On January 5, 2018, the U.S. Department of Labor (DOL) eliminated the “six part test” to determine if the someone could be classified as an “unpaid intern.” The DOL then established a “primary beneficiary test” that does not include a set of requirements to determine if someone could actually be classified as an “unpaid intern.” The new guidelines include a non-exhaustive list of factors to determine if the employer or the intern benefits from the arrangement such as the extent to which an intern receives educational training, understands there is no expectation of compensation or entitlement to a paid job at its conclusion. Several labor advocates and groups worry that under the new guidelines “a company can justify any program, no matter how basic, as benefiting the intern.” According to the Los Angeles Times under the new guidelines an “unpaid internship doesn’t necessarily have to meet any prescribed threshold related to those seven factors.” There is no longer an explicit standard for employers to meet that details an intern’s amount or type of work which will be enforced by the DOL.
According to The Columbia University Center for Career Education internships are defined as a “short-term work experiences that allow you to observe and participate in professional environments.” Internships allow students to explore their career options and gain valuable work experience. In addition, they offer the opportunity to have mentors in their future career fields and accumulate new skills. Andrew Crain, a career consultant for the Franklin College of Arts and Sciences and the College of Public Health at the University of Georgia, found “internships correlate to positive outcomes in the areas of confirming or rejecting career interests, setting and attaining career goals, quality of supervision, and networking.” With the benefits of internships in mind and increasing number of students participating in internships in today’s job market, protections for unpaid interns is even more important and necessary. The growing population of interns in today’s job market are being consistently deprived of basic rights and standards by their employers and left vulnerable by the DOL whose main purpose is to foster, protect, and promote the well-being of the American workforce.
The new guidelines from the DOL are just one example of the lack of comprehensive protections on the national level for unpaid interns. There are no federal laws protecting unpaid interns from things such as harassment or discrimination. This is inexcusable in a modern day economy in which internships have become key for students in landing full time jobs. Young people working to further their careers should be seen as less deserving of rights in the workplace just because they are not officially seen as employees.
Because unpaid interns do not receive a paycheck, they are not considered “employees” and are not protected under the Civil Rights Act. Thus they are seen as less deserving of federal protection and attention, even though they play an increasingly important role in a thriving workforce. Rachel Bien, an attorney who represented unpaid interns in a labor lawsuit for their work on the movie The Black Swan, described current legal rulings and laws around unpaid interns as focusing “on what employers are doing and if they’re offering a bona fide training program.” In several courts across the country, including the The Black Swan case, the focus has been defining one as an employee or intern and whether or not they should be paid. There has been no substantial discussion or action promising unpaid interns fair and equal work protections.
According to Propublica, “laws enforced by the U.S. Equal Employment Opportunity Commission, including the Civil Rights Act, don’t cover interns unless they receive ‘significant remuneration,’ according to commission spokesperson Joseph Olivares.” As a result, unpaid interns, who have little to no power, feel as though they have nowhere to turn. They fear losing possible recommendations or reputation. In addition, interns fear of possible retaliation from their boss. If an intern files a complaint there are no protections to prevent this from happening. In a workforce where internships are becoming more and more vital for career success, they are left no other option for experience and defenseless when faced with mistreatment from their employer.
The job market and federal laws keep unpaid interns in a vulnerable and uncertain position. The fact that unpaid interns are not allowed the same protections as other employees for their work is nonsensical. The only current legislation in process, on the federal level, is house bill 651 otherwise known as “Unpaid Intern Protection Act of 2017” introduced in January 2017 and has since been referred to committee. H.R. 651 would prohibit discrimination on the basis of race, color, religion, sex, national origin, age, or disability. This piece of legislation would be a long overdue first step into implementing comprehensive labor protections for unpaid interns. Congress, an institution that has run on the unpaid labor of interns for decades and has historically exempted themselves from possible legal action, owes unpaid interns the same labor rights and protections as any other employee.