Are Unpaid Internships Really Legal?

Work experience shouldn't come at the cost of exploiting college students.

Ah, internships. If you're a college student or were one recently, that word probably spikes your blood pressure a little bit, for better or for worse. Internships have traditionally been used as intensive training periods for college students or recent grads with little to no experience, in order to groom them into becoming full-time entry-level hires, often within the same company.

Nowadays, an internship is more of a necessary prerequisite to even be considered for a full-time position in many fields, not unlike a bachelor's degree itself. Hence it becoming more and more common for students to graduate college with four, five, six, or more completed semesters of interning under their belts.

So if you're a current student sifting through various job listing sites for your first or second (or third or fourth) internship, chances are you're going to come across more unpaid internship listings than paid ones. And while generally everyone agrees that working unpaid is, at the very least, a drag, you may take it for granted that unpaid internships are simply a part of the early career resume-building process. You don't have any experience, so why would anyone pay you? It's an educational experience, and you may even be getting college credit for it.

But once you're at that internship, manning a phone or printing hundreds of scripts or procuring coffee for the entire office, you may be thinking, "gee, that's quite a loophole that allows them to not pay me for this."

But does such a loophole really exist?

For non-profit organizations, yes; registered non-profits are subject to different rules than for-profit companies, one of which being that unpaid work can be performed by volunteers. (Imagine Google or Apple or PepsiCo soliciting "volunteers.") So if your internship is at a charitable organization, or even an arts organization that's registered as a non-profit, as many are, they are not legally required to pay you. Now, that doesn't necessarily mean they shouldn't pay you; how they treat their staff or even volunteers speaks to the integrity of an organization, and anyone demanding long hours and hard work with no compensation better be offering a fantastic and fulfilling experience to those unpaid hands. If you're studying something in a social justice or public service-related field, you might simply have to pick the unpaid internship offering the most flexible hours (which allow you to also work a paid job if you need to) and the most educational experience.

But what about for-profit companies offering unpaid internships? According to the Department of Labor, there are a series of six rules for unpaid internship programs that must be fulfilled in order for it to be legitimate:

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.

The DOL regulations go on to explain that "the more an internship program is structured around a classroom or academic experience as opposed to the employer's actual operations, the more likely the internship will be viewed as an extension of the individual's educational experience (this often occurs where a college or university exercises oversight over the internship program and provides educational credit)."

A lot of employers take this to mean that by offering college credit, the internship program is necessarily educational and serves the student/intern's interests. However, the opportunity to earn college credit (which more often than not requires little more than a signature and maybe a short letter from a supervisor to a student's academic advisor) is only a piece of the legal unpaid internship puzzle. The nature of the work is, per the DOL's wording, just as if not more important. What the first four of those criteria necessitate is that an unpaid intern basically can't be doing any work that benefits the company. Despite (very true) arguments one might make that an intern learns by doing, if the work is valuable in any way, it violates numbers 3 and 4 on that list. If the position is one that would otherwise be handled by paid staffers, or if the work benefits the employer, it needs to be paid. In short: unpaid interns can't be used as substitutes for paid entry-level employees, and they also can't be used to make existing staff's workload lighter and keep them from having to work overtime. They essentially need to be, as the DOL regulations go on to explain, simply job shadowing to be most clearly in cooperation with the law.

Wait a second. Does that sound like any internship you've ever heard of? Probably not. Most interns function somewhere between trainee and part-time employee, performing specific responsibilities and tasks that help support the functions of the company. This experience is certainly educational, in that students learn what it means to work in a particular industry, and to have responsibilities not just to your own GPA, but to a larger institution. But valuable work deserves compensation.

Plenty of employers make the argument that college credit is compensation, but as any former unpaid intern knows, the company doesn't so much "offer" you college credit as it does give you an opportunity to earn college credits that still fall under your own tuition bill. If those internship credits are outside of the allotted "full time" credit allowance most full-time students are already paying for at their universities, or if it's a time you wouldn't normally be paying for credits, like over the summer, that means you're paying your school—probably thousands of dollars—so that you can work. Which, yeah, doesn't exactly sound like compensation. And "experience" isn't considered compensation either. In law, there's always room for interpretation, but the guidelines the DOL provides are pretty clear: "If the interns are engaged in the operations of the employer or are performing productive work (for example, filing, performing other clerical work, or assisting customers), then the fact that they may be receiving some benefits in the form of a new skill or improved work habits will not exclude them from the FLSA's minimum wage and overtime requirements because the employer benefits from the interns' work."

So how do so many companies get away with possibly breaking the law by not paying their interns? Basically, because they can. Among students, the need for work experience is so great that plenty of students are willing, begrudgingly or not, to work for free. For those working in a media or entertainment field, paid internships can be so competitive that they almost certainly won't be a newbie's first relevant work experience. And while some students just accept this as an unfortunate reality, it can really hurt students from lower-income backgrounds who can't afford to work 2-3 (or even more) days a week without pay.

If you're an unpaid intern and you think your employer may be breaking the law by not paying you for productive work, you have a couple of options. The first one is to talk to your supervisor and/or company HR directly, either on your own or with the other unpaid interns. Try negotiating a minimum wage hourly rate, or at the very least a weekly stipend, which may still not be in accordance with the law but may be easier to accomplish and help reduce your financial burden. It's entirely possible that your supervisors may not be familiar with the legal guidelines on what constitutes an unpaid internship, or they may be unaware that when they require you to be earning credit for the internship, that you have to pay for each of those credits yourself.

If approaching your supervisor directly doesn't work, doesn't seem likely to work, or seems like it could be putting your job or name at risk, you may have grounds to file a complaint or even a lawsuit. In the last five or so years, a number of class action lawsuits have been filed against major companies like Conde Nast and Fox, which have settled or at the very least pressured the companies enough to start paying their interns going forward or cut internship programs they can't afford to fund. If you think you've been unfairly unpaid as an intern, consider taking one of these actions—you'll be standing up not only for yourself, but for all students interning or looking for internships.

It's one thing for a non-profit to claim that it can't afford to pay its interns, but when it comes to for-profit companies, if work needs to get done, it needs to be factored into the budget in terms of wages. Otherwise, it's just exploitative. Paid internships for productive work aren't "nice"—they're a requirement for demonstrating respect and appreciation for young employees' time and efforts. They're also the law.

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