The puzzle of the unpaid intern

Hollywood studios are in a bit of a spin over a lawsuit filed by unpaid interns. Although it dates back to September 2011, the suit is coming to a ruling later this year, and may reshape policy and practice far beyond the Hollywood Hills.

At issue is whether the Hollywood unpaid interns were really employees under federal law. According to a 2010 fact sheet from the U.S. Department of Labor, an individual is only an unpaid intern if all of the following criteria are met:

1. 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;
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.

In other words, unpaid interns should look like they’re part of an educational endeavor, not an employment contract. And the opportunity should be structured for the intern’s benefit, not the employer’s. The fact sheet is specifically focused on ‘for-profit’ private sector employers, for whom internships will ‘most often be viewed as employment.’ The same fact sheet softens the assumption for nonprofit and public agencies, saying ‘Unpaid internships in the public sector and for non-profit charitable organizations, where the intern volunteers without expectation of compensation, are generally permissible.’

For the nonprofit arts, however, it’s still complicated. If we call the unpaid helpers ‘volunteers,’ we’re subject to a different set of federal employment definitions. And if we aren’t clear about the nature of the position — that it’s unpaid, that it’s educational — we can still run afowl of misunderstanding at best, and labor litigation at worst (both Blue Avocado and Law for Change offer some helpful overviews on the subject).

While compliance is an essential element, the deeper issue is how our field considers the work and purpose of unpaid interns. By calling them ‘interns’ we invoke the larger promise of training and education, of making time, space, and effort to advance their professional capacity. But much of the time, we treat them as unpaid employees, doing work that would otherwise be done by a staff member (if we could afford one), with minimal mentorship or structured educational support.

If these individuals are volunteers, let’s make it clear that they are, and treat them with the same thoughtful gratitude we give our governing board. If they’re interns, let’s ensure the position has significant educational opportunity. If they’re unpaid staff, working on the promise of resume building and eventual pay, let’s rethink the whole darn thing.