By Juliet Gobler
The downturn in the economy has made it the commonplace for students and recent graduates to apply, and some times fight, for unpaid internship positions with public and private employers. In addition, employers are implementing “cost saving” strategies, which include running “internship programs” rather than hiring additional or new employees. Students have traded-in expectations of monetary compensation for the expenditure of tuition dollars towards internships for academic credit. Often even expenses incidental to working, such as travel expenses for errands run during the workday, are not reimbursed. While some employers organize internships that provide a valuable educational experience, others are being brought to court for treating their interns like employees without the benefits of employment.
However, some interns are now taking a stand. On February 1st, a former full-time, unpaid intern for Harper’s Bazaar filed a lawsuit in Federal District Court in Manhattan against the fashion magazine’s parent company, Hearst Corporation, claiming it violated federal and state wage and hour laws. The plaintiff, Xuedan Wang, a 2010 Ohio State University graduate, and the firm that represents her plan to expand her action into a class action suit for hundreds of unpaid interns that worked for the defendant.
The plaintiff worked as an unpaid, full-time intern for the defendant for five months, working between forty to fifty-five hours per week. Wang, while receiving college credit, coordinated pickup and deliveries, managed other interns, maintained records, and processed reimbursement requests for corporate expense reports for Harper’s Bazaar.
Wang’s claim is that interns are treated more like entry-level employees, should therefore be compensated as if they were employees, not interns. Moreover, Wang’s claim asserts that the prevalence of hiring unpaid interns is limiting opportunities for employment, causing class divisions between those who can work for no wage and those who cannot, and is indirectly contributing to the rise in unemployment.
Like Wang, interns on the set of the film “Black Swan” filed a class action suit against Fox Searchlight. One of the head plaintiffs worked a minimum of forty hours per week for four months. His responsibilities included preparing coffee, ordering lunch, cleaning, and collecting receipts. The plaintiffs claim that Fox Searchlight violated federal Fair Labor Standards Act and New York State labor laws by using unpaid interns as free labor to keep the production costs down.
With regard to determining whether an intern must be paid the minimum wage pursuant to the FLSA, the United States Department of Labor created a six-factor test. These factors are: the internship is similar to training given in an educational environment, the experience is for the benefit of the intern, the intern works under close supervision of existing staff and does not displace regular employees, the employer does not gain an immediate advantage from the intern’s activities, the intern is not necessarily guaranteed a job at the end, and both the employer and intern understand the intern is not entitled to wages.
While the fashion and film industries have a long tradition of not paying interns, unpaid internships and post-graduation pro bono work is becoming very prevalent in the legal field. As clients are less willing to pay for legal work done by law students and new associates, paid legal job opportunities are decreasing. Will a prosperous economy and a stronger job market for lawyers in the future cause the competition for unpaid internship positions to dissipate?
 Steven Greenhouse, Former Intern Sues Hearst Over Unpaid Work and Hopes to Create a Class Action, N.Y. Times (Feb. 1, 2012), http://mediadecoder.blogs.nytimes.com/2012/02/01/former-intern-sues-hearst-over-unpaid-work-and-hopes-to-create-a-class-action/?scp=1&sq=former%20intern&st=cse.
 Christina Ng, ‘Black Swan’ Unpaid Interns File Lawsuit Against Fox Searchlight, ABC News (Sept. 29, 2011), http://abcnews.go.com/US/black-swan-unpaid-interns-file-lawsuit-fox-searchlight/story?id=14632803#.T0WSvsx1E00.
 Wage & Hour Div., Fact Sheet # 71: Internship Programs Under the Fair Labor Standards Act, U.S. Dep’t of Labor (April 2010), http://www.dol.gov/whd/regs/compliance/whdfs71.htm