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Hastings Law Journal

Abstract

Unpaid internships are increasing in the United States, and one can surmise that they will become even more common as the economy continues to deteriorate. Most internships are not paid, especially in "glamorous fields," such as politics or entertainment. Instead of wages, the company offering the internship promises the candidate "great experience" and an opportunity to get his foot in the door. Because employers respond favorably to internship experience on a resume, individuals see internships as increasingly necessary to be competitive in the job market. But without being paid, low-income individuals often cannot afford to take them. This raises a troubling class divide between entry-level jobseekers who can afford the luxury of unpaid experience and those who cannot. Because employers may decide to hire unpaid interns instead of paid laborers, unpaid internships also indirectly contribute to rising unemployment.

These serious problems are exacerbated the extremely convoluted and unclear nature of the federal law governing unpaid interns. Under current federal law, it is often difficult to tell whether an internship is illegal, and to even know where to begin in suggesting change. Indeed, suggesting change to the law governing unpaid interns begs the question: what law?

This Note urges the Wage and Hour Division of the Department of Labor to promulgate a rule that will create an explicit "intern-learner" exemption to the FLSA, similar to the current "learner" exemption. This new rule will benefit both interns and businesses, by clarifying that anyone who qualifies as an "employee" for purposes of the FLSA must be paid minimum wage, but allowing employers who create an approved "intern-training" program to pay their interns slightly less than minimum wage. This will subject internship programs to regulation by the Department of Labor and ensure that all who are legally entitled to wages receive payment, ultimately leading to a decrease in unpaid internships nationwide.

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