Harper’s Bazaar Intern Lawsuit: Why Don’t More Unpaid Interns Demand Back Pay?

Commentary about business and finance.
Feb. 13 2012 6:10 PM

Get Your Own Damn Coffee!

Most unpaid internships are illegal. Why don’t more interns protest?

Angry Intern.
Are unpaid internships unethical?

Hemera/Thinkstock.

On Feb. 1, a funny thing happened in a U.S. district court in Manhattan: An intern complained in public.

Katy Waldman Katy Waldman

Katy Waldman is a Slate staff writer. 

Xuedan Wang, a 28-year-old former intern at Harper’s Bazaar, filed a lawsuit against the Hearst Corp., Harper’s parent company, for failing to pay minimum and overtime wages during her unpaid internship. Wang, who goes by Diana, spent August through December 2011 at the magazine, coordinating fashion sample deliveries, filing expense reports, helping with photo shoots, and supervising other interns. Her typical 40-hour workweek sometimes ran to 55 hours.

According to the 1938 Fair Labor Standards Act, employers offering unpaid internships must meet six requirements that ensure the educational value of the experience for the interns, as well as guard against the displacement of regular workers. Unpaid internships are legal only if “the employer derives no immediate advantage from the activities of the intern; and on occasion its operation may actually be impeded,” the guidelines say. The internship must also be “for the benefit of the intern” and should not involve tasks that would otherwise be assigned to paid employees.

Wang’s lawyer Elizabeth Wagoner, of the firm Outten and Golden, contends that Hearst violated these labor standards in its treatment of Wang and the hundreds of other unpaid interns who stud the corporation’s offices at Harper’s, Cosmopolitan, Town & Country, Seventeen, Esquire, and other titles.* “The law says that workers can’t bargain away their rights to the minimum wage, even if they wanted to,” she told me. The lawsuit claims, “Unpaid interns are becoming the modern-day equivalent of entry-level employees,” except when it comes to compensation.

The odd thing about the suit, which Wagoner and her team hope to turn into a class action, is that it’s necessary at all. Most unpaid internships flagrantly ignore the rules set out by the Labor Department. A storm of newspaper articles have chronicled the abuses interns endure and cried repeatedly for reform. Since 2011 at least three books have anatomized the injustices of the intern phenomenon. Last September, Outten & Golden filed a similar complaint against Fox Searchlight Pictures on behalf of two unpaid interns who worked on the movie Black Swan. The suit is awaiting a hearing at a federal court in New York.

If there is widespread agreement that unpaid interns are being exploited—and that it’s against the law—why is nothing changing? Why, in fact, does it seem that there are more unpaid interns than ever? What’s holding back the intern revolution?

Internships save firms roughly $600 million every year, reports Ross Perlin in Intern Nation: How To Earn Nothing and Learn Little in the Brave New Economy. In a recession-stricken market, employers have little trouble finding bright young things willing to exchange free labor for a foot in the door. Think of it as a version of the prisoner’s dilemma. If the intern-age population collectively refused to work without pay, subsequent conditions would favor all workers. But it takes only a few defectors to make unpaid internships intensely profitable for the people involved—for the companies that get free labor and the interns who get a leg up in the job market.

Also, there are surprisingly few complaints by interns, because most don’t wish to bite the hand that may feed them someday. “Unpaid interns are usually too scared to speak out … because they are frightened it will hurt their chances of finding future jobs in their industry,” said Adam Klein, another one of Wang’s lawyers.* Wang allegedly wrote on her blog that she aspired to be creative director of Harper’s. Dragging the employer of her dreams to court is perhaps poor strategy, but her lawyers said she is more committed to “having an impact” than furthering her career.

The other problem for anyone wishing to organize interns against maltreatment is that the variety of intern experience is so vast. Some internships are dismal and exploitative; others enthralling and useful; some a mix. Here’s a partial list of things I did as an intern at a literary magazine: transcribe hours of interviews, stuff envelopes, send rejection slips, sort mail, write for the blog, fetch lunch for editors, discuss poems with editors, drink unlimited free coffee and Diet Coke, quarter limes for parties, attend parties, search for Twitter quotes (and freak out when the magazine followed me on Twitter), fact-check. My next internship also was a mix of interesting and lame—and it helped me get a job.

Which brings me to the next obstacle to an Intern Revolution: Internship opponents have a problem staying “on message.” While most coverage of the issue naturally tends to focus on the interns themselves, painting them as exploited souls, the real victims of internships are the majority of Americans who can’t afford to work for free and are thus squeezed out of employment opportunities. This fact doesn’t lend itself to sensational The Devil Wears Prada-type stories, but it’s crucially important in a time of low social mobility and high joblessness. While activists squabble over whether college credits are sufficient recompense for a semester of unpaid work (short answer: probably not), lower-income students are finding their post-grad options seriously curtailed.

At best, the anti-internship camp is hopelessly confused about whether interns are privileged or disadvantaged. At worst, it completely ignores the built-in inequality that makes intern culture so troublesome.

What happened to Diana Wang is probably wrong and possibly illegal. But the biggest victims of unpaid internships don’t file lawsuits against their employers, because they can’t afford to get ahead by not getting paid.

Corrections, Feb. 14, 2012: This piece originally misstated that Vanity Fair is owned by Hearst. It is owned by Condé Nast. (Return to the corrected sentence.) This piece also originally misstated the first name of Adam Klein, one of Xuedan Wang’s lawyers. (Return to the corrected sentence.)

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