Is any of this legal? A new paper by Eric Fink explains that, surprisingly, many of these positions don't violate federal minimum wage laws. The Fair Labor Standards Act exempts "any employee employed in a bona fide . . . professional capacity" from minimum wage requirements. A good lawyer, of course, could argue that many aspects of law practice are routine rather than "professional." But the Department of Labor has forestalled that type of argument by declaring that "any employee who is the holder of a valid license or certificate permitting the practice of law . . . and is actually engaged in the practice thereof" counts as a "professional" exempt from federal minimum wage laws.
Licensed lawyers, in other words, have no federal right to a minimum wage while practicing law. Thankfully, they can still claim minimum wage protection while pouring coffee or selling shirts. And it's possible that some state or local laws offer better protection to professionals. But if a licensed lawyer wants to practice law, federal law offers no minimum-wage guarantees.
For law students, the situation is a little different. They are not yet "professionals" so they can invoke minimum wage protections. But Congress and the Department of Labor have broadly exempted government agencies and nonprofits from the minimum wage laws; those employers can accept law students as "volunteers" rather than employees. Like LawProf, I think this exemption far exceeds the original spirit of the Fair Labor Standards Act, but we'll leave that issue for another day.
Federal law at least seems clear that private, for-profit employers must pay students for their work rather than push them into unpaid positions. But an increasing number of employers are shirking that responsibility by inviting law students to participate in "internships." As Professor Fink explains, the regulatory exception for internships is quite narrow. The Department of Labor has established six criteria for defining an internship; these focus on a training environment, direct benefit to the intern, close supervision, and lack of immediate advantage to the employer. Courts have adopted similar tests, which Fink explores at greater length.
Under any of these tests, many unpaid "internships" at for-profit organizations blatantly violate the law. Here are just a few suspects I found while cruising the internet:
- Price Benowitz, a four-lawyer firm that bills itself as "mid-sized," is seeking several part-time interns to perform "Superior court filing, processing legal documents, [and] office admin support." The firm throws in "shadowing attorneys in court" for an educational twist. But the bulk of this internship will advantage the employer rather than the intern. It's doubtful that any of the office support work will benefit the student. The same is true for the court filings and document processing: After the first few filings or documents, the intern will be working--not learning. The firm, though, does care about the interns' financial welfare; it notes that the internship "can accompany restaurant or retail job."
- An unnamed company in Santa Monica, California, wants an unpaid intern who is "organized, computer competent, and great with legal research." Oh, yes, the intern must also "smile often." Those skills clearly will benefit the company. But if the intern already understands how to use a computer, excels at legal research, and knows how to smile, what exactly will the internship teach the student?
- The Jonak Law Group, which appears to have a single member, needs "law students with excellent research and writing skills," to work on a Ninth Circuit brief. The position lasts only as long as the appeal, and "telecommuting is fine--you can be based anywhere in the country." With those constraints, it's hard to believe that Jonak has structured the internship to offer close supervision of interns and an educational environment, rather than immediate advantage to the employer. Note that this is a private law firm engaged in civil litigation; the lawyer does not appear to be handling the case pro bono. So why do the students have to work for free?
For this, I blame law schools. Consider the situation from the typical employer's perspective. For two decades, law schools have raised tuition ruthlessly--far beyond the rate of inflation. At the same time, schools remain disdainful of clinical training, telling students that this education is "too expensive" to provide and that practical skills are "better learned in the workplace." Law schools, in other words, have signaled employers that (1) law students are willing to pay high prices for a chance to enter the legal profession; (2) teaching people to practice law is labor-intensive and costly; and (3) this type of practical education is so expensive that we can't afford to offer much of it even for $20,000-50,000 per student per year.
Why shouldn't employers conclude that they are providing students a valuable educational experience by inviting them into the workplace? And why shouldn't the employers assume that they, like law schools, are entitled to hefty payments for whatever training they provide?
None of this excuses the employers, either legally or ethically. But I think law school attitudes help explain the explosion of unpaid internships. Practitioners are protecting their bottom line, but they're doing so in a way that has become culturally acceptable. Law schools have suggested that it is appropriate--even admirable--to exact the heaviest possible toll from people who want to be lawyers. If that's acceptable for full-time educators, then why not for the practitioners who are expected to complete the educational track?
It's time to rethink the burden that both educators and employers are laying on the next generation. Marley's ghost will be busy tonight.