A few months ago I posted about the legality of internships, mentioning the U.S. Department of Labor’s Wage and Hour Division’s six criteria to classify a worker as an intern or employee under the Fair Labor Standards Act:
- The training, even though it includes actual operation of the facilities of the employer, is similar to what would be given in a vocational school or academic educational instruction;
- The training is for the benefit of the trainees;
- The trainees do not displace regular employees, but work under their close observation;
- 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;
- The trainees are not necessarily entitled to a job at the conclusion of the training period; and
- The employer and the trainees understand that the trainees are not entitled to wages for the time spent in training.
The Times article and my post noted the exploitive nature and questioned the legality of ubiquitous unpaid internships. Students believe they have no choice but to take unpaid internships for experience, to add a line to their resumes, to get a toehold with a prospective employer. The typical unpaid internship doesn’t appear to survive scrutiny using these criteria. It is not similar to vocational or educational instruction. Interns often perform either routine clerical tasks that would otherwise be performed by paid employees or menial make-work tasks of little educational value.
That post was based on a 2 April 2010 NY Times article titled The Unpaid Intern, Legal or Not? Last Sunday–3 April 2011, a year and a day after the linked article–the Times ran an Op-Ed article titled Unpaid Interns, Complicit Colleges. (The timing may be coincidence, or may reflect this issue appearing on the Times’ radar as students apply for summer positions.) The article’s author, Ross Perlin, is the author of “Intern Nation: How to Earn Nothing and Learn Little in the Brave New Economy.” His article addresses how colleges enable such internships by providing course credit for them, thereby “helping companies skirt a nebulous area of labor law.” He notes that “[e]mployers and their lawyers appear to believe that unpaid interns who get academic credit meet [the listed] criteria, but the law seems murky; the Labor Department has said that ‘academic credit alone does not guarantee that the employer is in compliance.’” A group of university presidents has assured the Labor Department that their “‘institutions take great pains to ensure students are placed in secure and productive environments that further their education,’” but the reality may be different. Only 30% of 700 colleges surveyed by the National Association of Colleges and Employers required that students obtain academic credit for unpaid internships. Charging students for such internship-related credit is, in Perlin’s words “a cheap way for universities to provide credit–cheaper than paying for faculty members, classrooms and equipment.” Perlin asserts that the 70% of those surveyed who do not require students to obtain academic credit are “evidently . . . willing to overlook potential violations of labor law.” He cites his interviews with college career centers which “flatly denied being able to ‘monitor and reassess’ all placements or even postings” as the group of university presidents claim they do.
Students’ acquiescence in this exploitive system does not make it palatable. They have little choice but to acquiesce if they want something other than an entry-level service industry job.