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[ 48 ] November 21, 2012 |

I have a piece in Salon arguing that a Denver federal judge has pushed the government’s willingness to stretch the definition of who qualifies as a genuine “volunteer” under the FLSA beyond the legal breaking point.

The general purpose of the FLSA is to prohibit employers from not paying employees, and to enforce minimum wage standards (there are different wage standards for hourly and professional workers but you still have to pay people if they’re working for you).

The two exceptions to this principle are “internships” and “volunteering.” (The latter exception doesn’t apply to for-profit enterprises). In theory internships are supposed to be limited to educational training that doesn’t displace paid workers. This rule can be and is regularly abused, but the most flagrant abuse of the statute is now taking place in the public sector, through the semantic torture of the noun and verb “volunteer.”

Here’s the relevant definition in the Code of Federal Regulations:

§ 553.101 “Volunteer” defined.

(a) An individual who performs hours of service for a public agency for civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation for services rendered, is considered to be a volunteer during such hours. Individuals performing hours of service for such a public agency will be considered volunteers for the time so spent and not subject to sections 6, 7, and 11 of the FLSA when such hours of service are performed in accord with sections 3(e)(4) (A) and (B) of the FLSA and the guidelines in this subpart.

(b) Congress did not intend to discourage or impede volunteer activities undertaken for civic, charitable, or humanitarian purposes, but expressed its wish to prevent any manipulation or abuse of minimum wage or overtime requirements through coercion or undue pressure upon individuals to “volunteer” their services.

(c) Individuals shall be considered volunteers only where their services are offered freely and without pressure or coercion, direct or implied, from an employer.

(d) An individual shall not be considered a volunteer if the individual is otherwise employed by the same public agency to perform the same type of services as those for which the individual proposes to volunteer.

Conducting a hiring process that is precisely identical in every detail for two positions that involve doing precisely the same job for the same time period under the same terms of employment, except you pay one of your hires as a GS-11 or GS-12 and pay the other nothing, appears to me to empty the concept of “volunteer” of all meaning.

On a more general level, what’s happening in the legal employment market is that it’s becoming the norm for a graduate to spend a year or two after graduation working for either literally nothing, or to something close to the economic equivalent, while trying to get his or her “foot in the door” of a real legal job. So what we’re producing is something that’s coming to more and more resemble the old apprenticeship system of lawyer training, but with a $200,000+ license fee tacked on.

Naturally this is making it increasingly implausible for people who don’t come from serious money to actually become real lawyers. In the new gilded age, that might even be the whole point.

Comments (48)

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  1. JREinATL says:

    The real winner here: Judge Martinez’s two paid clerks, who will get their workload cut by 16% and get to look down their noses at their new begger colleague.

  2. Bloix says:

    Paul, a friend who is an AUSA tells me that they have unpaid, experienced lawyers working as “volunteer” AUSA’s in his office for terms of a year. Most are laid-off civil litigators who are trying to reposition themselves as criminal lawyers and are working for nothing in order to get experience and the resume lin and perhaps a leg up if a position in the office becomes open. They are called “Special Assistant United States Attorneys” and the program that selects them has the Orwellian name of “the Legal Fellowship program.”

    You can read about this exploitation of desperate professional laborers here,

    http://www.justice.gov/usao/dc/programs/employment/legal_fellowship_program.pdf

    and here

    http://abovethelaw.com/2011/05/would-you-work-as-a-federal-prosecutor-for-free/

  3. rea says:

    An aggravating factor–he’s hiring now, out of the normal cycle, and demanding a “moral committment” to stay for a year. Law firms tend to hire May/June, in synch with law school graduation. So, he’s essentially asking for applicants to forego paid work for the better part of 2 years in return for the privilege of doing a year of free labor.

    • Julian says:

      Law firms tend to hire May/June, in synch with law school graduation.

      I thought law schools tend to hire based on their summer associates, and summer associates are recruited in august/september. What hiring are you referring to? Contract attorney hiring or normal associate hiring or lateraling?

      • rea says:

        I misspoke slightly–what I should have said I that law firms tend to hire for a start date that time of year (the actual hiring decision of cocurse is made earlier). The point is, someone in this unpaid clerkship with a comittment to stay to November will have to persuade any potential real job to wait for him to be able to start, or wait another year to get a job.

        • Julian says:

          I think this is also wrong (though I am conditioned to think about this all in Biglaw terms, and this may be true for the many firms outside Biglaw). Biglaw firms tend to have start dates in Sept/Oct/November, probably for two reasons – 1) graduates haven’t even taken the bar exam yet, and they are going to spend a lot of their time over the summer doing Barbri or whatever, and (though this is more speculative on my part) 2) during the summers law firms are busy with the care and feeding of summer associates, and wouldn’t want to have to supervise 1st year associates on serious paid work while simultaneously handholding the summers.

    • Scott Lemieux says:

      Yeah, I particularly treasured the entirely one-way “moral commitment” too. Fortunately for the hypothetical clerk, I’m pretty sure that morality permits you to take the first halfway decent offer from a paying employer and certainly compels Martinez to be told to go fuck himself.

      • rea says:

        Although for a young lawyer to tell a federal judge to go fuck himself is problematic.

        • Scott Lemieux says:

          I said “morality.” Who says morality is necessarily practical? Obviously the exploited is not in a good position to go against her exploiter here.

      • Just Dropping By says:

        That only works if you get a job in different state or in a field that pretty much never requires you to be federal court.

  4. basement cat says:

    Interns built the pyramids.

  5. Bloix says:

    Ah – always click the link!

  6. somethingblue says:

    Yeah, you may be just a lowly intern today. But this is America! Anyone can become a volunteer, if they work hard and play by the rules.

  7. Johnny Sack says:

    Slightly OT, I remember the one halfway intelligent thing Rick Santorum talked about during his abortion of a campaign was term limits for federal judges. 12/14/18 years, I dunno. Back in the day, life expectancy was much shorter and therefore court tenures tended to be shorter. And anyway, I think most people would support an amendment like that. Doesn’t disturb any of the incentives (no elections, etc) either.

    • Sherm says:

      One problem is that you don’t want judges hearing cases involving companies primed to hire them upon their forced retirement.

      • Just Dropping By says:

        Make the term 21 years. Most federal judges are in their 40s or 50s when first appointed, so that would line up with traditional retirement age and minimize concerns about them being on the prowl for replacement jobs.

    • rea says:

      Back in the day, life expectancy was much shorter and therefore court tenures tended to be shorter

      From Wikipedia:

      Roger Brooke Taney (March 17, 1777 – October 12, 1864) was the fifth Chief Justice of the United States, holding that office from 1836 until his death in 1864

  8. ALAN G KAUFMAN says:

    Why is the use of a volunteer unpaid clerk by a federal judge not a violation of the AntiDeficiency Act. Is there a statutory exception?

    The Antideficiency Act prohibits federal employees from accepting voluntary services for the United States, or employing personal services not authorized by law, except in cases of emergency involving the safety of human life or the protection of property. 31 U.S.C. § 1342.

    http://www.gao.gov/legal/lawresources/antideficiencybackground.html

  9. Julian says:

    What is the virtuous better path the judge should take? Hire no one?

  10. David M. Nieporent says:

    Campos is apparently trying to illustrate the oft-made point in his law school scam comment threads about law professors being in for a rude awakening if they ever had to get jobs outside of academia. Because, as a lawyer, he makes a pretty good academic.

    The whole “volunteer” thing is a red herring; this isn’t illegal because the minimurn wage does not apply to lawyers.

    • Random says:

      I’m not a lawyer, and I’ve known that you have to any employee a minimum amount of money each week under federal law since I got my first job when I was 16. You, sir, are an idiot.

      • Random says:

        Now that I think about it, there was a guy there who didn’t even speak English at the conversational level, and he knew it too.

    • Anonymous says:

      You have no understanding of federal wage and hour laws.

  11. [...] is something Paul has discussed before, but it’s hard to square most unpaid internships with federal labor law. Finally, at [...]

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