The courts are getting it wrong when it comes to unpaid interns

For the past six years, a group of brave young (and some not so young) former interns have been fighting for workplace protections, including the right to be paid. Not just to be paid properly—to be paid at all. I have had the privilege of representing many of them in their lawsuits. It has been quite a journey that, at this point, is going in the wrong direction.

At the beginning, the court of public opinion was decidedly against us. Anderson Cooper mocked our lawsuit against Fox Searchlight Pictures, which used unpaid interns on its Black Swan film production, placing it on his “RidicuList.”

But slowly the tide turned our way as more interns spoke up about the long hours they toiled for no pay and receiving little or no benefit in return. The New York Times reported that former interns were pushing back against exploitative internships.  A social media campaign urging companies to #payyourinterns exploded.

The interns’ lawsuits raised a straightforward point: interns who do real work for private companies, whether menial or not, are protected by our nation’s labor laws and, therefore, should be paid at least minimum wage for the hours they work. The fact that many interns are students or work for relatively short durations should be irrelevant. Seasonal and temporary workers must be paid the minimum wage, so why should there be an exception for interns? The fact that some schools grant credit to some interns should not change the calculation either. Course credit is no substitute for pay and, for many interns, paying for the school credit is another out of pocket expense that they can ill afford. In fact, everyone seems to benefit from the transaction more than the interns—schools benefit by reaping tuition dollars without providing instruction and corporations benefit by substituting parts of their paid workforces with unpaid hours.

In the six years since we filed our first case, some employers have taken the high road by changing their practices and starting to pay interns. That is great news for interns and for all workers, because it sends the message that no worker—even someone who is just entering the workforce and desperate to gain experience or who is trying to change careers later in life—is so expendable that our society’s minimum standards do not apply.

Unfortunately, it has been an uphill battle to convince courts that interns are entitled to the same benefits as other workers. In a decision issued recently, a panel of the Second Circuit Court of Appeals affirmed the dismissal of the claims of five unpaid interns who worked for Hearst magazines, although there was no dispute that these interns did work regularly performed by paid employees. Acknowledging that the test it applied to the interns’ claims was a “break from previous tests” it had applied to other types of workers, the Second Circuit confirmed that, at least in New York, Connecticut, and Vermont, interns can “provide a direct benefit to the employer” and still be paid nothing “so long as the intern receives identifiable educational or vocational benefits in return.”

Adding to the problem is that courts have watered down the level of “educational or vocational benefits” that employers must provide so that it means almost nothing at all. One of the interns in the Hearst case was told to “be invisible” when editors were in her presence, and that she should only ask employees questions as “a last resort,” if other interns didn’t know the answer. Another intern worked 10 hour days, five days a week “supervising” other interns and performing manual labor in a “fashion closet” where the magazine stores clothes and accessories. A third “learned” how to use a fax machine and rolodex—in other words, he got the same types of “benefits” any worker gains by doing the work itself, but without pay.

What can interns and their advocates do now to press for their rights? They can urge their schools not to award credit for unpaid internships—many prominent schools like Yale and Columbia don’t, because they believe that work should be compensated and do not want their students to be exploited. Interns can hold employers accountable for failing to offer bona fide training experiences by providing candid assessments to their schools and publicizing poor internship experiences so that prospective interns can effectively weigh their options. Finally, and most importantly, we can all band together and press lawmakers to enact proper workplace protections for interns. A few years ago, some states and cities passed laws that expanded anti-discrimination and harassment protections to unpaid interns, when it became apparent that employee-based anti-discrimination laws may not protect them. These laws should be expanded to ensure that interns who provide direct benefits to employers are paid for their work. In this time of uncertainty among much of the workforce, we need to reaffirm, not abandon, the principle of a “fair day’s pay for a fair day’s work” at the heart of our minimum wage laws.

Rachel Bien is an attorney at Outten & Golden LLP.  She represents workers who have been denied overtime, minimum wages, and other workplace protections under federal and state law.