In recent years, increased attention has been paid to the inequities of unpaid internships. An unpaid internship is a non-permanent and non-paid work position that emphasizes learning over compensation. A paid internship is the equivalent position, complemented by compensation. Unpaid internships are inequitable in that they propagate privilege by giving advantage to those with the means to work for free. Furthermore, unpaid internships are in themselves morally and economically unjust in that interns are particularly vulnerable to exploitation and have little recourse for relief. Additionally, unpaid internships propagate the systemic inter-generational advantages—and disadvantages—of particular racial groups.
Unpaid internships serve as a microcosm for future workplace inequities, as internships as they stand are the foundation for young people to experience the workplace. Empirical research shows that racial and ethnic minorities are less likely to obtain paid internships compared to their white peers (Anderson, 2020, p.1). According to a survey conducted by NACE, 73 percent of white students had paid internships, compared to 6.6 percent for Black students, and 7 percent for Hispanic or Latinx students. For first-generation students, 25.6 percent reported they were unpaid interns (Carrasco, 2022, p.1).
Paid internships are disproportionately held by men as compared to their female counterparts (Ravishankar, 2021, p. 4). Studies further show that unpaid internships negatively impact graduate employment outcomes (Crain, 2016, p.1; Rothschild, 2020, p. 5; Doward, 2017, p.1). In other words, due to the fact that unpaid internships are thought of as a learning experience as opposed to real labor worthy of compensation, an unfair employer-employee dynamic is reinforced. Such a situation makes it so that even after an unpaid internship experience, the student is likely to encounter similar dynamics in their graduate employment outcomes. A survey of paid and unpaid interns revealed that paid interns expect to earn $50,000 more than unpaid interns or those that didn’t possess any internship experience (Zuckerman, 2020, p. 2). There is a clear connection between labor law as it stands and the severity of this inequity. Interestingly enough, the highest proportion of unpaid internships were found in retail (89%), the arts (86%) and the media (83%) (BBC News, 2018, p. 1).
Such a dilemma raises a crucial question: how does the history of American labor movements and how they’ve attained success through the courts set the stage for the labor struggle of unpaid interns? How can we use these legal lessons to help inform and mobilize the campaign for reforming unpaid internships?
A lot of attention is paid in this research to the pre-existing factors and conditions that make someone more likely to be given an unpaid internship over their male and white counterparts (Anderson, 2020, p.1). Additionally, much research explores how an unpaid internship can affect graduate employment outcomes (Crain, 2016, p.1; Rothschild, 2020, p. 5; Doward, 2017, p.1). At the same time, short shrift has been given to the contextualization and situating of unpaid internships as it relates to other labor movements. Organizations often depend on unpaid interns for significant labor input, giving full-time employees the ability to focus on other tasks. Like other groups of workers, interns face similar dilemmas in the workplace surrounding fair treatment, protection from exploitation and harassment, and freedom from discrimination. However, unlike other worker groups, unpaid interns lack formal employment status and are thus not afforded legal standing as employees.
The history of labor movements in the United States is long and storied. Perhaps no other labor group in American history better illustrates the slow and incremental progress that can be made through the courts than the movement for women’s rights in the workplace. Women, often marginalized in American political life, were also subjugated in the workplace.
This raises a central question for investigation: what can be learned from the history of American labor movements and the incremental progress obtained through the courts? Moreover, how may we apply the lessons of American labor movements to the struggle of unpaid interns? Here, I show that the labor struggle of unpaid interns is not unlike the great labor struggles of the past: gender equity in the workplace, racial equity in the workplace, and the recognition of the labor rights of gig workers. Furthermore, I demonstrate that, just like in the historical cases mentioned, the push for recognition and freedom from exploitation demanded by unpaid interns is grounded in the same judicial interpretation of the National Labor Relations Act used to establish and reinforce the labor rights of women and other minorities in the workplace. I will also explore the Fair Labor Standards Act to augment the discussion and lastly, will fully situate the unpaid internship system into these other movements.
However, I will also assert that the unpaid internship complex, while currently seen as different from these other social justice causes, will eventually buckle when there is a cultural shift that acknowledges that unpaid internships do not fit into our standard of a new progressive normal. These types of cultural shifts have been used in conjunction with the law to secure other labor wins. Still, now, people do not see unpaid internships as incongruent with the work of social justice in the same way that people then did not see limiting women’s right to work as incongruent with the mission of civil rights. Therefore, the movement in itself is stagnant until there is a cultural shift that can compete with the demands and prioritization of the economy’s need for cheap labor.
Lastly, a large number of states do not protect unpaid interns from sexual harassment and discrimination (Lachman, 2015, p. 1). The places that provide such legislation to account for harassment and discrimination of interns include New York City, Illinois, Oregon, and California. Ultimately, both local and federal regulations to protect unpaid interns are limited and require further exploration and interrogation.
In this project, I answer these questions by exploring the connectedness (or lack of connection) the unpaid internship has to historical labor movements as they have been argued under the law. I will explore a variety of labor rights movements in order to provide a deeper contextualization of what has been established for marginalized groups, and why interns have not been recipients of such benefits.
I hypothesize that through this case study analysis, I find that the unpaid internship movement, when thought of as a labor movement, faces unique obstacles. This is due to the fact that unpaid internships serve as a critical underpinning to how society functions without having to compensate people, and have been normalized, especially in progressive spaces. What distinguishes this movement from others is how it functions—despite just being another reiteration of inequity, the unpaid internship structure both simultaneously harms everyone while hurting some uniquely. One would think that these progressive spaces would be more invested in the cessation of unpaid internships; yet, due to the choice between what appears to be supporting an economy that relies on cheap labor and moral values, they still choose the former. It does not help that there are currently no social pressures to end the unpaid internship movement, which can sometimes force cultural attitudes to shift.
The labor struggle of unpaid interns is similar to the aforementioned legal cases because many of these labor movements burgeoned out of similar misconceptions that were later found to be unfair and prejudicial. In other words, the struggle of unpaid interns differs now from these labor movements because of its sheer need in the same public policy spaces that need to advocate for its end (think unpaid Capitol Hill internships). Unpaid internships provide a cheap form of labor that has long been uncontested. However, it is comparative to other labor movements which conflicted with the societal dynamics of what was normal, and they were instrumental in defining the new, progressive normal.
I anticipate that these findings will have a larger political impact due to the fact that internships have not only replaced entry level jobs (Waxman, 2018, p.1), but that they have been contemporarily normalized. Rather than providing both training and compensation, the two are made to be mutually exclusive; the result is that most young people do not get paid for their labor. In addition, this kind of cultural upset may in turn shed light on other inequalities within the workplace which have used the guise of training and education to excuse altered workplace practices. Accordingly, it is of utmost importance to explore this phenomenon to better inform how worker rights and legal privileges may eventually be extended to unpaid interns.
Power in the Workplace
Several current political scientists and professors have documented how the workplace is inherently political. The disparities of wealth and how it affects the political process have been notably covered in much literature. For instance, employers are increasingly using their workers for politics and recruitment (Alexander Hertel-Fernandez 2021). According to Fernandez, employers who may appear apolitical are more often pushing their employees to serve their own business interests in a political context, both related and unrelated to the existing workplace. In other words, Fernandez proves how the workplace encompasses social politics. Internships are a possible venue for the manifestation of a potential political relationship where power dynamics play out.
Internships are the modern manifestation of how women and other marginalized groups are underrepresented in the workplace. Women are less likely to receive paid internships than their male counterparts (National Association of Colleges and Employers, 2020, p.1). Both legal and statutory understanding of harassment, along with who constitutes as employers and employees, helps situate unpaid interns within the workplace, while also grappling with pivotal research that has proven de facto discrimination and harassment.
As political scientists become more concerned about the vast disparities of income, internships, both paid and unpaid, also are relevant to this critical discussion. There may even be connections between the economic prospects of unpaid interns and their future voting behaviors and patterns, as we have seen larger generational shifts in voting behavior and our generation is one of the most interning generations ever. Therefore, these authors and political theory provide a critical context for shaping the debate about unpaid labor and how it pertains to power.
Exposing Inequities in Internships
Inequity in internships is prolific because the language of opportunity is both enticing and simultaneously silencing. Maynard (1997) compares the differences between two sets of letters regarding internships and found that the language of “opportunity” co-occurs with “supervision,” as compared to the paid set, under which writing skills and work were emphasized. These correlations may suggest that because the opportunity (along with skill training) is emphasized so much within unpaid internships, it already sets interns up to feel like their employers are giving them something (and therefore also creates a system of harassment).
Hefferman explores how unpaid interns are a vulnerable group of people that evades the typical understanding of how to enact federal protections for workers. Further, modern courts have struggled with whether unpaid interns are classified as employees (Hefferman, 2017, p. 4). To greater contextualize the relationship between unpaid internships and treatment, it is helpful to utilize the tests courts use to determine whether someone is an employee deserving of discrimination protections under the Fair Labor Standards Act (Hefferman, 2017, p. 7). In addition, the legislative precedent that informs loopholes for employers to take advantage of interns is important to analyze; Hefferman provides evidence for that idea as well.
In a similar vein, Perlin (2012) shows how millions of young people who work as interns both run cities and are exploited by said cities. Through profiling interns and discussing the phenomena with professionals and scholars alike, Perlin shows the overwhelmingly negative effect of internships on the workplace economy, while also exploring the role of exploitation and harassment in sustaining the practice. This body of work shows how despite the illusion of cheap labor, the economy still suffers under this power system. Perlin produced the first work tracking the rise of internships and its relationship to unpaid work in the modern workplace, and demonstrates how it became a loophole for companies and organizations to hire cheap labor while also constructing an unnecessary barrier to access.
Unpaid internships are found to be concerning by activists and scholars alike, including in how they sustain the government’s wealth of accrued unpaid labor. The burgeoning policy group Pay Our Interns found that after reviewing 85,000 pages of House and Senate payroll records, most offices used their funds inequitably. Those who were more privileged in one way or another were more likely to be hired; 76 percent of paid interns were White and went to white universities (Jones et al., 2021, p. 3).
Also contributing to understanding this timely topic is the work of Hickman and Thompson. Hickman and Thompson (2013 p. 1) demonstrate how unpaid interns are not protected from sexual harassment due to their legal status, and how that affects their willingness to come forward in light of potential retaliation. This particular literature in itself is important because it demonstrates that not only do interns not have access to the same protections as employees but that this type of dynamic both intensifies and worsens the situation between the employer and the employee, along with the decreased likeliness that a victim of sexual harassment will choose to speak up about their treatment.
Ultimately, such scholarship sets the stage for how unpaid internships function as a form of inequality in the workplace; in addition, they challenge the normalization of unpaid internships. As a form of unpaid labor, this scholarship shows that unpaid internships perpetuate disparities between race, class, and gender, further cementing unequal workplace dynamics.
There are some examples of laws and policies which establish what is considered an unfair treatment under an unpaid internship. In Assembly Bill No. 144, California asserts that discrimination against any person in selection or treatment of that person in an unpaid internship, or the harassment of that person, is an unlawful employment practice. Further, the Assembly Bill asserts that the California Fair Employment and Housing Act—which prohibits the existence of a restrictive covenant that makes housing opportunities unavailable based on race, color, religion, sex, sexual orientation, familial status, marital status, disability, national origin, source of income or ancestry— is applied to employers, labor organizations, employment agencies, and specified training programs.
As the Assembly Bill states, “Nothing in this part relating to discrimination on account of marital status shall do either of the following...For any person to discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person discriminated against.”
Unpaid internships are a unique form of labor that can be compared to other American labor movements in that other cases historically dealt with questions of employee status and treatment. For instance, the Age Discrimination Act of 1975 prohibits discrimination on the basis of age in programs and activities receiving federal financial assistance. In Meritor Savings Bank v. Vinson (1986), the court ruled that sexual harassment was a violation of Title VII of the Civil Rights Act of 1964. In West Coast Hotel Co. v. Parrish (1937), the court ruled that establishment of minimum wages for women was constitutional, answering whether the minimum wage law for women violated the Due Process Clause of the Fifth Amendment. These cases are inextricably linked to the critical conversations about labor, power, and systemic inequities. They’re linked to understanding the groundwork for unpaid labor because they dealt with similar questions of worker rights in the context of employer-employee relations.
The roots of labor organizing go back centuries. In Commonwealth of Massachusetts v. Hunt (1842), the court ruled that labor unions did not fall under the purview of the common-law doctrine of criminal conspiracy. Chief Justice Shaw stated in the case that trade unions are legal and they have the right to strike. Shaw asserted that Massachusetts had set no legal limit on wages, and because of that, the idea that a conspiracy to raise wages was illegal was not applicable here. Several cases followed pertaining to trade and labor unions. However, it makes more sense for this project to thoroughly examine other unique circumstances of a person’s positionality or identity that may share more qualities with the unpaid labor movement, such as legalities concerning veterans, expecting mothers, and independent contractors vs. employees.
There are several relevant court cases and legal precedents which effectively set the stage for the discussion of unpaid labor. In the landmark case, Walling v. Portland Terminal Co., (1947), the court ruled a trainee is not an "employee" within the meaning of § 3(e) of the Fair Labor Standards Act. In this case, the Administrator of the Wage and Hour Division (the office responsible for enforcing federal labor laws that were established with the enactment of the Fair Labor Standards Act) sued a railroad due to these FLSA violations. It was argued by the court that a trainee was not entitled to minimum wage pay since according to Section 14 of the FLSA Act, they did not qualify for these entitlements. By appealing to a framework that normalized learning as not synonymous with compensation, Walling established that trainees would be entitled to different treatment.
Similarly, in Glatt v. Fox Searchlight (2015), the question at hand was similar: should unpaid interns be deemed as employees under the FLSA? The court ruled against the plaintiffs, who later won in a civil suit case. In this case, they determined if an unpaid intern can be considered an employee under the FLSA hinges on whether the intern or the employer was the primary beneficiary of the position and work relationship. It was argued that the intern entered into the intern-employer with the expectation of educational benefits. The primary beneficiary test that was established in Glatt v. Fox Searchlight has three prominent features that are salient—what did the intern receive in exchange for their work, what was the economic reality between the intern and the employer concerning wages and the role they play within the organization, and that the intern-employer relationship should differ in its subsequent analysis from how employer-employee relationships were typically assessed. This case was significant because although the plaintiffs were able to file a class action lawsuit and won compensation later, this precedent of defining interns as different than employees was cemented.
The complete list of factors from Glatt shows how intricate these employee distinctions vs. intern ones are. They include the extent to which the intern and employee understand no expectation of compensation (for instance, compensation cannot be promised and revoked later), the similarity between the internship and training provided in an educational environment such as an educational institution or a clinical, the extent to which the internship relates to the intern’s education experience and relevant coursework (receiving academic credit), the extent to which the internship is accommodating of the intern’s academic commitments, the length of the internship and its subsequent relationship to the overall beneficial learning experience, how the intern’s work augments rather than displaces paid employee’s work and contributions, and last, the extent under which the intern and the employer understand that the internship does not necessarily mean entitlement to a paid job by the end of the paid job.
However, if an intern quits due to harassing circumstances and whether or not a stipend can be prorated have never been dealt with in any of these cases, illuminating many questions about those particular circumstances which typically arise. Ultimately, these cases and laws offer insight into worker rights as it pertains to the unpaid internship complex and minimum wage, along with worker harassment. In addition, it is important to highlight the role of infantilizing language in establishing legal precedent in labor law; for instance, women and older workers are portrayed as needing care and help in order to further justify the discriminatory behaviors on behalf of their employers. The background which follows provides necessary context for how the unpaid internship movement can be situated, rather than seeing the problem in a vacuum.
The Equal Employment Opportunity Commission Role
The Equal Employment Opportunity Commission (EEOC) has played an integral role in securing labor rights for various marginalized and disadvantaged groups. Established through the Civil Rights Act of 1964 with the intention of administering and enforcing civil rights laws against workplace discrimination, the EEOC is responsible for enforcing federal laws which make job discrimination—including hiring, firing, promotions, wages, and in employment—illegal. EEOC laws apply to the majority of employers with at least 15 employees, and employers with 20 employees are the specified number when it comes to age discrimination cases. Labor unions also are protected by the EEOC.
The EEOC has the authority to investigate such discrimination charges for employers which fall under the jurisdiction of the law. They aim to make a finding based on fair and accurately assessed allegations, and if the finding reflects that discrimination occurred, they work to settle the charge. However, if they are unsuccessful, they still have the authority to file a lawsuit to protect the interest of the public, and the EEOC litigates a small percentage of these cases. In consideration of this as a possible avenue for seeking justice, the EEOC considers the larger impact the lawsuit could have on their ability to combat workplace discrimination (EEOC). The EEOC has a bi-partisan commission and general counsel.
Historically, the EEOC has argued cases that have defined the bounds of labor law. It is also of significance to note that the EEOC began pilot meditation programs; such programs, in conjunction with the ADR Task Force recommendations, created a significant alternative to the EEOC’s typical mode of investigation in order to resolve cases of employment discrimination. In 1999, EEOC’s mediation ADR program was established. There is not a scholarly consensus on how alternative dispute resolution should or should not be used. Similar to conversations about restorative justice, which has garnered much controversy in certain spaces, alternative dispute resolution has been proven to be a successful tool for remedying injustice. However, similar to the process of restorative justice, it still suffers in its trust and popularity due to its repercussions on victims of discrimination, harassment, or violence if ADR is facilitated incorrectly.
Women have faced historical and systemic barriers when it comes to labor rights; however, it is critical to recognize that varying levels of access to opportunities and overall privilege have hindered women of color compared to their white counterparts. As history continues, these precedents are further clarified and classified. One significant movement that emerges is worker rights for women who are affected by these policies and precedents but not fully accounted for in their application. For instance, the question at hand in West Coast Hotel Company v. Parrish (1937) was whether the minimum wage for women violated the Due Process Clause of the Fifth Amendment – in which the court ruled that the establishment of minimum wages for women was constitutional. However, this case also upheld the constitutionality of state minimum wage legislation, and further was used to invalidate numerous worker and consumer protections. This language in the case was noteworthy because it appealed to infantilization of female workers and their capacity to fulfill occupational responsibilities.
The Equal Pay Act has also been historically used as a tool for determining the fluidity of various protections. The Equal Pay Act, according to the Equal Employment Opportunity Commission, requires that men and women in the same workplace must be given equal pay for equal work that they complete. It sought to get rid of wage disparity based on sex, amending the Fair Labor Standards Act. The jobs don’t necessarily have to be identical, but they must be substantially equal.
Last, the Equal Pay Act states the following in their declaration of purpose: “The Congress hereby finds that the existence in industries engaged in commerce or in the production of goods for commerce of wage differentials based on sex- (1) depresses wages and living standards for employees necessary for their health and efficiency; (2) prevents the maximum utilization of the available labor resources; (3) tends to cause labor disputes, thereby burdening, affecting, and obstructing commerce; (4) burdens commerce and the free flow of goods in commerce; and (5) constitutes an unfair method of competition.” This declaration is significant because it contributes to the overall idea that gender discrimination should be viewed as dynamic in its consequences on wages, labor disputes, and commerce.
Corning Glass Works v. Brennan (1974) was the first Supreme Court case that applied the Equal Pay Act, addressing the allocation of proof in pay discrimination claims. In Corning, men worked night shifts and were paid more than female employees who were only allowed to work day shifts and were also paid less than their male counterparts. It was held that despite the two groups working at different times during the day, the working conditions were “sufficiently similar,” validating their claim of discrimination. Ultimately, the court answered this question in favor of those raising pay discrimination claims.
However, it is also significant to note that there are cases that used gender protections to also protect male caretakers. For instance, in Weinberger v. Wiesenfeld (1975), the Supreme Court held that gender-based distinction under the Social Security Act of 1935 violated the equal protection established by the Due Process Clause of the Fifth Amendment. This case and the justification for the court decision flipped gender dynamics on its head in the sense that it came out in favor of male caretakers. Accordingly, this case was important because it shifted gender dynamics in an objective way, disproving earlier conceptions about how women’s rights don’t benefit more groups.
Even as recently as 2020, the Equal Pay Act has been invoked in order to ascertain justice for gender inequalities that manifest in the workplace. In addition, the role of settlement has also been used as a monetary tool to censure companies that do not comply with the law. For instance, in EEOC v. Dell Inc. (2020), the EEOC sued for their violation of federal law by paying lesser wages to a female IT analyst than they paid to their male employees performing similar work that required the same skills and efforts. The case result was that they received 140 thousand dollars in settlements from the company.
Civil Rights and Labor
The Civil Rights Movement was an era under which Black Americans and allies in the 1950s and 1960s struggled and fought to gain equal rights under the law in the United States. While the Civil War had officially abolished slavery, the discrimination against Black communities took root new ways, manifesting in persistent violence against Black people, discrepancies in wages, and differences in access to fair housing, among other civil rights and civil liberties that were being compromised at the time (History, 2021). The movement was sparked and the Civil Rights Act was created to mitigate some of these institutional harms.
In addition, the Civil Rights Act also serves as a law that was used in historical cases to secure labor rights and other significant victories for gender equity in the workplace. The Civil Rights Act outlaws discrimination based on race, color, religion, sex, national origin, and later sexual orientation and gender identity. Among other salient categories, the Act ultimately prohibits racial segregation in schools and public accommodations, along with employment discrimination. The Act itself states the following about discernment of what classifies as labor: “A labor organization shall be deemed to be engaged in an industry affecting commerce if (1) it maintains or operates a hiring hall or hiring office which procures employees for an employer or procures for employees opportunities to work for an employer, or (2) the number of its members (or, where it is a labor organization composed of other labor organizations or their representatives, if the aggregate number of the members of such other labor organization)”. This distinction is important because it demonstrates what differentiates an official labor organization that engages in commerce as it pertains to discrimination.
In County of Washington v. Gunther (1981), the courts dealt with questions of discrimination and lower standards of protection pay according to the Bennett Amendment in Title VII of the 1964 Civil Rights Act. The Bennett Amendment is a provision that limits sex discrimination claims, stating that employers can differentiate based on sex during compensation if it is authorized by the Equal Pay Act. Here, the question at hand was: did the court make a mistake in deciding female prison guards were not prevented from suing the county to push back against discriminatory compensation? The answer to the question was no. It was held that the Bennett Amendment did not restrict Title VII’s aim of prohibiting sex-based wage discrimination pertaining to equal pay; these claims could be brought under Title VII even though no member of the opposite sex holds an equal yet higher-paying position.
The Fair Labor Standards Act also became relevant here. As the court stated in their opinion for County of Washington, “On its face, the Equal Pay Act contains three restrictions pertinent to this case. First, its coverage is limited to those employers subject to the Fair Labor Standards Act. S.Rep. No.176, 88th Cong., 1st Sess., 2 (1963). Thus, the Act does not apply, for example, to certain businesses engaged in retail sales, fishing, agriculture, and newspaper publishing. See 29 U.S.C. §§ 203(s), 213(a) (1976 ed. and Supp.III). Second, the Act is restricted to cases involving ‘equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions’.”
Sex-based discrimination continued to become another salient component, applied in different circumstances. For instance, in Hishon v. King and Spalding (1982), it was ruled that a law firm was subject to Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of sex, in the decision to promote an associate to partner. Essentially, the court rejected that the firm’s right of association meant that such a right could be used to enact promotion decisions based on gender discrimination.
In Dothard v. Rawlinson (1977), the bona fide occupational qualifications defense was used for the first time. In other words, it is a defense that a company can assert if someone was hired, fired, or promoted based on a “protected characteristic”. Do the height and weight requirements violate Title VII? and Does the ban on women in “contact positions” violate Title VII? were the two questions being asked, to which the answers were yes and no. The height requirement excluded 41 percent of females in the nation.
In addition, sexual harassment emerges as an issue inextricably linked to workplace rights. In Meritor Savings Bank v. Vinson, the Supreme Court ruled that sexual harassment is a violation of Title VII of the Civil Rights of 1964. It is here that the overall meaning of Title VII was invoked to set precedent. Title VII, the court ruled, was "not limited to 'economic' or 'tangible' discrimination," finding that Congress intended "'to strike at the entire spectrum of disparate treatment of men and women in employment”. These cases, and many more, lay the groundwork for how women’s rights intersect with labor movements—establishing precedents that can be explored and contemplated in the context of the unpaid internship movement. Ultimately, the civil rights movement and the subsequent legislation that followed paved the way for other marginalized groups who built on their legal momentum.
It is also important to look at the classification of other identities and their protections, such as age-based discrimination in the workplace. Age-related discrimination complaints were focused on terminations rather than hiring disputes, issues of harassment, or discrepancies in wages. The Age Discrimination Act of 1975 prohibited age-based discrimination in programs that are recipients of federal financial assistance; something important to underscore here is that the act applies to all ages. While the original 1967 law applied to workers between the ages of 40 and 65, subsequent amendments raised and eliminated the upper age limit. This move ended mandatory retirement for all workers. However, the Age Discrimination Act does not cover employment discrimination, as such complaints are directed to the Equal Employment Opportunity Commission.
In addition, the Age Discrimination in Employment Act is a labor law that bans employment discrimination against anyone older than 40 years old. As the Act itself states, “It shall be unlawful for an employer to discriminate against any of his employees or applicants for employment, for an employment agency to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because such individual, member or applicant for membership has opposed any practice made unlawful by this section, or because such individual, member or applicant for membership has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter.” The law was created in the interest of protecting older workers who experience age-based discrimination as it pertains to long-term employment outcomes, along with other discriminatory burdens which hinder their right to further economic mobility. Further, the Act was intentionally established to promote the employment of older workers in ways that focus on their ability to perform rather than their age.
Concerning other instances of age-based discrimination, however, there are other notable civil action lawsuits under which monetary compensation was received by the plaintiffs who sued. As mentioned, the U.S. Equal Employment Opportunity Commission continues to be a champion for this kind of work discrimination victims, as evidenced by the multitude of cases they have taken on and ultimately secured compensation for. For instance, in EEOC v. Hawaii Healthcare Professionals, Inc (2012), the EEOC sued on the grounds that a 54-year-old coordinator had their employment terminated due to their age after the defendant’s owner told their manager to fire the plaintiff because she "looks old, sounds old on the telephone," and is "like a bag of bones." The case was settled for $193,236 in monetary relief and injunctive relief.
In EEOC v. Tempe Elementary School District No. 3 (2011), the EEOC argued that the plaintiff and their fellow group of retired employees were discriminatorily compensated for accrued leave according to their age. Specifically, the policy was that employees that retire at 61 years or older were compensated for accumulated leave at lesser rates than the rates paid to younger employees retiring between 55 and 60 years old. The case was settled at $148,162.53 for 49 class members and injunctive relief which included training and revision of the current retirement policy.
In EEOC v. 3M Company (2011), the EEOC argued that 3M laid off hundreds of employees over 45 years old unlawfully during a series of nationwide reductions in force (RIFs). Older employees in the case were denied leadership training and were laid off so that younger leaders could come in. The case settled for $3 million in monetary relief to about 290 former employees, along with injunctive relief. In the case, the EEOC argued that the case was a violation of the Age Discrimination in Employment Act (ADEA).
In terms of comparing and contrasting the utility of these various acts, the Age Discrimination in Employment Act was intentionally created to support those older than forty and therefore has been used in combating ageism as it pertains to older employees. The Age Discrimination Act of 1975, on the other hand, applies to all ages. Thus, the Age Discrimination Act of 1975 may be more applicable to the unpaid internship movement in the sense that because it applies to all ages, it can fit the internship framework which is typically inherited by (and used to economically demobilize) young people.
Last, independent contractors are another group with a comparable legal history pertinent to the discussion of unpaid interns. Independent contractors are non-employees and are not seen as formal employees for the places they work for under contract. Independent contractors go back to before the 20th century, and have gained national attention in the last few years due to the unique media exposure they have received. While the NLRA and FLSA guaranteed unions, minimum wage, overtime pay, and didn’t allow minors to work, the 1099 tax form emerged in 1917 which is what independent contractors used. The utilization of independent contractors was compelling in the sense that avoided fixed costs and provided for more flexibility, along with lower hiring costs. In 1978, Congress created “safe harbor” rules for independent contractors under Section 530 of the Revenue Act of 1978; Section 530 allows for businesses to have guardrails, allowing for multiple reasonable ways to classify a worker as a 1099, which constitutes as judicial precedent, practice in a specific industry or a previous IRS audit (Bunker 2019).
In Dynamex Operations West, Inc. v. Superior Court (2018), the California Supreme Court restricted the use of independent contractors. In this case, the court reinterpreted and rejected the Borello test for determining whether workers are employees or independent contractors. The court took on the standard presuming that workers are employees rather than contractors. In S.G Borello and Sons, Inc. v. Department of Industrial Relations (1989), the court showed that the “common law and statutory purposes of the distinction between employees and independent contractors” have a significant difference. The Workers' Compensation Act (Act) extends only to injuries suffered by an "employee,” which does not include independent contractors.
In Vasquez v. Jan-Pro Franchising International, Inc (2021), the question regarding the retroactive application of the “ABC” test for deciding employee vs. independent contractor status was answered. For context, the ABC test has three tiers that are pertinent. An individual performing any service shall be considered an employee and not an independent contractor, unless the individual is free from control with the performance of the service, the service is performed outside of the usual employer’s business, and the individual is engaged with an independently established trade, occupation, or business. The ruling meant that the cases would be governed under the “ABC” standard instead of Borello.
At this point in the discussion, Proposition 22 becomes incredibly relevant. In Castellanos v. State of California (2021), Proposition 22 was dealt with; for context, during the 2020 election,
Proposition 22, which was known as the "App-Based Drivers as Contractors and Labor Policies Initiative," was approved in the general election in 2020 by California voters. It defined transportation and delivery drivers who are app-based as independent contractors, adopting specific labor and wage policies for drivers who work for companies like Uber, Lyft, and DoorDash (Probasco, 2021, p. 4).
Assembly Bill 5 has also emerged in the past few years as another salient structure relevant to independent contractors, different from Proposition 22. As Assembly Bill 5 states, “This bill would state the intent of the Legislature to codify the decision in the Dynamex case and clarify its application. The bill would provide that for purposes of the provisions of the Labor Code, the Unemployment Insurance Code, and the wage orders of the Industrial Welfare Commission, a person providing labor or services for remuneration shall be considered an employee rather than an independent contractor unless the hiring entity demonstrates that the person is free from the control and direction of the hiring entity in connection with the performance of the work, the person performs work that is outside the usual course of the hiring entity’s business, and the person is customarily engaged in an independently established trade, occupation, or business.”
In People of California v. Uber Technologies (2020), the state brought a civil action against Uber and Lyft that stated these companies had not properly classified drivers as employees, deeming them independent contractors. Accordingly, these benefits they were entitled to were denied from them. The court of appeal essentially restrained companies from classifying their drivers as independent contractors. The relationship between independent contractors and the workplace is pertinent to the discussion of unpaid interns because of the loopholes that exist to keep them from attaining formal employment status, along with how the courts have decided on their status.
All of these identities provide prime examples of how various constitutional precedents, such as the Fifth Amendment and the Fourteenth Amendment, are violated in the workplace. Often, such cases have to be reargued in front of the court in order to receive collective validity by their respective actors. In addition, they are often used to further oppress various groups, under the same guise of satisfying equality.
National Labor Relations Act
The National Labor Relations Act (NLRA) is significant in that it guarantees the right of employees in the private sector to organize into trade unions, participate in collective bargaining, and strike, along with other forms of collective action. The law sought to encourage collective bargaining between trade unions and employers as a way to shift power inequities from the relationship between employers and employees. However, the Act also bans company unions. The NLRA does not cover government employees, agricultural laborers, independent contractors, and supervisors. Employees at union and non-union workplaces are protected by the NLRA. The National Labor Relations Board was also designed to help assist with the costs of litigation and other collective bargaining issues.
In addition, the NLRA established a series of classifications for unfair labor practices. The law outlaws employer interference with employee rights pertaining to freedom of association, self-organization, mutual aid, collective bargaining, and the right to choose representatives that best reflect an employee’s needs. It outlaws discrimination as it relates to hiring and firing, as well as how employers deal with membership in labor organizations. The Act ensures that employers are held accountable for their position of power, making it so they must bargain collectively with the representative of their employees.
Groups which are excluded from coverage under the NLRA include public-sector employees, agricultural and domestic workers, independent contractors, workers employed by a parent or spouse, employees of air and rail carriers covered by the Railway Labor Act, and supervisors. These groups provide evidence that communities which have been additionally economically marginalized through the types of work they are subjected to (and the kinds of opportunities available)—whether it be house work, farm work, manual labor, or other forms of harsh employment—receive less labor rights and protections, under the NLRA.
The National Labor Relations Board, while they’ve been champions for progressive change in several cases historically, has held back internship rights. In 2019, the NLRB decided that a group of employees advocating for unpaid interns were not engaged in protected activity because the interns were not employees, as determined by Section 2(3) of the NLRA. This decision came on top of a long term precedent established by the NLRB that those who do not receive economic compensation are not statutory employees. In addition, the board rejected the application of a test defining employees which the Department of Labor (in conjunction with many courts) decided upon for unpaid interns under the FLSA.
The employer who was involved in the court case was a non-profit organization with 25 employees, along with 15 unpaid interns. The interns created a petition demanding compensation for their volunteer hours. When a unionized employee advocated on their behalf, the employer was receptive to the idea of compensating them for their volunteer hours. However, when the employer found out about this development, the employer’s representative expressed that due to their neglect of the open-door policy, the petition in of itself was adversarial. The Department of Labor for this case decided that the unpaid interns in question were indeed employees of the organization, and thus entitled to their own advocacy efforts which fall under employee rights. However, the NLRB ultimately reversed the decision, explaining that they would be reaffirming a more than 20 year old precedent and established principle that unpaid workers are not employees because they are not expecting compensation from their employer and therefore do not qualify for the Act’s protections. The case also affirmed decades old precedent that unpaid interns are not protected, cannot unionize, and therefore, are not at liberty to petition their concerns.
The NLRA has not been effectively utilized as a tool for securing paid internships because of the Act’s inability (in partnership with their national board) to perceive interns as a protected class. The most recent case in 2019 further proved the ineffectiveness of this piece of legislation to adapt to the context of this unique issue. Therefore, unpaid internships, like some other forms of labor, cannot be addressed through the Act because they are not seen as employees—as evidenced by these decisions.
Fair Labor Standards Act
The Fair Labor Standards Act (FLSA) was created to mitigate the effects of the Depression in the 1930s as part of President Roosevelt’s New Deal legislation. Since, the FLSA has been used to secure rights for wage-earners in a variety of industries. The FLSA establishes minimum wage as it pertains to employees in the private sector and Federal, State, and local governments. It ensures “overtime pay at a rate not less than one and one-half times the regular rate of pay is required after 40 hours of work in a workweek”. Last, it prohibits the employment of minors in child labor that seeks to be oppressive, with the age requirement for employment being 14 years old. The FLSA applies to employers involved in interstate commerce with annual sales reaching $500,000 or more.
The FLSA has experienced changes from its initial inception. The minimum wage has increased several times, and various populations have been both added and taken away from FLSA regulation. Further, the FLSA has been historically utilized to aid certain groups in efforts to establish minimum wage and restrictions on overtime work abuse; however, it is also significant to note that other groups, such as agricultural workers, have also been left behind (and later had some of their rights extended in limited capacity). Certain groups of agricultural workers are exempted from the FLSA's protection of overtime pay (Canny, 2005, p. 8). In 1966, the FLSA's protection of a minimum wage was extended to employees in agriculture and agricultural processing with the protection of overtime compensation extended only to agricultural processing employees. However, the exclusion of agricultural workers from the maximum hours and overtime protections is still there (Canny, 2005, p. 11). Last, according to the FLSA, any employer in agriculture who does not use more than 500 man days of agricultural labor in a calendar quarter is exempt from minimum wage and overtime pay provisions of the FLSA for the current calendar year.
There are other groups and organizations exempt from the FLSA. Religious organizations and churches, for instance, are exempt from the FLSA. A priest or a nun who vows to stay in poverty cannot later sue for wage theft or unpaid overtime (Mahany, 2016, p. 1). Other members not covered in the FLSA are election officials, their personal staffs, policy making appointees, and legal advisors, as long as their state or local governments don’t have civil service laws which they are subject to. There are also exemptions for white collar workers, along with Executives and Administrative exemptions. 29 C.F.R. § 541.0 of the Fair Labor Standards Act provides “an exemption from the act’s minimum wage and overtime requirements for any employee employed in a bona fide executive, administrative, or professional capacity.” 29 C.F.R. § 541.400 provides “a possible exemption from the minimum wage and overtime requirements for computer system analysts, computer programmers, software engineers, and other similarly skilled computer employees.” Bona fide administrative and professional employees can be paid on a fee basis rather than a salary basis (MTAS, 2021, p. 1). The Department of Labor uses the example of an artist paid $500 for a picture which took 20 hours to finish, which would meet minimum salary requirements for exemption.
Most noteworthy to this project is FLSA’s exclusion of interns as employees under who gets coverage. Interns may not be employees under the FLSA, and therefore, the FLSA does not mandate compensation for their work. Courts have typically utilized a “primary beneficiary test” to determine whether an intern is classified as an employee. The seven factors below constitute this test:
The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.
Many courts have described the primary beneficiary test as a flexible test under which not one factor can determine whether one is considered an employee. Thus, whether one receives an FLSA classification is dependent on how the case falls situationally. If subsequent analysis demonstrates that an intern is an employee under FLSA, they are entitled to both minimum wage and overtime pay under the FLSA. Conversely, if the analysis confirms that an intern is not an employee, they are not entitled to those benefits.
Ultimately, it has become increasingly clear that the Fair Labor Standards Act significantly excludes several groups that would benefit from its labor protections. In addition, the ambiguity of the language does not help in differentiating what is a positively professional experience vs. a negative one. In light of these flaws, the FLSA has been used to secure labor rights, including but not limited to fight the induction of child labor and secure minimum wage laws. However, conclusively speaking, the FLSA has not been a tool utilized effectively to secure rights for interns and collective pay for them as a group, as evidenced by Walling v, Portland and Glatt v. Fox Searchlight Pictures Inc—both cases where intern rights were significantly scaled back in irreparable ways. In order to move forward with addressing the unpaid internship complex, we must first recognize that not only does the FLSA fail to include interns successfully –it is not holistic in its overall coverage of all categories of employees.
The unpaid internship movement serves as an indirect yet salient pipeline to workplace injustice. The unpaid internship movement (and its strides to secure all internships as paid) is informed by all of these movements, even if traditional discussions of unpaid internships have never formally considered its role in labor inequity. Discrimination, harassment, and lack of formal status are all challenges unpaid interns face, along with a lack of compensation. Despite recent increased attentiveness paid to its incongruity with progressive ideals, unpaid internships are normalized in society on a larger scale.
All of these labor movements discussed each had their own “cultural switch” moments where suddenly labor practices that had been well undisputed became egregious in public light. So, the success of a labor movement is predicated on two main components: how society mobilizes to expose and address its disparities, and how the courts codify or challenge those disparities through legislation. It is unclear when that cultural shift for unpaid internships will happen, but in the interim, there is much to glean from these other labor movements.
Internships have evolved from historical apprenticeships, and the same language used to infantilize those in such learning positions has been used in many power dynamics – as evidenced by this project’s legal case study analysis. Over time, the little benefits offered to those in apprenticeship roles have become virtually none for unpaid interns, such as housing and food. The perks of “learning the ropes” of an industry is used to justify exploitative practices, like not offering compensation for unpaid interns; while the unpaid internship is today’s modern day apprenticeship, it has become chameleonic with other labor inequalities.
Walling v. Portland Terminal Co. and Glatt v. Fox each set the movement back significantly by creating an irreversible distinction between interns and employees; such a classification normalized and justified a differentiation in treatment. Glatt v. Fox was all the more damaging to the vitality of the movement – by emphasizing the allure of educational benefits, while simultaneously creating distinctions between interns and employees, the case cemented unpaid internships as a necessary form of labor. The EEOC becomes introduced into the conversation early on since they have been a larger champion of labor rights, especially when it comes to civil suits; however, they are also a perfect example of how the progressive ideals of labor have failed to account for how internships are some of the earliest forms of labor inequities. The EEOC, despite their mission, values, and historic labor wins, does not pay their interns.
Women and their fight for equal pay has become intrinsically linked to other movements in favor of working mothers, along with those which looked to end pregnancy discrimination, and sexual harassment. This relationship shows how the politics of infantilization were at play in order to subject victims of gender discrimination to additional hurdles. Through cases like West Coast Hotel Company v. Parrish, it was upheld that women were deserving of different wages than their male counterparts due to the fact that they require wages which can “be adequate for their maintenance”. The takeaways from equal pay as a whole are that the detractors of the movement were appeals for women to stay at home, to preserve domestic life, and to continue to be caretakers versus being seen as equal in the political economy. Similarly, with unpaid interns, young people are told they should focus on being students first, deal with how they are treated, and not speak up—which is used typically to normalize their mistreatment. Rather than fighting for pay or better treatment, their workplace experiences are put on a pedestal for their learning material.
The civil rights movement and its relation to labor rights also has lessons which can be borrowed to better understand the complexities of the unpaid internship movement context. Whether it was Dothard v. Robinson or Meritor Savings Bank v. Vinson, questions of race or sex based discrimination have been tackled in the courts before in the context of understanding the limits and bounds of discrimination. Most of the court majorities articulated aspects of discrimination which had not been considered before; whether it was height difference or sexual harassment, it became increasingly clear that prejudice could exist outside of typical structures of racism and sexism which people had only seen it manifest in. The unpaid internship complex is a microcosm for such inequities.
Surprisingly, despite the development of legislation which sought to tackle ageism, such as the Age Discrimination Act of 1975 and the Age Discrimination in Employment Act, young people have been left behind in these discussions, which also has led to consequences for addressing the unpaid internship movement considering most young people take on these positions. Victims of age based discrimination who ultimately took their challenges to the EEOC often experienced stereotypes about how old they were as a justification for limiting their access to further economic mobility and general opportunity. Similarly, the unpaid internship structure would not exist without the stereotypes that exist about young people, some which have been couched in euphemistic language. Such language often emphasizes that interns are young and inexperienced, so they should take on whatever opportunities come their way to learn from those older than them, and that young people tend to be more sensitive than their older counterparts and therefore should put up with poor treatment. The language of “opportunity” contributes to a culture where young people are hesitant to come forward about their harassment as interns in these workplaces.
Independent contractors and the rights they’ve secured—but more importantly, the way they have been classified as separate than employees—becomes relevant to the discussion of unpaid interns. In addition, due to the fact that they have been historically and contemporarily utilized to avoid fixed costs and have additional flexibility—they can easily be compared to unpaid interns, who are hired for similar reasons and are given no compensation. Last, prison labor as a system seeks to prioritize the economy over the rehabilitation of inmates, seeing prisoners as less valuable than other members of society and therefore subjecting them to these workplace conditions and practices. Disproportionately affecting people of color, prison as a structure has continued historical slavery practices. Prison activists would not be able to draw attention to these conditions without a reckoning of intersectionality.
The NLRA and FLSA have overwhelmingly not been able to secure labor rights for those most marginalized, such as agricultural workers, domestic workers, and of course prisoners. More recently, however, these two pieces of legislation have been static in the sense that they do consider interns to be real employees— and if by chance an intern would like that formal classification, there are several barriers which hinder their ability to do so. In summation, the movement to make all internships paid will not reach its full potential until society, especially progressive communities, understand its disproportionate impacts on race, sex, and class. In the same way that the fight for equal wages has incentivized organizations to make strides to pay their employees equally, a similar commitment to making the internship workforce equitable must animate the budget and cultural expectations of each organization. Even if the courts reverse precedents like Walling v. Portland Terminal Co. and Glatt v. Fox, it will be a while before national legislation exists which sees interns as employees with a right to compensation.
For so long, the movement to make all internships paid focused on erroneous components. The movement argued that unpaid internships are unfair to those who are financially disadvantaged, and that barriers to access made it so that only white, upper class could participate. While this may be true, it is becoming increasingly clear that it is more likely for those who are marginalized to have unpaid internships over their wealthier, white counterparts. The discussion has been misplaced about why it is important to end unpaid internships—no one should be doing them, and marginalized communities who will continue to suffer under labor structures are experiencing their harms disproportionately.
This transition necessitates an intersectional approach. The language of infantilization is present in the majority of these movements—by portraying employees as needing care and help in order to further justify the discriminatory behaviors on behalf of their employers. What can be learned from the history of American labor movements and the incremental progress obtained through the courts is that labor law cannot be extended to interns until they’re considered employees. Like all of these other groups that have been discriminated against in the workplace, there needs to be a cultural shift which suddenly values them in the same way other groups systematically oppressed are seen.
Advocacy and activism have inspired significant action against addressing the harms of unpaid internships, perhaps most notable being the work of Pay Our Interns. In recent months, Pay Our Interns was responsible for the White House paying interns for the first time, the creation of AB 2437: The California Pay Our Interns Act to Pay State’s Executive Branch and Legislature Interns, and the securing of almost $40 million in ensuring White House, State Department, and House Committee interns are paid. While Pay Our Interns does do work pertaining to internships outside of the government and public policy sector, other organizations need to support their existing work to ensure that similar funding and attention is paid to other sectors equally vulnerable to the unpaid internship complex.
The FLSA and NLRA have not been able to help interns achieve compensation and full workplace equity. Accordingly, more states need to enact legislation similar to California’s Assembly Bill No. 1443, which codifies the idea that harassment of unpaid interns is an unlawful employment practice. In addition, compensation for internships should be mandatory for job boards to post them, controlling who can apply and therefore creating public pressure. Colleges and universities should enact policies within their career services offices that prioritize working with companies and organizations that pay their interns over the alternative.
We should enact legal penalties for organizations and companies who do not comply with these ethics, creating brand new national legislation more radical than California, Oregon, Illinois, and New York’s. Such penalties may look like fining organizations and companies above a certain tax bracket, increasing fines for each additional intern that goes unpaid. Until there is a cultural shift which sees unpaid interns as incongruent with progressive ideals, the unpaid internship system will continue uncontested.
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