July 18, 2012
Working for free has always been seen as a great way to gain valuable experience in a field of one’s interest. In fact, as I’m writing this blog article, there are thousands of law students (and other types of students) working for free this summer at offices all over the country. Despite having to find other ways to make ends meet over the summer, these students have gained a great deal of experience with which they can pad their resumes when applying to “real world” jobs.
But what happens when the experience isn’t enough for these students? What if they suddenly decide that they should get paid? One would assume that they wouldn’t have a claim since they knew from the beginning that the internship would be unpaid. Well, guess again.
Recently, three lawsuits have sprung up against notable employers by unpaid interns. One of the suits is against the well-known PBS talk show, “The Charlie Rose Show.” In March, a former intern, Lucy Bickerton, filed a class action lawsuit on behalf of herself and other unpaid interns against the show. She claimed that the show violated New York’s wage laws by not paying her when she worked 25 hours a week as an intern for the program. Similar lawsuits have been filed against Harper’s Bazaar and Fox Searchlight Pictures. Study the UnPaid Internship Guidelines Closely to Avoid a Failing Grade, 18 No. 1 Pub. Employer’s Guide FLSA Emp. Classification Newsl. 1
The dockets for these cases are available on Westlaw and WestlawNext at:
BICKERTON LUCY V. CHARLIE ROSE INC, 650780/2012 County Clerk Civil Index, New York County
GLATT ET AL V. FOX SEARCHLIGHT PICTURES INC., 1:11CV06784 Eastern District of New York
WANG V. THE HEARST CORPORATION, 1:12CV00793 Southern District of New York
Other motions, pleadings and orders for these cases can be found by doing title searches for the parties in New York State and federal materials in both Westlaw and WestlawNext.
Because these lawsuits are still pending, we have yet to see how they turn out. But a closer look at the Fair Labor Standards Act suggests that the students might have viable claims. According to Study the Rules Before Offering An Unpaid Internship, 19 No. 9 Employer’s Guide Fair Lab. Standards Act Newsl. 1, six factors must be considered in offering an unpaid internship. They are:
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.
Unless the employer is able to show that these criteria have been met, it might find itself on the hook for employment violations. Fortunately, businesses and organizations thinking about offering unpaid internships to students have a wealth of resources on Westlaw and WestlawNext to turn to before taking on any interns. Please read on for more information.
Jessica L. Curiale, America’s New Glass Ceiling: Unpaid Internships, the Fair Labor Standards Act, and the Urgent Need for Change, 61 Hastings L.J. 1531 (2010)
Sarah Braun, The Obama “Crackdown:” Another Failed Attempt to Regulate the Exploitation of Unpaid Internships, 41 Sw. L. Rev. 281 (2012)
Andrew Mark Bennett, Unpaid Internships & the Department of Labor: The Impact of Underenforcement of the Fair Labor Standards Act on Equal Opportunity, 11 U. Md. L.J. Race, Religion, Gender & Class 293 (2011)
Employee versus intern, 1 Wage and Hour Law § 3:14.50
If you’re interested in finding other litigation involving interns and paid wages, try the following search in All State and Federal Materials in WestlawNext:
unpaid “college credit” volunteer voluntar! non-paid /s internship /75 f.l.s.a. “fair labor standards act” labor employment