New Attack on Protecting Interns

I’m not at all shocked that a bunch of elite judges don’t understand the world of internships and how corporations use them to create pools of free labor. But that’s not going to stop them from undermining protections for interns. Ross Perlin:

The judge, William H. Pauley III, found that Fox Searchlight had failed to meet this test. Sadly, on Thursday, a three-judge panel of the United States Court of Appeals for the Second Circuit eviscerated the six-factor checklist and replaced it with, in essence, a new legal theory of what internships are all about.

The appeals judges found, among other things, that an internship can be legal even if it doesn’t meet the traditional six-prong test, especially if it is tied to the receipt of school credit and helps the student fulfill academic commitments.

Even worse, the judges declared that “the proper question is whether the intern or the employer is the primary beneficiary of the relationship.” They ignored the legal standard and ethical principle that work merits pay.

The judges stressed that internships may be legal merely because they are supposedly being overseen by the interns’ schools. But these very same institutions have been complicit in the internship boom by ignoring abuses, requiring internships for graduation and charging students for academic credit when they go off campus to do unpaid work.

The “primary beneficiary” approach leads to the atomizing result that interns cannot unite to protect themselves. The judges write that “the question of an intern’s employment status is a highly individualized inquiry,” ignoring the low or nonexistent pay and shabby work conditions common to interns in many offices and industries. Thursday’s ruling all but destroys the basis for collective action through class-action lawsuits.

At oral arguments in January — I had filed an amicus brief on behalf of the plaintiffs — it was evident that the three judges had no firsthand experience of what they call “the modern internship.” Focusing on “what the intern receives in exchange for his work,” the judges completely ignore the significant benefits that employers derive from their interns.