When college students consider whether to accept an internship with a company, typically they look at numerous factors: is the company reputable, is it in a nice area, is it in their field of study and is it a paid or unpaid internship.
In the future, college students need to take a closer look at whether or not an internship is paid.
Not only do unpaid interns miss out on wages, they also miss out on other employment benefits.
In general, people working at an unpaid internship are not protected under employee protection laws. Under Title VII of the Civil Rights Act of 1964, as amended, because unpaid interns do not receive a paycheck or other remunerations, they are not classified as employees and thus are not protected by the act.
The rights of unpaid interns are also not protected under the Age Discrimination in Employment Act or the Americans with Disabilities Act.
This may not seem like a big deal to some, but if you are an unpaid intern and get sexually harassed, do not expect justice through the courts.
As recently as this month, in a federal district court in New York, Lihuan Wang lost a sexual harassment lawsuit because she was an unpaid intern and not considered an employee of Phoenix Satellite Television U.S., an American branch of a media conglomerate based in Hong Kong.
This is not the only time a court has thrown out a sexual harassment case brought by an unpaid intern. Bridget O’Conner had her case against Rockland Psychiatric Center dismissed for the same reason and furthermore saw a federal appeals court affirm the decision to throw the case out.
In York v. Association of the Bar of the City of New York, in Lipphold v. Duggal Color Projects and in Thomas v. Parker, unpaid interns or volunteers saw their cases denied and thrown out because the person was unpaid and was not considered an employee of the company.
It is important to note that none of the laws mentioned explicitly exclude unpaid internships. In fact, most of them use the word “people,” not “employee,” when talking about protections. However, the courts have repeatedly ruled as if the laws read “employee,” not “people.”
Only one state, Oregon, has taken any actions to extend protection to unpaid interns. It is time that all state legislatures as well as Congress take actions to protect unpaid interns. No one deserves to be subject to sexual harassment without any legal recourse. This is the 21st century, not the pre-Civil War in the South.
Sexual harassment is never OK and should never be tolerated. It is unfathomable that judges and the judicial system would not protect people from being subjected to sexual harassment.
If companies would stop using free labor under the guise of an unpaid internship and would pay the interns, then those interns would be covered by the law and would have legal recourse in cases of sexual harassment.
Furthermore, unpaid internships are really just a way to exploit workers.
Under the Fair Labor Standards Act, there are numerous regulations that govern minimum wage and overtime for U.S. workers, which include interns.
There is a six-factor test used by the Wage and Hour Division of the Department of Labor to determine if an intern in the private sector must be paid minimum wage.
For an unpaid internship to be legal, it must meet all six of the criteria:
- The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment
- The internship experience is for the benefit of the intern
- The intern does not displace regular employees, but works under close supervision of existing staff
- 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
- The intern is not necessarily entitled to a job at the conclusion of the internship
- The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
Since most companies use interns instead of hiring additional employees and since most corporations that use interns get tangible benefits from the work performed by the intern, it is likely that most unpaid internships violate the law, and interns should be paid.