Sunday, April 11, 2010

You Can't Even Give It Away

Crossposted from
Original Editorial by HALC member Jeff Larson
Even your time doesn’t belong to you
Non-"For-Profit" Intern With Supervisor
Have you lost your job in the last year, or do you know someone else who has lost their job?  Most of us have…these are hard times.  When the economy gets tough, one strategy is to take an unpaid internship with an established business.  The reasoning goes something like this:  you’re not going to be working anyplace else for a while, and you’ve decided that you’re not going to have a job like your old one, for whatever reason.  But, you have no experience doing some new kind of work that you think you’d enjoy.   So, you talk someone into “hiring” you, working for nothing for a few weeks or months.  You get relevant experience and on-the-job training without paying for tuition, and your new “employer” gets to try you out for nothing.  He or she might even get some useful work out of you for nothing…or next to nothing, since you’ll be taking up time and space while you learn the business.  At the end of it all, you might even be able to parlay your internship into a paid position…good for you, since you are no longer unemployed.  It’s also good for your new employer, who gets to hire someone who already has a track record with the company, instead of some unknown who fails to live up to their resume.
So, in these precarious economic times, what could possibly be wrong with this arrangement?

Well, as reported in the New York Times, according to US Department of Labor Deputy Secretary Nancy Leppink, head of the Wage and Hour Division, “If you’re a for-profit employer or you want to pursue an internship with a for-profit employer, there aren’t going to be many circumstances where you can have an internship and not be paid and still be in compliance with the law.”

Huh?  There’s a law against this?  Well, according to Deputy Secretary Leppink, that would be 20 CFR 663; Section 203(e) of the Fair Labor Standards Act (FLSA), which you probably know better as the “minimum wage law”.  But, if you’re not getting anything, how can it be said that you’re actually working at a job?  The Department of Labor has developed six criteria to determine if you are a “trainee” or an “employee”.  All employees must be paid the minimum wage plus time and a half for any overtime.  (Apparently, they don’t have such a thing as a category for “volunteers” or even “wannabees”.)  And you’d better believe that you must meet all six criteria for being a “trainee”, or the Department of Labor will sue your “employer” to force him to pay you all the wages that you deserve.
What are the six criteria?  You can find them below or at this website:
  • The training, even though it includes actual operation of the facilities of the employer, is similar to what would be given in a vocational school or academic educational instruction
  • The training is for the benefit of the trainees
  • The trainees do not displace regular employees, but work under their close observation
  • The employer that provides the training derives no immediate advantage from the activities of the trainees, and on occasion the employer’s operations may actually be impeded
  • The trainees are not necessarily entitled to a job at the conclusion of the training period
  • The employer and the trainees understand that the trainees are not entitled to wages for the time spent in training
Let’s take the first one, the one that practically requires the employer to run a vocational school.  Have these people ever heard the phrase, “on the job training”?  Well, I’ve worked at a very highly skilled job as a NASA contractor, providing mission support to the Space Shuttle (and later the Space Station).  Before I could ever sit down at a console and strap on a headset, I had to read through over a thousand pages of manuals.  What did that qualify me to do, as a paid employee?  It allowed me to sit next to a “certified operator”, watch and listen to what he was doing, ask a lot of stupid questions, and not push any buttons.  I also got to do his scut work…check the log to see when this or that happened, find out the address of the command he was going to send, even adding up columns of figures (it had something to do with some spacecraft’s power budget).
They didn’t even trust me with getting coffee.  And I can assure you, that’s pretty much exactly how it went for every summer intern who was privileged enough to “sit console” with us…and most of them were thrilled at the opportunity to do so, even if they never came back to work “for real” for NASA.
My friends in other fields tell me that it pretty much goes the same way for interns at their businesses…run the numbers on the Faversham account to see if it’s worth keeping, go out with a line crew and take an inventory on the poles they are working on, stand on the corner of Main and Vine and do a traffic count between the hours of 9 and 11.  It is work, it’s generally scut work, it’s never mission critical (unless the employer is dumber than a rock), and if you ask any intern, they’d rather be doing that than sitting in a classroom learning about how to fill out a time card, or the intricacies of how to fill a foreign order without running afoul of Federal export regulations, or some other nonsense.  But for some reason, if it doesn’t look like a vocational school setting, to the Feds it isn’t training – and that means they have to pay you for it.
I suppose next employers will have to issue some sort of “Certificate of Training”, certifying that their intern trainee is now certified to, uh, actually do something in the industry.  Maybe that would even be something important, like not sexually harassing his or her co-workers, or knowing how to work in a drug-free workplace.  At least, that’s what the Feds seem to think that important employee training encompasses.  Failing that, the intern employee will have to be paid at least the minimum wage, with Social Security, unemployment benefits, and now health care.
So, if some unemployed person you know tries to get a leg up on a new career by working for nothing, don’t be surprised if they tell you that they hear, “No internship for you!

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