Square pegs and round holes: Shrinking protections for unpaid interns under the Fair Labor Standards Act

There are roughly one million unpaid interns among the annual US university population. For over 60 years, legal standards specified that unpaid internships at for-profit employers had to be part of a prescribed educational or training course with no displacement of regular employees and no immediate employer advantage. The longstanding approach has been superseded since 2010 by a judicial balancing test, asking whether employer or unpaid intern is the “primary beneficiary†. This newly created test has made it easy for employers to justify unpaid internships. The asserted policy benefits derived from internships (resume enhancement, networking opportunities, training received) are realized to a greater degree by paid rather than unpaid interns. And any benefits are outweighed by lack of protection under anti-discrimination laws for these “non-employees†; the disparate impact of access to unpaid internships based on family wealth; and employers’ ability to substitute unpaid interns for regular employees receiving decent wages.