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

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?

Absolutely.

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.