This year, a string of lawsuits challenging unpaid internships as violating fair labor practices have swept the nation. Although unpaid internships have been around for many years, since the 2008 economic crash many companies have increasingly made use of unpaid interns to replace paid employees. This practice, however, isn’t strictly legal.
The U.S. Department of Labor offers a six-part test to determine whether or not an unpaid internship is legal. Essentially, an internship must not displace a salaried employee or serve as a trial period for a permanent paid position, and it must provide the intern with training. Based on those guidelines, doesn’t it sound like a huge number of unpaid internships are illegal? It certainly did to Vallentino Smith, a 25 year old in New York City who is suing Donna Karen for back pay regarding his unpaid internship. Smith is seeking a class action of many current and former interns in the fashion industry company. This represents the newest in a string of law suits challenging unpaid internships, many of which are focused on New York City.
Earlier this year, a federal judge in New York ruled against Fox Searchlight Pictures in a case in which two interns for the film Black Swam alleged violations of federal labor and state minimum wage law. This case my have opened the floodgates for unpaid intern lawsuits in the state, and possibly nationwide. Unpaid internships at many companies may dry up as corporations remain uninterested in paying for the labor of inexperienced youth but become increasingly afraid of minimum wage violations and resulting judgements against them.
With the number of unpaid internship lawsuits growing, it may be only a matter for time before companies, especially those in the creative industry which are known for making use of large numbers of unpaid young workers under the guise of internships, fights back and the case makes its way to the Supreme Court. The irony here, as pointed out by Jonathon Weil of Bloomberg is that the Supreme Court has unpaid interns too.
If this issue does get to the Supreme Court, is it likely that the Court will uphold challenges against unpaid internships, using its own unpaid interns to help craft such a ruling? Actually, it is. Well, far be it from me to put it past the present often terrifyingly pro business Supreme Court from gutting protections of ordinary workers. However, if the Court were to uphold current wage law regarding unpaid internships, it wouldn’t harm the Court’s ability to have its own unpaid interns. Luckily for the Court, when constructing minimum wage requirements, the government was careful to exempt itself. The government can hire as many unpaid workers as it likes.