Labor & Employment

As Feds Cast Wary Eye on Unpaid Interns, Positions Proliferate, Some Aimed at Law Grads

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A recent New York Times article about the proliferation of unpaid internships appears to be eliciting a reaction of resigned acceptance rather than a backlash against employers who expect law students and even law graduates to work for free.

As the article explains, standards (PDF) developed by the U.S. Department of Labor’s Wage and Hour Division substantially limit the extent to which unpaid internships can be offered.

For example, they state that the employer must derive “no immediate advantage” from the intern’s work. Further, the internship experience is supposed to be equivalent to vocational school training and does not displace regular employees from their jobs.

However, an ABA Journal review of recent legal job postings on the Craigslist website revealed a number of internships that were seemingly indistinguishable from ordinary jobs except for the fact that they are, to put it bluntly, unpaid.

Among them, a New York firm offers unpaid law grads a “Pre-Hired Internship” opportunity to “gain experience in all aspects of litigation practice,” working directly with lawyers and receiving training about how to evaluate and research cases, draft written correspondence and court filings, and interview clients and prepare for trial. Participants can expect an evaluation and an exit interview, the job posting notes, and will receive a “strong letter of recommendation” if they successfully complete the internship program. They will also be considered for any paid job openings the firm may have, according to the ad.

Meanwhile, although some states and the federal Wage and Hour Division are reportedly stepping up enforcement of potential violations by companies of all descriptions that are offering unpaid internships, it appears from comments on Above the Law that law graduates may be resigned to the seeming necessity of such learning experiences. And it could be worse, one ATL poster notes:

“Unpaid internships seem nice compared to what is peddled at my top-20 law school: the pay-to-work ‘externship.’ All you need to do is pay for three pricey summer credit-hours (pass/fail so that they’re not actually good for anything), and you too can work the copy machine at some legal department.”

Camille Olson, a Chicago practitioner who represents employers, says revision of the labor department internship rules is what’s really needed to address the situation appropriately. The “no immediate advantage” criterion in the Wage and Hour Division standards “is hard to meet and needs updating,” she tells the Times.

“In my experience, many employers agreed to hire interns because there is very strong mutual advantage to both the worker and the employer. There should be a mutual benefit test.”

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