According to her complaint, Xuedan Wang interned at Harper’s Bazaar from August 2010 through December 2011 for 40-55 hours per week and went unpaid. On February 1, 2012, she filed a lawsuit against The Hearst Corporation (the fashion glossy’s publisher) accusing them of violating state and federal wage and hour laws by not paying her when she was doing the work of a paid employee. Wang had graduated from college already so she was not earning any credits for her “internship.” Last time I checked, working for free for 55 hours a week was not an internship – its slavery.
A prominent article in the New York Times back in April 2010 highlighted how the Federal government was cracking down on “internships” that really just amounted to free work for employers. I then blogged about it as well in a post on this site: https://www.courtroomstrategy.com/2010/06/do-unpaid-internships-violate-federal-wage-laws The post set out a list of federal legal criteria that must be satisfied in order for an unpaid internship to be considered legal:
(1)The training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in a vocational school;
(2)The training is for the benefit of the trainees;
(3)The trainees do not displace regular employees, but work under close observation;
(4)The employer that provides the training derives no immediate advantage from the activities of the trainees and on occasion his operations may actually be impeded;
(5)The trainees are not necessarily entitled to a job at the completion of the training period; and
(6)The employer and the trainees understand that the trainees are not entitled to wages for the time spent in training.
Most of the grunt tasks that fashion interns are assigned to would not qualify as “training” and certainly benefit the employer more than the employee. Unless all six factors are met, the DOL will find that an employment relationship exists. In DOL guideline letters, summer internships have been found to be employment (meaning pay is required) even where the students simultaneously received college credit for the internship. So it looks to me like this lawsuit is open and shut if Ms. Wang’s facts are correct.
She could even convert this to a class action on behalf of all Harper’s interns across the country, something her lawyers are planning to do. That could spell big trouble for the publishing giant. I don’t understand why large companies like this, which have vast resources to retain qualified employment counsel, were not alerted to this issue by their BigLaw attorneys? Its so easy to fix this problem by limiting interns to 20 hours per week and making sure that part of that time is devoted to making it a learning experience for the intern. Then it is likely that your internship program will pass muster under Federal and State wage laws.
Certainly, unpaid internships offer a valuable opportunity for a young person to learn the industry they are interested in, make some connections and build a resume. But when these opportunities are turned into 55 hour work weeks fetching coffee and doing other menial tasks, an employer must be taken to task (and court).