All Work, No Pay: Seeking Justice For Unpaid Interns, One Lawsuit At A Time
By Christopher Zara | February 2, 2013 9:44 AM EST
“It frankly just sickens me when I see these intern ads on Craigslist,” said Maurice Pianko, a New York lawyer and self-avowed defender of intern rights. “These employers are openly breaking the law.”
Pianko, a graduate of the Fordham School of Law, was referring to what has emerged in recent years as the defining labor issue of our time -- and the bane of honest, job-seeking Millennials across the country: unpaid internships.
For decades, unpaid internships have served as the standard entry point for college students and recent grads looking to transform themselves from greenhorns to professionals, at the accepted expense of not earning any green. But at some point after the onset of the recession, in 2008, the notion of spending one’s post-college years as a reluctant draftee of the free-labor pool suddenly didn’t seem so harmless. In fact, it began to appear downright exploitative. With youth unemployment hovering at its highest level since World War II, today’s college grads are more desperate than ever to forge professional connections. And businesses, equally desperate to salvage their dwindling bottom lines, are evermore tempted to take advantage of this labor pool.
It’s the status quo, Pianko said, that threatens to undermine “all of the labor progress we’ve made” in this country, and it’s one he hopes to put a stop to for good. Late last year, he launched Intern Justice, an online service through which he hopes to recruit a nationwide network of attorneys to file lawsuits on behalf of unpaid interns.
In December, Intern Justice facilitated its first case -- a lawsuit filed in Los Angeles on behalf of Karissa Labriola, who in 2011 worked for three months as a design intern at the fashion firm Brian Lichtenberg. According to the lawsuit, Labriola believes her unpaid internship violated the California Industrial Welfare Commission regulations that mandate a minimum wage of no less than $8 per hour and time-and-a-half pay for overtime.
Pianko said he first became aware of Labriola’s situation when the two connected on Craigslist. “I utilize a variety of social networking tools in order to reach out to unpaid interns,” he said. “The Labriola case is very specific, and obviously geared to a particular niche -- I had a specific attorney in mind to whom I reached out.”
That attorney, Emilia McAfee of Corona, Calif., took the case, which was filed in Los Angeles County Superior Court on Dec. 18. McAfee is seeking damages in the form of regular and overtime pay, as well as penalties for failing to provide meal and rest periods. Brian Lichtenberg did not respond to a request for comment about the lawsuit. Pianko, meanwhile, is still on the prowl, combing the Internet daily in his quest to play matchmaker between wronged interns and lawyers who want to defend them.
The Devil Wears Ralph Lauren
The controversy surrounding unpaid internships was first thrust into the national spotlight by three high-profile class-action lawsuits. In 2011, two unpaid interns who worked on the movie “Black Swan” sued Fox Searchlight for wages. Then in February of 2012, Xuedan “Diana” Wang, a former intern at the fashion magazine Harper’s Bazaar, sued the Hearst Corporation after logging what she described as four grueling months of 55-hour workweeks. The following month, a former intern sued the TV host Charlie Rose on behalf of herself and 188 other interns who say they worked on his PBS program without pay.
Pianko said Intern Justice will be different from those class-action cases in that it will focus on filing lawsuits for individual plaintiffs, not entire groups. But the outcomes of the Fox, Hearst and Rose cases are likely to have an impact on the overall climate for any future litigation involving interns. So far, all of the class-action intern suits are still pending with the exception of the Charlie Rose case, which was settled in December for $250,000. In the settlement, the host agreed to pay the interns $110 for each week they worked, but his concession has attracted criticism. Earlier this month, the Wall Street Journal’s Steve Cohen wrote that businesses -- fearful of similar labor disputes -- will now be less likely to hire interns at all.
And that’s bad, proponents of internship programs say, because internships are still one of the best ways for young people to break into competitive industries. It's true that, as an intern, you may spend your days fetching coffee and cleaning grimy keyboards, but in return you’ll gain valuable connections and resume-boosting experience. And if you have to work without a paycheck for a few months -- isn’t that called paying your dues?
“The one thing that bothers me about these lawsuits is that these interns know going into it that the internships are unpaid,” said David Lat, a lawyer and journalist and founder of the legal-news website Above the Law. “If you’re not okay with working for free, don’t take the internship.”
Lat, a graduate of Yale Law School and a former assistant U.S. attorney, said he “comes down the middle” on the internship issue, recognizing that it’s not as simple as saying all unpaid internships are inherently good or bad. He acknowledges that many are exploitative, but having had positive internships himself -- experiences that introduced him to the industries in which he now works -- he said that internships are just as often mutually beneficial to the employer and the intern.
As a whole, unpaid internships are not illegal, but employers who offer them must follow a litany of state and federal labor laws. For instance, according to the Fair Labor Standards Act, interns may not displace regular employees and instead must work under the close supervision of existing staff. The internship must be largely educational in nature, and employees may not lure interns with the promise of future employment.
Finally, perhaps the greatest sticking point is that the law says that employers may derive “no immediate advantage from the activities of the intern.” That puts employers like Charlie Rose in a dicey situation. His PBS program, known for meticulously researching its interviewees, may very well rely on the grunt work of cadres of unpaid interns, and if that’s true, it would be an advantage. And that’s illegal.
But while companies that depend on unpaid interns may be technically breaking the law, many industries have simply adopted a wink-and-nod mindset that allows them to continue. That may soon change in the wake of the aforementioned class-action suits -- and services like Intern Justice -- but even Pianko admits it will be an uphill climb, one that faces two major hurdles. First, internship cases have to prove to be worth lawyers’ time (“Right now we don’t know how lucrative they’ll be,” he conceded.) And second, interns themselves have to muster the courage to speak up when they find themselves in an exploitative environment -- something Pianko said doesn’t happen enough.
“They’re afraid if they say something they’ll never find a job again,” Pianko said. “I don’t pressure them, but I do let them know that this is just a labor dispute. It’s not going to ruin your career.”
Intern Justice Is Social Justice
When Pianko first began his law career, he didn’t imagine he’d one day become a crusader for intern justice. “I didn’t really have a strong opinion about the issue one way or the other,” he said.
But that all changed when he witnessed firsthand how unpaid internships foster what he believes to be an uneven -- and fundamentally unfair -- playing field for young job seekers. A few years ago, he’d become acquainted with two young law grads. One came from a well-heeled family and after college took an unpaid internship in a law office. The other, who was a mother raising a young child, was forced to take a job as a barista. Fast-forward to today, he said, and she is still making up for lost time.
“It kills me because she was actually more qualified,” Pianko said. “But she couldn’t afford to work for free. It made me realize that this is a social-justice issue. It affects minorities, single mothers.”
Although studies on unpaid internships are sparse, there is research to back up Pianko’s concerns. In a well-known 2010 report by the Economic Policy Institute, authors Kathryn Anne Edwards and Alexander Hertel-Fernandez argued, rather persuasively, that “the choice to take an internship is not only contingent on a student’s qualifications, but also his or her economic means, thus institutionalizing socioeconomic disparities beyond college.”
Studies aside, anecdotal evidence of internships as a socioeconomic issue has been building for years. Consider HBO’s hit drama “Girls,” which centers on a group of struggling twenty-something Brooklynites. When the series opens, Hannah, the lead character, works as an unpaid publishing intern, despite having been out of college for two years. After she is told by her parents that they will no longer fund her post-collegiate escapades, Hannah explains to her boss that she can no longer afford to work for free. His reply? “I’m really going to miss your energy.”
Many real-life youngsters know Hannah’s pain all too well, and for some of them, unpaid internships will never be part of the equation. “I simply couldn’t afford to do one,” said Yuni Kim, who eschewed the unpaid-internship route in 2010 when she was a student at York University in Toronto. “Bullet points on your resume won’t pay the bills.”
At the time that she was considering her options, Kim said she was fortunate to find freelance work at the Canadian current-affairs magazine Maclean’s, where she continues to write for the campus edition. “The money I make pays for my gas costs,” she said. “Something is better than nothing.”
But even though unpaid internships may seem self-selective against college grads who don’t have a trust fund to fall back on, many legal experts question whether it’s fair to blame unpaid internships for the fact that we live in an unfair world. “People of means are always going to have an advantage when it comes to advancing their human capital,” said Lat. “A person who can afford to buy an iMac and take college courses has an advantage over someone who can’t. That doesn’t mean we make iMacs illegal.”
To Pianko’s argument that unpaid internships perpetuate socioeconomic disparities, Lat conceded, “That’s a valid concern. The problem is, I don’t know if we could ever come up with a clear rule to prevent it.”
If all of this points to a world in which the ethics of unpaid internships remain frustratingly murky, Lat said he believes he has a simple solution -- one with which Pianko would no doubt agree. “If you pay the minimum wage, you can have them do what you want, and you won’t have to worry,” he said. “Just pay the darn interns.”
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