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Are Washington’s Numerous Unpaid Interns Victims of “Wage Theft?”

Eric Glatt, who won a lawsuit on the issue, says yes.

Photograph courtesy of Eric Glatt.

Eric Glatt, a second-year Georgetown University law school student, got the attention of interns and employers when, after working as an unpaid intern on the hit 2010 film Black Swan, he and fellow intern Alexander Footman filed suit against the movie company, Fox Searchlight Pictures, on grounds that not paying them was a violation of the Fair Labor Standards Act. The lawsuit was filed in September 2011 in federal court in Manhattan, where the film was shot. Last month Judge William H. Pauley III ruled on the side of Glatt and Footman. He said the work they performed did not meet the government’s standard for unpaid internships, meaning more educational and vocational, and most of all benefiting them. Instead, he said, their duties were as regular employees in jobs that benefited the movie studio. Fox Searchlight is in the process of submitting an appeal, but regardless, the case opened the floodgates on an issue that Glatt says is particularly relevant to Washington, where he claims there are more unpaid interns than anywhere in the US. He says these unpaid interns are victims of “wage theft.”

Glatt, a native of New Jersey, is quick to admit, “I’m not the typical intern people think of.” That’s because he is 43 years old and already hyper-educated, with a graduate degree and two MBAs. He feels age does not alter the argument that interns should be paid if they are performing a job that benefits a company and otherwise would go to a paid employee. He is spending the summer on the Georgetown campus, doing paid research for two law professors.

Glatt says his situation was a “lawsuit waiting to happen.” At the heart of it is the 1947 Supreme Court case Walling v. Portland Terminal Co. that resulted in a set of Department of Labor rules employers must honor to qualify for having unpaid interns: The internship must be educational and vocational in structure, the work performed must benefit the intern, the intern cannot substitute for a paid worker, and the employer cannot benefit directly from the intern’s duties. Judge Pauley also came down against the practice of interns receiving college credit for unpaid work, saying that the practice was irrelevant in the larger question of whether interns should be compensated for what they do.

Since the Fox Searchlight suit, several similar suits have been brought by interns, though none in Washington. We got in touch with Glatt to talk specifically about whether Washington interns should be paid.

You have described unpaid internships in DC as “quite their own beast.” What do you mean by that?

What’s curious about it is that government institutions really seem to have carved out for themselves a blank check for free labor, and, unlike the for-profit sector, which has to adhere to the Fair Labor Standards Act, the government basically appears to have given itself the right to use free labor.

Do all government agencies use unpaid interns?

It would appear so. The Labor Department has them, the White House has them, members of Congress have unpaid intern staff. The Department of Justice created a program called Special Assistant US Attorney. Do you know what makes a Special Assistant US Attorney special? They do everything an Assistant US Attorney does, except get paid.

How does the government compare with other organizations in DC that use unpaid interns?

I think it may be worse in government than in other industries, but it extends to so much of the work that goes on around the government. Nonprofits, NGOs [non-governmental organizations], and diplomatic agencies use their own cadres of unpaid interns.

Are these unpaid interns taking jobs away from people who would get paid?

I would certainly venture that that is true. From what I’ve seen, these jobs are necessary for the function of those organizations. Without the free labor they would have to hire somebody.

Have you ferreted out the most egregious offenders in Washington?

I haven’t, but I have been asked to join the board of a new campaign called the Fair Pay Campaign, which is starting in August. It is Washington-based and is looking to create better practices among industry and government regarding internships, and it has both industry and union support. I’m also hoping to get involved with the campaign directly.

In your case, you filed suit against a private, for-profit company. But no one can sue the federal government.

That’s the thing. That’s why the Fair Pay Campaign is taking the approach of creating a policy where [the federal government] can no longer do this. Because as of right now it does not appear illegal. I call it wage theft. It is institutionalization of class privilege.

What would be an appropriate standard?

I’m not taking a position on what the government thinks about paying interns. In fact, right now it appears that the government thinks that interns don’t always need to be paid, and I think that’s wrong.

I believe entry-level work should be compensated according to what the government has agreed to pay entry-level employees, and more-skilled work accordingly, et cetera.

Should an intern have the option of being paid or not paid?

That’s an argument against having a minimum wage. “I don’t care if you pay me, I just want the job.” With that you are throwing out the cornerstone of the New Deal.

Do you think the Great Recession that we have been in for the past few years makes employers less generous and more greedy about unpaid interns?

It was already getting explosively worse before the Great Recession, and the Great Recession has only made it not only worse but harder to dig out of. Now employers have all these excuses because of the constraints on their budgets. I have looked for a direct connection between the sequester and using more interns, but the government can make it difficult to understand what action is related to what.

Was being in law school a factor in filing the lawsuit?

The decisions weren’t so causal. At the same time I decided to file the lawsuit I decided to go to law school, but I also decided to align my professional life to more accurately reflect my values and my politics and to stop sitting on the fence.

If an unpaid intern, eager to make a good impression, eager to build a résumé, feels he or she is being used inappropriately, but doesn’t want to rock the boat, what actions can be taken?

Sometimes people doing an unpaid internship don’t feel they have the power to speak up. If they bring it to the boss it might harm them. If you have good rapport with your boss, sure, talk to them. I just heard last week of a woman working in an unpaid internship for a subcontractor for USAID who showed her boss my lawsuit, and she’s now being paid.

One thing they can do is reach out to some of the grassroots organizations. There’s a group called Intern Labor Rights in New York City, and the Fair Pay Campaign is about to launch.

What does the appeal mean to you?

It means an opportunity for an even higher authority to weigh in and affirm the argument we’re making: that this is harmful to the labor market in a manner against which the Fair Labor Standards Act was meant to protect.

Do you feel you’ll do well with the appeal?


Is this an age issue, since most interns are quite young?

We’re talking about adults, whether they are in their late teens or older. The labor laws apply to the labor market.

Is it an issue principally affecting interns, or anyone who finds themselves performing a job and not getting paid for it?

It’s about the culture around volunteerism and free labor. You start doing something as a favor for somebody, and suddenly it becomes a job. That’s not a sustainable model of economic recovery and a healthy labor market.

This is a town that really needs to have this conversation. We probably have more interns [in Washington] than anywhere else in the US. The idea that volunteering for government is simply a form of public service, while we’re in the midst of a historic job crisis, fails to account for how this fits into the bigger picture. It not only deprives people of the respect conferred by pay for performing the labor of the people’s work, it further consolidates class divide and inequality by privileging those who can afford to work for free.

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  • Ashley

    I wish someone would do something about the six months pre-certification teachers are expected to work unpaid to "get the experience".

  • Richard Scully

    Great article!

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