Why Do We Work for Free?

By: Joseph Gaon

On Friday February 15, 2013, A former unpaid intern at Elite Model Management Corp. slapped the agency with a proposed $50 million class action, claiming Elite violates wage laws by requiring its interns to do the work of employees for no pay. [1] In a her Federal complaint former intern Dajia Davenport alleges that the self-proclaimed “world’s most prestigious modeling agency” runs afoul of federal and state wage statutes by intentionally misclassifying employees as interns to get out of paying them wages and overtime.[2] This type of practice is common in the fashion industry. Last March the integrated-media giant Condé Nast set out to reform their internship policies in order to confront the controversies of not paying their interns.[3] One intern at Condé Nast was looking forward to writing for the company and when asked what her experience was like she exclaimed, “I really wasn’t given a chance to do anything except make copies and do deliveries.”[4] The same intern said that she was working 30 hours a week, getting paid nothing except a $550 stipend to cover a travel expense, and the job opened minimal doors for her upon graduation.[5]

This type of work is not only common in the fashion industry, but is also common in the legal work place as well. From my experience alone the number of law students who are willing to work for free just to put something on the resume is staggering. Why do we do this to ourselves? We are seeking “real world” job experience that will boost are resumes, but are these practice fair or legal?

The FLSA definition of an employee is a person “employed by an employer” and defines “employ” as “to suffer or permit to work.”[6] In Walling v. Portland Terminal Co. , [7]the Supreme Court held that an individual who “without promise or expectation of compensation, but solely for his personal purpose or pleasure, worked in activities carried on by other persons either for their pleasure or profit” is not an employee for purposes of the FLSA. This undercuts many provisions that are present in the FLSA even though the Supreme Court believed that the training was a necessary prerequisite for employment in the field.[8]

In April 2010, the Labor Department issued a “Fact Sheet” reiterating  “six factors” that had long been included in the Wage and Hour Division‘s Field Operations and set forth guidelines for unpaid internships.[9] The six factors include 1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training that would be given in an educational environment; 2. The internship experience is for the benefit of the intern; 3. The intern does not displace regular employees, but works under close supervision of existing staff; 4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded; 5. The intern is not necessarily entitled to a job at the conclusion of the internship; and 6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship. [10]

The guidelines basically lie out that if an intern is working for free they cannot displace other employees and do their jobs, and are working a long side other employees helping them with their substantive work, and it was these “six factors” that differentiate between an intern and a trainee who does not have to be paid.[11] In order to satisfy the concerns of the Labor Department managers should be reminded that unpaid interns will be joining their department but they are their to learn about the work environment and what the job entails, and they are not their to supplement the workforce.[12] Over the last couple years that has been an increase in the amount of litigation surrounding unpaid interns, with case being filed in federal and state courts in New York that allege violations of federal and state wage laws.[13] With the increase in litigation over these issues, and the increase controversy over them, then why does it appear that the unpaid internship is not disappearing, and is actually becoming more prevalent because of the current state of the legal market?

Over the last two years it appears to me that most of the jobs posted on job sites are for unpaid internships because legal employers know that today’s job market is incredibly competitive, and that most law student will do anything in order to get a leg on their competition and become a viable candidate for postgraduate work. Most students seem to be happy to do unpaid work because that is all they can get, they and need the experience or they will not get jobs upon graduation. It seems like as law a student we are all too happy to do work that does not fall within the FLSA and its six guidelines. We are not trainees, but doing work that is either being billed for, or substantive work that we should be compensated for because it falls outside the “six factor” test. The question becomes how do we as law students band together and demand payment that we so

[1] Abigail Rubenstein, Unpaid Intern Hits Modeling Agency With $50M Wage Suit (Feb. 20, 2013 11:41 AM), http://www.law360.com/employment/articles/416466/unpaid-intern-hits-modeling-agency-with-50m-wage-suit-

[2] Id.

[4] Id.

[5] Id.

[6] Samuel Estreicher and Allan S. Bloom, Unpaid Internships Under Legal Scrutiny, New York Law Journal, (Jan. 4, 2013, available at http://www.newyorklawjournal.com/PubArticleNY.jsp?id=1202583208824&Unpaid_Internships_Under_Legal_Scrutiny&slreturn=20130123115420)

[7] 330 U.S. 148 (1947)

[8] Id.

[9] Id.

[10] See  U.S. Department of Labor, Wage and Hour Division, “Fact Sheet #71: Internship Programs Under the Fair Labor Standards Act” (April 2010), http://www.dol.gov/whd/regs/compliance/whdfs71.pdf.

[11] Id. at 2

[12] Id. at 3

[13] Id. at 2

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