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Biana Borukhovich Esq
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Rating: 5 / 5 stars

Unpaid Internship Disputes

Opinion Statement
Some of my most valuable work experience, whether its knowledge or work ethics, came from taking on free internships during college and law school. These experiences are priceless to me today because they truly gave me the opportunity to learn about the real practice of law and not to enhance my ability to make copies or file documents.

According to the U.S. Department of Labor, an unpaid internship is only lawful in the context of an educational training program, when the interns do not perform productive work and the employer derives no benefit. What makes an internship educational? Isn’t it when the intern does productive work during which he or she can learn how to apply their knowledge? Or is it when an intern gets school credit or money for learning new skills? When I finished law school, I realized that the purpose of law school is to condition you to think in a very grey way; to be able to see both sides to a situation. However, law school does not give you the ability to actually apply your knowledge to real life practice. This is where real life experience comes into play.

Furthermore, the U.S. Department of Labor states “If the employer would have hired additional employees or required existing staff to work additional hours had the interns not performed the work, then the interns will be viewed as employees and entitled to compensation under the FLSA.” The U.S. Department of Labor’s test is based on the United States Supreme Court’s 1947 opinion in Walling v. Portland Terminal Co., 330 U.S. 148, 152-53 (1947), which held that the FLSA’s definition of “employee” does not include participants in an educational or vocational training program that provides no immediate benefit to the employer and that serves only the trainees’ interests.

I do NOT condone or encourage child labor, slavery or the like. However, in every work situation, interns and externs are obtained in order to relieve the workload. Yes, many of these interns work a lot, but they learn a lot. I personally think that the foregoing laws take away from a student/individual the opportunity to expand their experience and resumes. In this current cruel economy, people need to stand out and to be given chances to learn new trades, which can potentially help them obtain a job in the future. I believe that it should be up to the interns and externs to figure out what is best for them.

Most of the courts obviously do not agree with my viewpoint. Between 2009 ansd 2010, Eric Glatt and Alexander Footman, had done work as unpaid interns connected to the movie “Black Swan”, where their duties included copying documents, maintaining takeout menus, assembling furniture, taking out trash and, in one case, procuring a non-allergenic pillow for the movie’s director, Darren Aronofsky. In 2011, these two men filed a complaint in federal court alleging that Fox Searchlight had violated minimum wage laws and seeking to receive compensation for their labor. I don’t understand, wasn’t it their decision to work for free? In 2013, Judge William H. Pauley III of Federal District Court ruled that Mr. Glatt and Mr. Footman should have been classified as employees, citing a set of six criteria put forth by the Labor Department in 2010. The department’s criteria indicate that, in order to qualify as an unpaid internship, the work must, among other things, be similar to training offered in a school setting, be performed for the benefit of the intern rather than the employer and not nudge aside that of existing employees. This ruling flooded the courts and led to over 35 claims by interns against the companies for whom they had performed uncompensated work. Many large employers, including NBC Universal and Viacom, settled such claims for millions of dollars rather than litigating them at length in court.

The appeals court vacated this decision, arguing that Judge Pauley had applied an incorrect standard for determining whether a worker should be classified as an employee rather than an unpaid intern. Appeals court Judge John M. Walker Jr. held that the Labor Department’s criteria were both out of date and not binding on federal courts. He argued that the proper way to determine workers’ status was to apply a “primary beneficiary test” — a concept proposed by Fox in which the worker can be considered an employee only if the employer benefits more from the relationship than the intern.

Again, this new test is also subjective and opens the gate to many more lawsuits in the future. Why can’t we all just make our own decisions of whether to take an unpaid position or not???

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