Theresa brought the issue of unpaid interns to our attention a couple of weeks ago in her blog post Are unpaid internships ethical? I decided to delve into this topic farther and found many articles on the ProPublica website. The most interesting highlights an issue that is caused by interns not being paid, the civil rights that they have in the workplace as interns, specifically protection against sexual harassment.
Let me back up and summarize the requirements of an unpaid internship. The Department of Labor has a six-factor test used to determine if an intern must be paid. The criteria are:
- The internship is similar to training which would be given in an educational environment
- It’s for the benefit of the intern
- The intern doesn’t displace paid employees
- The employer doesn’t benefit from work the intern is doing, “and on occasion its operations may actually be impeded.”
- The intern isn’t promised a job at the end (unpaid “tryouts” aren’t allowed)
- Both the intern and their boss understand it is an unpaid position
According to this, Blair Hickman and Christie Thompson think that it is rarely acceptable to not pay an intern at a for-profit company. Generally, interns do work that benefits the company, which would constitute the need for the company to pay them.
If an intern is not paid, then they are not considered an employee of the company. Hickman and Thompson explain in their article How Unpaid Interns Aren’t Protected Against Sexual Harassment that because of this, they are not covered under the Civil Rights act that protects employees. They highlight a few cases where unpaid interns filed lawsuits against “employers” but their claims were dismissed because they were not technically employees.
Unpaid interns often do not complain of Civil rights issues because they do not want to lose a future opportunity, job offer, or recommendation due to retaliation. Some states, specifically Oregon, are changing their laws to ensure that unpaid interns’ civil rights are protected. This leads us back to the original question of “are unpaid internships ethical?” If these unpaid interns are really doing work for the company, they should be paid. If they are paid, they become employees, and are therefore covered under the Civil Rights Act.