Interview with partner Jeffrey K. Brown and associate Michael Tompkins of Leeds Brown Law, PC

ARE THERE ANY LIMITS ON WHO CAN SEEK COMPENSATION FOR WORK DONE DURING AN UNPAID INTERNSHIP?

Jeff Brown: Yes. First, there are statutes of limitation that require that you file suit within a certain period of time. Each state has its own time period. In New York, it’s six years. If your claim is filed in federal court, the time limit for filing is typically three years. Additionally, there may be certain employers that are exempt from the rules. The law in the field is still developing but generally non-profits, like food banks and government entities, may be entitled to greater leniency. The Department of Labor, for example, has not issued any explicit rulings regarding unpaid internships with charitable organizations or non-profits. Nor has the Wage and Hour Division gone after those organizations for these types of wage violations.

WHAT IF YOU WERE HIRED AS A “TRAINEE” OR AS A “PROVISIONAL” OR “PROBATIONARY” EMPLOYEE, AND PAID FOR YOUR SERVICES?

Jeff Brown: Your title at the company is basically irrelevant. Are you performing work for their benefit? A company cannot simply avoid the law on unpaid internships by calling a person a “trainee” or anything else. Furthermore, the rule doesn’t just apply to unpaid internships, it applies to “underpaid” internships as well. The law is designed to enforce minimum wage laws. If you are required to work a specific number of hours, and your total compensation for those hours does not compute to the minimum wage per hour, you have a claim against your employer. For example, if you are working for a financial services company, making cold calls from the office 60 hours a week, and you are paid $200 per week ($3.34 per hour), you have a claim for not being paid minimum wage of $7.25 per hour.

WHAT ARE THE UNINTENDED CONSEQUENCES HERE? CAN YOU EXPLAIN WHAT YOU MEAN THAT THERE ARE OTHER VICTIMS?

Jeff Brown: Certainly. I think most people assume that the only person who actually suffers from an unpaid internship is the person who worked for no financial or educational benefit. However, there are other repercussions. Unpaid interns displace people who would and should be paid to perform these services. Those are also victims because they never had to the opportunity to work for the company and make a living. Next, because these internships are unpaid, they are only available to those individuals who can afford to work for free. An unpaid intern has to be sound financial or have the support of other people to work for free for an extended period of time. Consequently, they reward the “haves” at the expense of the “have nots.” We want to put an end to that. We believe that these opportunities should be available to people based on their ability or their work ethic, not their ability to work for nothing.

Michael Tompkins: There is a vicious cycle whereby no entry-level jobs are ever filled, and the underprivileged cannot afford to take unpaid internships. People with means who can afford to borrow money or can stay at their parents are the ones that can afford to take unpaid internships. It is an absolute blessing to be in that situation. But it shouldn’t be the threshold for trying to gain some experience. What happens if you can’t afford to work without getting paid, take out loans to pay for rent, or stay with family that lives near the company? The answer is simple: you never get the internships and gain the experience. That’s the argument that people don’t always notice. Jeff is right that getting a job or a real internship should be based on what you can provide to the company – not whether you afford to be free labor for 3 months.

YOU HAVE USED THE TERM “EXPLOITATION” TO DESCRIBE THE CONDUCT OF COMPANIES THAT ILLEGALLY BENEFIT FROM UNPAID INTERNSHIPS. IS THAT TOO STRONG?

Jeff Brown: No. Consider this..Fox Searchlight Pictures grossed more than $300 million on the movie Black Swan, but couldn’t pay its interns minimum wage? As I indicated earlier, many of the companies that have been most egregious in this practice-Conde Nast, the Hearst Corporation, the Charlie Rose production company – are companies that are not experiencing financial problems. At one level, it’s about paying a fair wage for a fair day’s work. But at another level — and more fundamental level — it’s about respect. Anyone who works wants to be respected for what they do. And pay is what Ross Perlin calls “the fundamental currency of respect in the modern economy.” Unless a person willingly volunteers, or unless they are provided with a legitimate training or educational opportunity, he/she should be paid for any work he/she does. Interns know that they are starting out at the bottom, but they are willing to give their time if they get something in return. When they earn nothing and learn nothing as well, there is no other way to describe how they have been treated other than exploitation.

Michael Tompkins: It is exploitation, and it is corrosive to the economy that a generation of workers and future leaders had to go through a cycle of being an intern, collecting a few internships, to reach a level of experience that they could earn a wage. It’s more debt and hardship that young people had to burden themselves with before they are “ready” to enter the work force. That’s a blatant attempt, in my mind, by big business to avoid paying a few dollars each hour – being more concerned with the bottom line than the impact on the people. When you create that type of corporate environment, you are admitting that you are willing to reach the lowest common denominator and ignore the role you are supposed to be playing in sustained growth.