Last Tuesday a federal court in New York ruled that unpaid interns with the films “Black Swan” and “500 Days of Summer” were employees under current law and that Fox Searchlight violated their right to a minimum wage.
The unpaid internship is an aspect of the struggle for students to survive that Congress has ignored. Not only are students graduating with an average of more than $26,000 in debt, they aren’t even being given a chance to make money to help pay off that debt while still in school.
These interns are doing the work of paid employees, but they get paid nothing. Many of these internships do not have a unique educational function as promised. The legal and ethical question should be, who benefits? The intern or the company that hires them?
A Department of Labor’s Wage and Hours Division fact sheet offers guidelines to determine if an unpaid internship is 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.
Unfortunately, these criteria are rarely met. According to the Department of Labor's test, companies can’t derive an “immediate advantage” from an intern’s work. However, at for-profit companies, it is very likely they are benefiting from the work the intern is doing.
There are students who are willing and able to take these unpaid internships because they have the resources to support themselves. The rest must forgo the experience that the internship provides that future employers would look for on their resume. The less well-off are forced to use their summer not building experiences and connections in their field of study, but working as lifeguards or at their local fast-food outlet in order to afford to just stay in school.
At graduation, those with experience from their unpaid internships are likely to land good jobs (but not more likely than those with paid internships, according to the National Association of Colleges and Employers) while those lacking internships on their resume struggle to find employment as they try to pay off their massive student loan debt.
In the wake of the “Black Swan” decision, class-action lawsuits have been filed against Warner Music Group and Atlantic records as well as Conde Nast, the parent company of W Magazine and The New Yorker. In all of these cases, the plaintiffs argue that their internships were not legal under current labor laws. The interns working for Warner Music Group were unpaid, completing work that would have been done by a paid employee, working over 40 hours a week but never receiving any overtime wages. At Conde Nast, the plaintiff stated that he worked for less than $1 an hour.
This is why it is so important we stand up against unpaid internships and call them out for what they truly are – wage theft. Even our government engages in it: White House internships, FBI internships, and State Department internships all remain unpaid. Since Congress has conveniently exempted itself from the Fair Labor Standards Act, unpaid internships on the Hill are also perfectly legal.
Stand with us and sign our petition calling on the White House to pay their interns today. Hopefully with the White House leading as an example, we can end this atrocious exploitation of young and vulnerable college students.
