If you’re in college and you’re reading this, you probably know someone with an unpaid internship this summer. You might even have one yourself. And entering a competitive job market in a slow economy, what can you expect? Sure, you might be doing tasks that any other worker would actually get paid to do, fetching coffees and lunches, filing paperwork or running checks. But legally dubious internships — unpaid or otherwise — provide a way for students to get their feet in the doors of the real world… right?
Not so much, according to the National Association of Colleges and Employers (NACE). NACE found that over the past three years, 63.1 percent of college graduates with paid internships received job offers, while a mere 37 percent of graduates without paid internships received offers. The percentage of students who received offers after not having interned? 35.2.
Unpaid internships have seen some criticism over the past few years, but perhaps nothing as dramatic as federal district judge William H. Pauley’s June 11 ruling in Eric Glatt, et al. v. Fox Searchlight Pictures Inc. Plaintiff Eric Glatt, a former intern at Fox Searchlight Pictures, filed a lawsuit against Fox after working without pay on the 2010 summer blockbuster “Black Swan.” Judge Pauley held that Glatt’s position at Fox was essentially that of a regular employee under the Fair Labor Standards Act (FLSA) of 1938. Specifically, Judge Pauley considered whether Glatt’s labor withstood the U.S. Department of Labor’s six-prong test (written as a means to clarify the FLSA) for evaluating the “circumstances under which individuals who participate in ‘for-profit’ private sector internships or training programs may do so without compensation”:
1. 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;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. 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;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
Despite the fact that Judge Pauly’s ruling as a district judge is limited in its national applicability, many companies, with even the risk of litigation, have begun to reconsider offering unpaid internship programs. The floodgates have opened, not only in the form of lawsuits pending against NBC, Conde Nast and Hearst Corporation, but also with preliminary discussions of how colleges might exacerbate unpaid opportunities for students. Others criticize the unpaid internship for implicitly barring lower-income students who need a steady income during the summer from participating in certain industries.
Fox Searchlight Pictures, for its part, plans to appeal Judge Pauley’s decision to the US Court of Appeals for the Second Circuit. If Judge Pauley’s decision is affirmed by the Second Circuit, however, it could very well come into conflict with a 2011 decision from the Sixth Circuit, which called the Department of Labor’s six-pronged test a “poor method for determining employee status in a training or educational setting.” If such a conflict between circuits ensues, the Supreme Court would need to resolve it.
Although some unpaid internships may provide opportunities for students in competitive industries, we should remember that waiving our rights as workers is not an option. If our unpaid work in the private sector (public sector and non-profit internships aren’t covered here, exactly) qualifies as legal under the six-prong test, no problem. But if it doesn’t, let’s make our voices heard and do something about it.
The FLSA exists to protect us from abuses like the many coming before courts today. How exactly Eric Glatt, et al. v. Fox Searchlight Pictures Inc. is eventually resolved will, I suspect, be of critical importance. Especially if the case arrives in the Supreme Court — the same judicial body that recently made proving employment discrimination more difficult for workers in Vance v. Ball State University — we will need to stay vigilant and make sure that denying any young workers their rights is no possibility.