resemble regular work: thousands upon thousands of labor violations each year, hidden in plain sight. An Intern Bridge survey, involving 42,000 students at 400 universities, found that 18 percent of the respondents had received neither pay nor academic credit for their internships, a likely indication that these positions were illegal. In certain for-profit industries—fashion, publishing, entertainment, journalism, to name a few—demanding unpaid internships dominate, with illegal situations possibly constituting a majority of all available opportunities. This chapter focuses on the core legal issues surrounding pay and workplace rights in private-sector internships. Just as troubling, however, is the preponderance of unpaid internships in the public sector and at nonprofit organizations: a legal gray area explored in Chapter 6.
The broad outlines of a broken paradigm are clear. Unless substantial training is involved, an intern is considered to be an employee, however temporary or inexperienced, and entitled to minimum wage and other protections under the Fair Labor Standards Act (FLSA), the central piece of federal legislation that addresses the rights of American workers. It doesn’t matter whether it’s at a blue-chip company or a small business, whether it’s full-time or one day a week, whether the goal is academic credit or a midlife career change—by law, there are very few situations where you can ask someone to do real work for free.
And there are good reasons why that’s the law. Working for free is a way of radically underbidding the competition and prompting “a race to the bottom”—after all, why should an employer pay for something ever again once it can be had for free? Every time young people scramble for an unpaid position, they reinforce the flawed perception that certain kinds of work have lost all value. Whether or not any given individual is happy to make this trade-off, the decision has consequences for everyone else. For an inexact but suggestive comparison, imagine if Chinese carmakers, keen to capture market share and subsidized by Beijing, started offering their cars to American customers for free. This would be considered illegal for more or less the same reason: using an unfair advantage to drop the price to zero both distorts markets and destroys livelihoods.
Yet illegal internships are spreading openly and inexorably; they have become a social norm propagated by employers, schools, parents, and interns themselves. The publisher of a storied California newspaper attempts to replace his reporting staff with full-time, unpaid interns, recruited from top journalism schools.1 Wall Street firms, hedge funds, and asset management companies, sensing students’ desperation in tough economic times, offer unpaid brokerage internships, involving financial analysis and investment research as well as secretarial work. Start-ups pencil interns into their business plans as a cost-saving measure, with empty promises of a distant salary or a stock option bonanza. Nearly every day, in every major city, employers post ads for illegal internships on Craigslist, Monster.com, and countless college job boards, describing serious work roles for qualified individuals, promising no pay and little or no training.
The cheerful, little-noticed manipulation of twenty-somethings constitutes a serious violation of law and basic ethics. Having inured ourselves to their informal, banal character, we make excuses for the unregulated and irrepressible spread of internships, to the erosion of the concept of work. The mutual consent of employer and intern should not be mistaken for proof that all is well or legal. After all, most sweatshop workers also consent to their toil, for lack of a better option. We tend to assume, reasonably, that something so widespread, so openly touted by respectable institutions, must be legitimate. Entire industries rely unabashedly on this source of free or cheap labor; an increasing number of placement firms are building multimillion-dollar businesses around selling such internships; thousands of educational institutions lend them credibility and resources. Why is no one blowing the whistle on illegal internships?
Michael Tracy, an employment lawyer who has written about internship law, succinctly states the issue: “The law is not widely known.” For a long time, this was true of students and parents, university personnel and employers alike—but there was nothing accidental about this blind spot. A quick internet search reveals the basic criteria that make an internship legal or illegal, information that media outlets and bloggers have now published thousands of times. Still, virtually no one mentions the law in conversation or takes it very seriously. Employers, schools, and professional associations benefit from the current system; parents and students largely accept it and bear the costs.
Interns themselves do communicate, sometimes feverishly and effectively, about which internships are revelatory or useless, fun or mindnumbing—now increasingly through dedicated internship rating websites—but there’s very little discussion of whether many internships are legitimate in the first place. According to Tracy, “The problem is that there are ‘willing victims.’ ” Yesterday’s interns need their former employers as references or contacts, and today’s interns trade their half-understood rights for a résumé boost. Some parents, raised in an era when work entailed pay, try to impart this old-fashioned idea to their teenagers and twentysomethings, but many also encourage and badger their progeny into getting a leg-up on the competition, no matter what. Indeed, parents are often the ones indulgently but misguidedly underwriting illegal internships, in effect subsidizing the companies that reap free labor.
And it’s not just about minimum wage. A host of other, related rights are at stake with illegal internships, from overtime to sick days to basic workplace rights. With their rights under the FLSA ignored and unenforced, interns face a second, equally cruel injustice: those working without pay are also left without legal standing and effectively “in legal limbo”—unable to bring lawsuits against employers, internship programs, or colleges. Our youngest workers, least likely to be wise in the ways of the workplace, effectively have no legal voice; they are considered no different from bystanders who just happen to be holding down a cubicle. Those subject to sexual harassment or racial discrimination have no legal recourse. No fair hiring practices pertain. In the world of internships, anything goes—inhumane employment practices, right out of the nineteenth century, are resurfacing in twenty-first-century office parks and skyscrapers.
Hugo Black had the kind of outsized, self-contradictory American life that hardly seems possible anymore. A charismatic senator from Alabama and later a Supreme Court justice, Black’s most enduring contribution may prove to be his authorship of the bill that became the Fair Labor Standards Act. Yet the tangle of his ideological convictions seems impossible to unravel: he launched his political career as a member of the Ku Klux Klan, and later become an outspoken New Dealer. He saw no contradiction between his literalist reading of the Constitution and professed veneration for the Bill of Rights, and the majority opinion he wrote in the 1944 case of Korematsu v. United States, which sanctioned the internment of Japanese Americans.
In June 1938, as the country’s economy stalled in the second trough of the Great Depression, Congress enacted Hugo Black’s bill, establishing a federal minimum wage, guaranteeing extra pay for overtime work, and ending the national disgrace of child labor. It was a moment of dizzying triumph for unions and progressives—the culmination of a halfcentury’s struggle to protect America’s new legions of industrial laborers. When he signed it into law, FDR proudly called the FLSA “the most far-reaching, far-sighted program for the benefit of workers ever adopted in this or any other country.”
Much of the law has weathered the last seven decades remarkably well. With little fanfare, its basic architecture has become a bedrock consensus. Aside from a libertarian fringe, few people would openly advocate the return of young children to factories, or a total scrapping of the minimum wage. The law’s stated aim—the “elimination of labor conditions detrimental to the maintenance of the minimum standards of living necessary for health, efficiency and well being of workers”—still sounds vital. Yet within a decade, the Supreme Court—yes, under Hugo Black—had opened up an important loophole in the law. Sixty years later, many interns are still caught in that loophole.
Initially, the FLSA declared only well-salaried, white-collar workers to be exempt from the law’s provisions: the familiar distinction between exempt and nonexempt employees. In the 1947 case Walling v. Portland Terminal Co., the Supreme Court held that a further group could be treated as exempt from FLSA protections: trainees. This second exempted group was not at all like the first, comprised of valued professional employees whose salaries, typically far in excess of minimum wage, are calculated on an annual basis. An exemption for trainees, on the other hand, meant that they would receive at most a “training wage” below the federal minimum, or possibly no salary at all—it was at the employer’s discretion. Walling v. Portland Terminal Co. involved a seven- or eightday training course for brakemen in a railway yard. After watching regular employees complete a task, the trainees were allowed to do it themselves under close supervision, even if this slowed down the railyard’s operations. In such a context, creating an FLSA exemption for trainees must have seemed like a reasonable proposition: a way of encouraging firms to provide vocational training for future employees without having to pay them like regular employees.
For interns, the crux of the matter is whether they fall into this trainee exemption. Such is the novelty of the internship phenomenon and the effective freeze on new labor legislation in recent decades that the internship phenomenon has never been directly addressed by federal regulations: instead there are older terms such as employee, trainee, volunteer, and apprentice, which jurists and regulators still struggle to define, let alone graft onto internship situations. Circuit court precedents since Portland Terminal have been murky and contradictory, but day-to-day enforcement of the FLSA and its trainee exemption rests in the hands of the Wage and Hour Division (WHD), an office at the Department of Labor established specifically to enforce and interpret these fundamental labor laws.
As distilled by WHD, the Supreme Court’s decision identified six relevant criteria for determining an exempt trainee, all of which must be met (see Appendix B):
1. The training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in a vocational school;
2. The training is for the benefit of the trainee;
3. The trainees do not displace regular employees, but work under close observation;
4. The employer that provides the training derives no immediate advantage from the activities of the trainees and on occasion the employer’s operations may actually be impeded;
5. The trainees are not necessarily entitled to a job at the completion of the training period; and
6. The employer and the trainee understand that the trainees are not entitled to wages for the time spent in training.
This test—buried in the Department of Labor’s Field Operations Handbook (section 10b11, if you’re curious) and a series of administrative letters—is clearly concerned with both protecting workers and encouraging employers to provide training. If an internship meets all six criteria, that makes it a traineeship for which wages are not required, but if even one of the six criteria is not met, the internship is legally considered a job, bringing the benefits of the minimum wage, overtime pay, and associated rights.
It’s into this little-known exemption that employers have tried to squeeze unpaid internships. The Portland Terminal scenario is a far cry from most of today’s internships, which typically last anywhere from a few months to a year and tend to involve real tasks, whether menial, administrative, or more substantive. Dedicated training is rare, and there is hardly more supervision than would be accorded to a regular employee, and sometimes less. Criteria 1, 3, and 4 are violated day in and day out, by design, in most internships. David Yamada, a law professor who has written on illegal internships, analyzed major internships at MTV and Sotheby’s as being in clear violation of these three. Indeed, only a small minority of real job-shadowing or trainee situations, which might happen to be marketed as internships, can pass the six-point test with flying colors.2
In particular, the criterion that an employer derive “no immediate advantage from the activities of the trainees” stirs up the most rancor. As part of the supposed win-win of internships, employers believe that they should benefit from day one: the idea that investing in an intern’s future might impede business activities is now anathema. In a nod to these employer concerns, some court decisions—and a recent move by California’s Division of Labor Standards Enforcement—have sought to weaken the “immediate advantage” criterion. The method is to take a “totality of circumstances” approach to the six criteria, rather than strictly requiring the fulfillment of all six, as the Wage and Hour Division does. “The difference in results can be a potentially significant one,” writes Yamada, who has warned that the “totality of circumstances” approach may involve an “extensive, drawn-out factor analysis that, by necessity, requires a great deal of subjective judgment … [and] virtually ensures inconsistent results.”
There’s a more philosophical question lurking in the legal legerdemain as well: How clearly can the law differentiate between training and work, especially in an ever-more intangible service economy? Under the “totality of the circumstances” approach, the legality of an internship would rest on whether the benefit an intern received from his or her training outweighed the benefits that the employer derived from the intern’s free labor. Can you balance out thirty hours of data entry with thirty minutes of database training or a brief powwow with executives? Is it vocational training to learn by osmosis, from being cc’d on emails or by sitting in on staff meetings? The judgment may vary in each case, but the spirit of the law is still clear: even if an internship is hands-on enough to produce real benefits for the employer, clearly identifiable training must remain the larger motive. Employers just out for cheap labor need not apply.
In March 1995, fifty-four unpaid interns got justice. By order of the Department of Labor, A. Brown-Olmstead Associates, a prominent Atlanta public relations firm, paid its former interns $31,520 in back wages—after having had the gall to bill its clients explicitly for the hours worked by unpaid interns.3 The pattern of abuse had occurred over a period of two years; among the interns affected, only two were still in school when they worked at Brown-Olmstead, while the other fifty-two already had college degrees, and a few even had previous PR experience. Few companies are brazen enough to put interns on a client’s bill, but overall Brown-Olmstead’s actions were barely distinguishable from thousands of other firms: they just got caught.
In April 2010, Steven Greenhouse of the New York Times reported that officials charged with labor enforcement in California, Oregon, and New York had recently handled cases involving illegal internships. Although few in number, and initiated by the interns, the cases gave prominent publicity—for the first time since the Brown-Olmstead case fifteen years earlier—to the fact that unpaid interns can fight for employee status and win backpay under the FLSA. In the interim, illegal internships have only become more, not less, embedded in the world of work. A tremendous outpouring of illegal internship accounts followed the publication of Greenhouse’s story: on personal blogs, on message boards, in the comment sections of articles, and into my personal email inbox. In most of these accounts, either intern or employer came anonymized—and it remained far from clear whether the interns would ever file formal complaints or lawsuits. Calling out abusive employers seemed to bring relief to the victims, but fear and uncertainty still hung in the air.
The employers indicted in these accounts run the gamut. The Times article described an NYU student who took an unpaid animation internship at Little Airplane, a children’s film company. She soon found herself working for the facilities department and wiping down door handles to prevent a swine flu outbreak. (Tone Thyne, a senior producer at Little Airplane, told the Times that the company’s internships are usually highly educational and often lead to good jobs.)
This anecdote alone unleashed a chorus of accusations from the throngs of young animators who have tried to break into the field with the requisite unpaid internships. Corporate giants such as Nickelodeon and the Cartoon Network were quickly accused of similarly using unpaid interns under false pretenses, as were many smaller studios. On the website Cartoon Brew, one recent graduate from a 3D animation school wrote of his experience: “I was unable to gain employment in the field so jumped on the chance to work in a small start-up company with a whole team of recent grads for free. Somehow, the employer was able to string us all along for six months … claiming that he was in midst of talks for a movie deal in which he would hire all of us for and he constantly pushed back the date he claimed work would start.” The intern only departed, he said, after the employer “sexually harassed one of the female interns (judging from email evidence and her personal accounts).” Other animators pointed out that Little Airplane had once made its unpaid interns dance in gorilla costumes to amuse a staff member on his birthday, that another animation studio made its interns “mostly responsible for doing dishes, putting away folding chairs, and emptying trash,” while at a third firm “interns have worked as many as three seasons without seeing a paycheck.”
A magazine intern interviewed for the Times piece spent much of her unpaid summer “packaging and shipping 20 or 40 apparel samples a day back to fashion houses that had provided them for photo shoots.” At a company that books musical talent, an unpaid intern toiled at photocopying, filing, and emailing for her boss. In the midst of the bailouts, famous banks were revealed to have approached NYU to advertise new unpaid internship positions on campus. A law firm that had promised “an educational $10-an-hour internship” was accused of not paying their intern and “requiring him to make coffee and sweep out bathrooms.” The recent cases of intern abuse in Oregon involved a solar panel company, an organic farm, a food-cart operation, and an interior design firm. Bob Avakian, Oregon’s Labor Commissioner, commented that these formal complaints are probably not even “reflective of all the situations out there where you might have people working for free or sub-minimum wage that should be entitled to more.”4
On the website One Day, One Internship, which profiles internship opportunities for college students, a former unpaid intern for Merrill Lynch defended his role regardless of legal questions: “I would say it was an even trade. I have a top company on my résumé and they got some free labor.” Another poster described “an unpaid, telecommuting internship where … I’m basically developing tours to help launch a tour division of a company”—she and her two fellow interns are designing a total of ten tours with meaningful profit potential for the company. A blogger who goes by the name “Maggie Stewart” works for an entertainment PR firm, “hoping to break the cycle of needing entertainment experience to break into the industry.” As she describes the situation, “I work for nothing, yet I diligently sit on the floor of my employer’s apartment organizing his CDs. I work for nothing, and get papers thrown at me without a please or thank you. I work for nothing, and I have yet to get the one thing I was promised in return for working for free. Experience.”
All these are enraging, but garden-variety illegal internships, where employers skimp on wages while pretending to offer a valuable experience, willing to break the law and take advantage of young workers to save a few thousand dollars here and there. Other kinds of schemes abound in the internship underworld. One Day, One Internship, among others, has documented the internships advertised by pyramid marketing schemes like the Landers Group, which advertised itself as a prominent sports marketing firm in Southern California. After an “informational interview” full of fast talk and obfuscation, intern hopefuls were required to participate in full-day “interviews” where they were in fact thrust into doing the company’s real work: selling possibly fraudulent coupons door to door in poor neighborhoods. “You’ll essentially spend the day working for free,” writes Willy Franzen of One Day, One Internship, citing numerous accounts he has heard. “If you’re lucky, you’ll just end up having wasted a day. If you’re not, you may end up stranded many miles from home or having a gun pointed at you and with mud all over your only suit.” A host of other fly-by-night entities are doing something similar, pushing “multi-level marketing” (also called pyramid selling) on internship- and job-seekers—Granton Marketing, DS Max, After Five Marketing Group, and Innovage, and so on.
Other variations on the illegal internship include unpaid trial periods, when an employer claims to be testing out a potential employee, and multiplying schemes to hire interns as independent contractors. Campus Career centers receive these proposals from employers all the time. “Our college has noticed an increase in elaborate payment schemes employers are concocting to try to get around the laws,” wrote one career counselor recently, referring to an interactive marketing internship in which the intern would be paid as an “independent contractor” $500 for three months of work. She also described “a large and well-respected media chain” that wanted to provide a paid internship, equivalent in hours and job description to an entry-level position, by giving a “scholarship” to the university in question, which would then channel the funds to the student. The stated aim was “to keep FTEs [full-time employees] off the books.”
One could go on with countless examples—the reality is that very few interns employed in illegal situations have ever sought or received justice. As David Yamada writes, “Unpaid internships rapidly have become so ingrained in the culture of collegiate credentialing that the lack of compensation is considered a short-term sacrifice in return for a potentially larger payoff in the future.” It simply falls under the heading of “that’s life.” Many interns are afraid or unwilling to burn bridges with employers, even if they know the law. The few cases that have been exposed or resolved have yet to make a real impression on the public imagination. And other pressures remain too strong.
One of the most serious effects of the internship boom has been the displacement of regular employees, directly in contravention of the sixpoint test, but this too has largely gone unnoticed or unchallenged, and is sometimes difficult to prove conclusively. Economist Jean-Marie Chevalier has estimated that at least 60,000 of the internships in France at any given time should be regular, full-time jobs.5 No comparable estimate exists for the U.S., where many more internships exist, but anecdotal evidence abounds that one or more interns are often used to avoid a new hire, to replace a departing worker, to handle busier work periods or cover vital administrative work. Thus the corrosive effects of the internship boom spread, leading to the layoff of hundreds of thousands of fulltime, regular employees who may well remain on the unemployment rolls because of labor performed by unpaid interns. Few of the industries where interns are having the biggest impact are significantly unionized—but even in areas like film and journalism, the union presence seems to have made little difference.
Still the most important factor by far in the rise of illegal internships is the failure of the Wage and Hour Division to enforce the law. Like any piece of legislation, however well intentioned, the FLSA is only as durable and effective as the enforcement mechanisms behind it. In the decades following Portland Terminal, companies loosened the definition of a trainee beyond all recognition, importing the title “intern” from the prestigious medical field and using the “trainee” exemption to wriggle out of minimum wage obligations. In the 1970s, the WHD started hearing from employers planning new internship programs: Could their interns be considered trainees under the law? The letters in response, always polite and scrupulous, rarely hand down definitive rulings one way or another, let alone follow up afterwards, all of which sends the message that employers can act with impunity: the Department of Labor acts as little more than a passive, invisible arbiter of last resort, never actively seeking out companies to prosecute, barely keeping up with shifting social norms around internships.6
Interns are not alone, however. Violations of the FLSA are rampant and pervasive, as enforcement by the Wage and House Division has sunk to dangerously low levels. Although most of the Division’s work is devoted to FLSA enforcement, its funding has been slashed considerably and its resulting ineffectiveness documented and savaged in a series of reports by the Government Accountability Office (GAO). A national survey involving thousands of low-wage workers in New York, Los Angeles, and Chicago recently revealed that 26 percent had been paid under minimum wage and fully 75 percent had not been paid for deserved overtime during the previous week—losses for those workers of $56.4 million per week, not to mention the damage to communities and to government revenues. Under WHD’s watch, the FLSA has descended into irrelevance.
“It’s very enforceable,” says Catherine Ruckelshaus, legal codirector at the National Employment Law Project (NELP) and an expert on FLSA enforcement. What’s needed, she adds, is simply “to get agencies engaged and beef up retaliation protections so workers aren’t afraid to complain.” The stagnation and decline of the Wage and Hour Division has been stark—from 1975 to 2004, a period when the number of workplaces in its purview increased by 112 percent, the number of staff investigators fell by 14 percent, reaching a nadir of 732 by 2007. That year, those investigators were able to pursue only 22,374 workers’ complaints (a decline of more than a third from 1998) and initiate only 7,210 claims of their own (a drop of over 50 percent from 1998). The trend has been reversed under the Obama administration, with 250 new investigators being hired for Wage and Hour alone and promises of a return to vigorous enforcement. But the results remain to be seen.
The most common FLSA violations overall, according to Ruckelshaus, are “failure to pay, requiring workers to work ‘off-the-clock,’ requiring workers to work through required meal or rest breaks.” The vast majority of such cases are resolved administratively with straightforward, efficient justice and reasonable financial remedies (often “double damages,” two times the amount of backpay owed, plus any legal expenses). The vast majority of complaints are filed by older, more experienced workers, cognizant of their rights—some also choose to file complaints at the state level, if there are relevant state employment laws, or to sue their employer directly. Many more interns could protect themselves if they knew about these tools—and WHD could make it easier for them by taking a proactive stance when illegal internships are offered so openly. “The WHD cannot rely on worker complaints to drive its enforcement programs,” according to an NELP report. “It has important capacity to engage in affirmative efforts to target high-violation industries and to protect the more vulnerable workers who may not come forward.”
In the meantime, without new legislation, individual internships remain subject to the six-point test—if the federal or state labor departments drag their heels, interns may need to take to the courts. Michael Tracy, the employment lawyer, says that his firm gets “thousands of potential clients inquiring about various labor code violations each year,” out of which “maybe one or two will be an intern.” As a result, his office has handled “hundreds of actual lawsuits of wage and hour violations,” yet “never filed a lawsuit brought by an unpaid intern.”
Michael Walsh, a specialist on minimum wage law, blogged that an “intern came to us recently and asked if her internship, which was unpaid, complied with the wage and hour laws. It did not; she had a handsome claim for unpaid wages … If you do work, other than pure practice, or work on dummy files, you are probably entitled to get paid, and your claim can go back four years.”7 Walsh’s home state of California’s has an $8 minimum wage—and intern employees are always entitled to the legal minimum or living wage wherever they work if it is higher than the federal floor. Just four weeks of unpaid work would add up to $1,280 in back wages. “Often, the claims of a few or all of the affected employees can be brought in a single case,” adds Walsh. As in the Brown-Olmstead complaint, forming a class can be the most efficient step, certainly for unpaid interns at a single firm and possibly even across an industry, if there are consistent patterns of abuse.
“I think most labor and employment attorneys would take these cases if presented with the opportunity,” says Michael Tracy. “I think the chance of success would be very high.” Willy Franzen, familiar with numerous illegal internships from his work at One Day, One Internship, thinks that when lawsuits begin there may be no holding back the tide: “I think it’s going to come. It’s just going to blow up.”
Even when properly enforced, the law has gaps—it may not protect people like “Henry,” who is still smarting years later from an exploitative internship during his senior year in college. Caught up in a bizarre project that can only be called an internship Ponzi scheme, Henry worked hundreds of hours for a husband-wife team, yet was able to learn almost nothing about the actual business. The Fair Labor Standards Act, like most pieces of employment legislation, only applies to organizations of a certain size—in this case, there must be two employees and at least $500,000 in annual sales. Absurdly, the question of whether Henry’s internship was technically illegal or not hinges on details he has no way of knowing—but the ethics are nonetheless crystal-clear: Henry was used.
Inadvertently, Henry had plunged into one of the sketchiest corners of the Intern Economy: home offices. After posting his résumé on a recruiting website run jointly by Columbia University and Monster.com, he received an email from someone at Universal HyperAnalysis Inc. (a pseudonym), which calls itself “a stealth-mode start-up” even today, five years after Henry worked there. To go with its grand-sounding name, Universal HyperAnalysis describes itself in lofty terms as offering tools to catalyze innovation and growth, and advancing scientific knowledge in biotechnology, research settings, government, and private industry. Internships are pitched at valedictorians and original thinkers attending top universities; serious prospects for personal and professional growth, with a company on the rise, are said to be on offer.
As for Henry, the pressure to add an internship to his CV had finally caught up with him: “Everybody I knew was getting internships every year. I hadn’t had one. I refused … Nobody enjoyed it, nobody learned, and I just didn’t understand the point.” Starting to search for a postgraduation job, he wised up—every “entry-level” job seemed to require two or three years of experience. “How does that work? Where are you supposed to get it?” Henry thought to himself. “So that’s what these internship people were talking about.”
Behind all the vague and fashionable buzzwords was “just this guy [the founder and president] on the Upper West Side [of Manhattan] who had turned his apartment into an office with six or seven computers.” Aside from the founder (a charming ex-investment banker) and his wife, everyone else involved was an intern, as Henry soon discovered. There were three or four others who worked the same shift as Henry, two days a week for about four hours each day—but he understood that there were numerous others in at different times. All he knew was that the founder “was supposedly constructing a massive resource base about various kinds of technologies”: there was no business to get to know, not even a hint of training, and no clarity about what was going on.
“I definitely didn’t think it was what it was,” Henry told me. Under the impression that he would be conducting research using his foreign language skills, Henry was instead tasked with “recruiting and interviewing interns in France, Brazil, Italy, Germany, having conversations on Instant Messenger in all these languages, recruiting interns and interviewing them … and talking to institutions, asking them to recruit.” Henry slowly came to understand that Universal HyperAnalysis “was amassing an international army of interns around the world” for the purpose, mostly, of recruiting still more interns and promoting ad nauseam the career of Universal HyperAnalysis’s founder.
Only a tiny stipend was on offer: Henry ultimately received $500 for nearly 200 hours of work. Despite his misgivings, Henry found the work easy enough and reasoned that he was at least getting some kind of experience under his belt. The opening of a dedicated office, the founder constantly promised, was just around the corner, and he told Henry that by next year Universal HyperAnalysis would even have an international office and offer him a dream job there. (Universal HyperAnalysis still appears to be run from the founder’s home.) Based on these hopes, Henry thought he might stay on for the summer after graduation, with Universal HyperAnalysis promising to pay him $3,000 for the summer, enough to survive on, if he moved to full-time.
Just as he was about to sign on the dotted line, the founder mentioned that the $3,000 stipend would come only at the end of the summer—directly contrary to what Henry remembered him saying before. Henry realized that he would have no way to support himself: “I said, ‘Wait a second. How am I supposed to live and pay rent?’ That didn’t make any sense to me … but basically [his] answer was, ‘You just need to convince your parents to support you and then you’ll pay them back. And if you need any help with that, I can help you figure out how to convince them.’ ”
“That was the moment when I felt that he was taking advantage of me,” Henry told me, “because he thought that I was a little rich kid with rich parents.” I’ve heard this many times from former interns: a moment comes when the scales fall from your eyes. It might be nothing more than a boss’s turn of phrase or a shift in tone. You realize that you’ve been had—that you’re cheap labor and nothing more, a schnook, a kid entitled to favors but not rights.
Henry wanted nothing to do with Universal HyperAnalysis after that, but he still hadn’t even received the $500 stipend for his work during the school year—it wouldn’t arrive until two more months had passed, with Henry putting pressure on all the way. And there was more: “[The founder] sends me this seven-page email, seven pages printed out … berating me, telling me how awful I was, what a horrible job I did, how when I came in I was tired, I was not motivated, I took too many breaks, my lunches were too long—everything you could think of to criticize. And not one bit of praise. But for seven months this guy was patting me on the back, telling me he’s got my dream job, and he wants me to work the summer. There’s no feedback, there’s no teaching me anything, no nothing.” Now even getting a good reference was out of the question.
A number of interns I interviewed were exploited in ways that resembled Henry’s experience—often in home offices, often with nobody telling them to be skeptical and alert about such “opportunities”—but he was particularly radicalized by the experience. “I just realized this whole internship thing is precisely what I knew it was: bullshit. The more I was thinking about it, I realized this guy is just starting a business using only interns; he didn’t employ anybody; and he wanted people’s rich parents to support them until he could pay them.” Henry describes himself as the kind of guy who would brave call centers to straighten out a minor mistake on a heating bill. Yet his standards for the internship were pitched so low to begin with—he hadn’t complained about pay, training, office conditions, or anything else—that it was only the personal stuff that finally got to him.
The biggest irony of all, Henry told me, came later, when he landed an actual dream job overseas—no thanks to the internship at Universal HyperAnalysis, which he doesn’t list on his résumé. The job came with the help of a man whose son Henry had gotten to know while working at the summer camp he’d gone to as a kid. To hear Henry tell it, that had been a classic American summer: he earned a respectable salary, enjoyed free room and board, and took trips into the mountains. “That’s how life should be!” Henry said to me. “Do what you want, and when you’re doing something that you like and you’re good at, you’re at your best. People will meet you and they’ll like you, and they’ll make suggestions to you and they’ll introduce you to their contacts. It shouldn’t be: ‘Oh my god, I have to have this internship, no matter how much coffee I have to get.’ ”
At least “Linda,” an international student in California, went into her illegal internship with eyes wide open. During a college summer, she worked as an unpaid intern for a major publishing company, fulfilling mind-numbing but critical mailing duties. “They should have paid me but they didn’t,” Linda told me. The other interns that Linda met at the Wiley & Sons office were paid for what Linda called “the same nonwork”—but because Linda was not legally entitled to work in the U.S., Wiley & Sons could use her for free and slap the label “internship” on it.8
But she and the company were using each other, Linda assured me—“it was pretty casual.” They quickly decided that the whole thing would be very quiet and under the table. “Free labor” was Linda’s answer when I asked her why an established company would take such a risk. The position of interns is so vague and unregulated that her supervisors at the company must have thought no one would be the wiser, and they were right. For her own part, Linda, then a sophomore, described her thought process as “Oh, shit, I need to do something over the summer that looks mildly respectable because I’m graduating in two years.” The previous summer had been ideal, spent on an archaeological dig in Sicily, but she took a clear-eyed approach to this one: “I needed something a little more ‘meaty’ on my résumé.”
Wiley & Sons famously publishes the sprawling series of For Dummies books, “the reference for the rest of us.” Their triangle-headed mascot (presumably the ultimate dummy) is a clip art classic. He stares out with googly eyes from the covers of those black and yellow paperback how-to guides on every topic imaginable (including Internships for Dummies). “There was no training,” Linda said of her first day on the job. “They walked me around the office, introduced me to everyone … showed me where the coffee was, and then started having me do the mailings. And then at four o’clock they told me I could go home.”
This pattern was repeated thirty-five hours a week for the next seven weeks. The mailings meant “putting a lot of galleys in envelopes and mailing them out to journalists for review … a ton of grunt work.” She can’t remember how many books she swaddled in padded envelopes that summer, nor the endless names of the small-town newspapers massed on her spreadsheets. Linda was able to live in her year-round campus housing and support herself by squeezing in research work for a professor. (Foreign students can legally receive pay if they work at the university where they’re studying.) Naturally, Linda said, her interest in the publishing industry never recovered from such a dismal routine.
Unpaid internships represent a double injustice—according to legal experts, the lack of pay also means that these interns have no standing in court as employees, even if they have worked full-time for a year in the same office. Without standing, many interns can’t claim the basic legal rights of the workplace. As David Yamada writes, “Student interns now exist in a legal void, falling between the cracks of legal protections for workers and legal protections for students.” Cynthia Grant Bowman and MaryBeth Lipp describe the situation as “legal limbo” because the landmark civil rights legislation prohibiting age-, gender-, and race-based discrimination in schools and workplaces simply passes over unpaid interns. In the eyes of the law, unpaid interns are neither students nor employees; they are invisible.9
Take the case of Bridget O’Connor. A social work major at Marymount College in New York, Bridget—like an increasing number of college students and nearly all aspiring social workers—was required to complete an internship in order to graduate. Her internship at Rockland Psychiatric Center was unpaid, but she received federal work-study funding through Marymount. Within days of starting, a psychiatrist at the center was allegedly harassing her, tossing off lewd remarks and asking her, supposedly in jest, to remove her clothes before entering his office.
As if such an introduction to the world of work would not be disturbing enough, Bridget was apparently ignored when she complained to her supervisors at Rockland. Although a part-time intern because of her class schedule, Bridget was doing the work of a junior staffer—meeting with patients one-on-one, producing reports, attending meetings. Yet it seems that her complaints could be shunted aside: she was new, she was just an intern. When Bridget left Rockland soon after and moved to a different placement, she sued Dr. Davis, the psychologist in question, and Rockland Psychiatric Center, which had allegedly tolerated his behavior, under Title VII of the Civil Rights Act.
There’s no question that she would have had a strong case, if the courts had considered her an employee, as to all intents and purposes she was. Title VII was expressly designed to prohibit workplace discrimination in cases like Bridget’s as long as there is straightforward and wellsubstantiated evidence. Yet two courts, at both the district and appeals levels, summarily dismissed the case, holding that Bridget didn’t count as an employee, and therefore had no right even to stand in the courtroom and make her case. The judgment turned on the fact Bridget wasn’t paid by Rockland, which the district court called “the essential condition to the existence of an employer-employee relationship.” Of the various and vague definitions for “employee” floating around the American common law tradition, the one pertaining to workplace discrimination cases happens to privilege pay above all.
In the upside-down world of internships, a responsible organization that compensates an intern—perhaps even with a modest stipend—may be subject to a lawsuit for employment discrimination or harassment, just as with any ordinary employee. On the other hand, as David Yamada writes, “An employer that fails to pay its interns in violation of the FLSA potentially gains an additional benefit by being able to parlay that violation into an argument that the lack of compensation also disqualifies an intern from claiming employee status under employment discrimination statutes.” In other words, no wages, no benefits, no vacations, no overtime or sick pay—therefore also no rights in court.
As Bridget’s case shows, an intern must first prove her status as an FLSA-protected employee, as a somebody, before a case will even be heard. With the minimum wage requirement of the FLSA in operation, Bridget would then count as a paid employee of Rockland. Only then would she receive Title VII protection against sexual harassment. On the other hand, as a student Bridget might have been entitled at least to seek redress under Title IX from her school, which was charged with sanctioning and monitoring the internship. Yet even indirect justice along these lines is in some doubt, as Bowman and Lipp show—although they write that courts may be more likely to hold schools liable rather than employers. Law professor Craig Ortner sees the key strategy as being a legal one, convincing courts that unpaid interns are compensated in the currency of opportunities and experience and that “it would be peculiar to deny an unpaid intern Title VII’s protection when her internship may provide the key to long-term economic security.”10
This injustice is far from being limited to a few cases—the failure to recognize interns as employees goes deep. Discrimination claims by unpaid interns and volunteers have emerged in California, Oregon, and Nebraska, all denied on the basis that the claimants had no standing. In Lipphold v. Duggal Color Projects, a New York State court dismissed out of hand a student’s claims about a supervisor who “touched her breasts and buttocks, frequently rubbed his body against hers in the darkroom … made sexual remarks to her … put numerous raunchy nude photos on the walls of offices where she worked … [and] refused to sign her time sheets and evaluations on time [because she had rebuffed his advances].” In Lowery v. Klemm, an attempt to protect a harassed intern by a Massachusetts appellate court was overturned by the state’s Supreme Judicial Court, as James LaRocca has documented.11 Interns continue to lack the proper legal remedies for discrimination on the basis of race, color, national origin, religion, age, and disability.
In another such case in 2008, a New Jersey student, interning at the Center for Integrative Body Therapies in D.C., charged a chiropractor with making sexual advances and initiating unwanted physical contact. Notwithstanding the merits of the student’s suit, a judge on D.C.’s federal court ruled predictably that the intern had no standing in court, noting that the local anti-discrimination law, the D.C. Human Rights Act (DCHRA), doesn’t mention unpaid interns in its definition of an employee. Mary Cheh—a law professor at George Washington University, and now a member of Washington D.C.’s City Council—reacted with indignation. “We’re the intern capital of the world,” Cheh said of the city. “The recent trend of unpaid internships has become so commonplace that there are hordes of our students working as unpaid interns. The idea that they’re unprotected against abusive behavior is unacceptable.” She introduced the Intern Anti-Discrimination Act of 2009 in the D.C. City Council, simply amending the DCHRA to include interns and thus entitling them to the same protection as other workers. Cheh added that “interns could even be seen as more vulnerable than regular employees because they’re just starting out.”
If Cheh’s bill passes—and she thinks that it is too mild and reasonable not to—it will be a small step towards protecting interns in a city where they’re crammed into offices without pay, mocked privately and not-soprivately, and swamped with menial tasks. Leaving larger questions unanswered, the bill would at least allow interns to file workplace discrimination suits within the single jurisdiction of the District of Columbia. For the time being, progress must be measured in tiny increments like Cheh’s proposal, the first of its kind. Rebecca Hamburg of the National Employment Law Association, a national network of plaintiffside employee lawyers, says that “probably the best place to start is the local level,” following Cheh’s lead and quietly amending local antidiscrimination laws that may already be more complete than their federal equivalents.
This lack of protection in the workplace is particularly acute when it comes to sexual harassment—there is disturbing, but unsurprising evidence that interns are more likely to face harassment than regular employees, findings that emerged from group studies of female mass communications and medical interns. As noted earlier, more than threequarters of all unpaid interns may be young women. Bowman and Lipp outline in detail the latter’s own undergraduate internship in broadcast journalism, a depressingly common scenario in which she “provided cheap, exploitable labor” and was made to feel “vulnerable, fearful, disrespected, alone, and powerless, especially when the harassment began during my first weeks at the station.”
Lipp’s internship was a college requirement, and she paid for the requisite credits. “An explicit preoccupation with sex and sexuality permeated the newsroom,” reports Lipp, but the many offensive comments she faced were “pale in comparison to the numerous times employees stared at my body, brushed against my breast, and ‘accidentally’ bumped into my body.” Bowman and Lipp conclude that gender harassment may even become “a means to degrade or ostracize female student interns … to discourage women from entering male-dominated fields” and that “a student intern is in a position of immense vulnerability and powerlessness vis-à-vis her supervisors, mentors, and co-workers in an external placement.” From unreported incidents to local scandals and national news reports on Monica Lewinsky, Chandra Levy, or David Letterman’s intern flings, the sexual power dynamic faced by interns is a depressingly familiar consequence of the internship boom. This is the part you didn’t know: when something does happen, unpaid interns are largely on their own, without protection or recourse, caught in a frightening legal limbo.