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Let Them Eat Experience

Until last month, almost all unpaid internships were technically illegal. Now it’s open season for employers who want free labor.

A college career fair. USF SLE / Flickr

Unpaid internships have always been an opportunity for the privileged to consolidate their access to competitive industries. But until recently they were at least supposed to have a narrow scope. Prior to changes made at the beginning of this year, the legality of unpaid internships at for-profit companies hinged on adherence to all six criteria laid out in a Labor Department fact sheet. The strictest among them was a rule prohibiting employers from gaining an “immediate advantage from the activities of the intern.” In practice, these rules were rarely enforced, but they at least made clear that unpaid interns were not supposed to do real work for a company and that, in certain cases, it would be reasonable for the employer’s operations to “actually be impeded” by the internship. The principle undergirding this was simple: labor should not be free.

As Paul DeCamp, an attorney at Epstein Becker & Green, a firm that often represents employers, told Bloomberg, in the past, “If the intern did any productive work it would — at least according to a strict reading of the test — be required that activity be paid.” To DeCamp, that notion is ridiculous: for him and the employers he represents, requiring remuneration is unreasonable, a barrier to the free labor to which they believe themselves entitled.

No longer, says the new Department of Labor. On January 8, 2018, the six criteria were replaced with seven, and unlike before, there is no requirement that all of them be met. Instead, whoever is seeking to determine the legality of an internship will have to judge “the extent to which” each criteria is true and decide on a case-by-case basis. Gone is the rule preventing companies from benefiting from their unpaid interns. The closest facsimile says that a legal unpaid intern’s work  “complements, rather than displaces, the work of paid employees.”

The changes give employers wide access to unpaid labor. In a sense, it’s a de facto reduction of the minimum wage to zero. This a major a win for companies over their workers. A job that can be legally done by a young person for free is a job a company no longer needs to pay someone to do.

To be clear, this was already happening under the old rules — I know from personal experience. As someone who had the resources to work part-time for free and a desire to work in publishing, I took unpaid internships at literary agencies that would have crumbled without the interns. We read a huge portion of the manuscripts for our bosses and wrote reports for them. We answered the phones and ran their personal and corporate social media accounts. We cleaned out their bookcases. There were days when the interns were the only ones in the office. Most of the agents were nice, but some didn’t know my name. There was no paid employee whose work we could have displaced because the only employee who was not actually an agent was the office administrator.

This was certainly illegal at the time and would, perhaps, still be illegal now, though it’s less clear. But while small and large actors alike have routinely engaged in rampant cheating, there’s no reason to expect these new rules will make things better for the least powerful workers and every reason to believe they’ll make things worse.

An unsettling addendum to this story is that the rules change received almost no media coverage. Aside from the aforementioned Bloomberg piece, which had a slyly triumphant tone, and a post on the law industry website The National Law Review, the issue went uncovered. Perhaps this is because, like many of the Trump administration’s other regulatory rollbacks, this change arrived amid the flow of much more click-inducing stories about the Trump administrations day-to-day madness. Or maybe editors didn’t deem it of note because the normalization of unpaid work is the foundation on which their industry is now built. The news media’s embrace of nonpayment is more pervasive than just unpaid internships, but unpaid internships are a major building block.

Hearst Communications, for example, which had $10.6 billion in revenue in 2016 according to Forbes, and owns over 350 properties, spent years fighting a lawsuit brought by a group of unpaid interns at Cosmopolitan, Harper’s Bazaar, and other publications. In December 2017, the company emerged victorious. The district court opinion, which the second circuit upheld, ruled that while the internships “involved varying amounts of rote work and could have been more ideally structured to maximize their educational potential,” they were legal anyway. In either case, by failing to arm workers with information regarding the changed rules, companies seeking productivity in exchange for little more than a resume line have been further empowered.

It’s true that the old rules were so strict they rendered nearly every unpaid internship functionally illegal. That was a good thing. The problem with the rules wasn’t that they went too far but that they allowed companies space to employ unpaid workers at all. The new rules, meanwhile, will not only impact those who rationalize giving their time and energy for free, but also salaried employees, who will now have to compete with someone charging zero. Finally, it’s bad for those who can’t afford to take on an unpaid internship; now they’re at an even more massive disadvantage in hypercompetitive entry-level job markets.

The only winner is capital.