GEORGETOWN UNIVERSITY LAW CENTER

Unpaid and Unprotected

Unpaid Interns Are Denied Needed
Protection from Workplace Discrimination
and Harassment Under Title VII
Matthew Lashof-Sullivan*
5/12/2015

*J.D., Georgetown University Law Center, 2016. I would like to thank my advisor, Gary
Peller, for giving me the time and space needed to work on this project. His
recommendations and discussions about animating principles were inspiring and
invaluable. I would also like to thank Meg Lashof-Sullivan for her patient support
throughout the writing process.

I.

Introduction

In this note I will discuss how courts have dismissed discrimination cases
brought by interns because they determined that interns are not employees within
the meaning of Title VII of the Civil Rights Act. First, I will draw the connection
between wage laws and workplace discrimination laws and argue that interns are
sorely in need of both. Then, I will lay out the traditional exemption from wage laws
for trainees that the Supreme Court created in the case Walling v. Portland
Terminal and argue most interns dont meet the criteria. I will attempt to show that
the Supreme Court misunderstood the benefit trainees seek, and this has led to
courts failure to protect interns under the rubric of Title VII. I will then show that,
in other contexts, courts and agencies have used a more flexible definition of
employee which would cover trainees. Finally, I propose a solution to the question of
what remedies interns should be entitled to under Title VII.
This note will discuss the phenomenon of the modern unpaid internship, how
interns are treated, and the (lack of) labor protections for unpaid interns. For
convenience, I will use the term intern to refer only to unpaid interns. Some paid
employees are also called interns by their employers, but this has no legal
significance since employee status traditionally turns on payment of compensation.
I will also refer to the person or organization who hosts an intern as the employer,
even though as courts have interpreted the law interns are not considered
employees.

Though this note criticizes the practice of the modern unpaid internship, I
participated in one during the very same semester that I am writing this note. I
recognize the irony in this; I bring it up to make a few points. First, I do not claim
that internships provide no benefit to the intern. Clearly, they do provide some
benefit otherwise people (including myself) would not participate in them. Second,
even though I view the systematic practice of employing interns to do substantive
work for no pay to be unethical, I do not believe that a student or young person is
doing anything wrong by trying to do as well for herself within the existing system
as she can. Third, I would like to show how coercive I believe the internship system
to be. Even though I believe the system exploits interns for free labor, I have
determined that submitting to this system is better for me than other available
alternatives. Finally, I would like to recognize that I, as a white male, am privileged
not to need to worry about vulnerability to the discrimination that is the subject of
this note. I am also fortunate to live and work in Washington, D.C., which is one of
the few jurisdictions that has recognized interns are at least as vulnerable to
employment discrimination as employees, and has covered interns under local antidiscrimination law.1

D.C. Code 2-1401.02(9) (West, Westlaw through Feb. 18, 2015) (Employee . . . shall include an unpaid
intern.)

II.

Wage and hour laws and anti-discrimination laws protect workers

from the power of their employers.
Scholars and commentators have long recognized that employers have far

greater power than employees in the employer/employee relationship.2 This is

derived from all peoples need for some income to purchase basic food, clothing, and
shelter, and the fact that a typical worker derives almost 100% of her income from
her employer. By contrast, employers profits typically dont drop to zero with the
loss of any one employee. Thus, the cost of quitting to an employee is her entire
income, while the cost to an employer of terminating an employee is only a portion
of total income.
Because of this disparity in power, employers are largely able to set the terms
of employment.3 One would expect that competition among employers for talent
would tend to mitigate this power, but this effect is limited because few employees
are irreplaceable in their employers businesses, while employees are comparatively
less mobile.4 Terms typically set by employers include hours of work, wage levels,
job qualifications, and working conditions. Some employers even attempt to
regulate their employees non-work-related behavior.5 These exercises of power are
not the subject of this note, but serve to illustrate the level of control that employers
can often exercise over their employees.
2

See generally, e.g., Lawrence Blades, Employment At Will Vs. Individual Freedom: On Limiting the Abusive
Exercise of Employer Power, 67 COLUM. L. REV. 1404 (1967).
3
See id. at 140506.
4
See id. at 141213.
5
Id. at 1407. See also Herx v. Diocese of Fort Wayne-South Bend, Inc., 772 F.3d 1085, 108687 (7th Cir. 2014)
(English teacher at Catholic school fired for using fertility treatments); David Kravets, Worker Fired For Disabling
GPS App That Tracked Her 24 Hours a Day, ARS TECHNICA (May 11, 2015), http://arstechnica.com/techpolicy/2015/05/worker-fired-for-disabling-gps-app-that-tracked-her-24-hours-a-day.

One of the most common qualifications that employers require is work

experience. So many jobs require experience that a common refrain among job
seekers is, How am I supposed to gain experience if Im constantly turned down for
not having any?6 One common piece of advice is to intern to gain experience.7
Society has widely accepted this as normal, but the dynamic actually shows the
massive amount of power that employers are allowed to maintain over young
applicants. The proposition that someone can be expected to work for extended
periods of time for no pay just so they can have a chance at possibly securing paid
employment at some time in the future is staggering.
Given that employers have so much power that job applicants can even be
induced to work for free, government has intervened to prevent some of the worst
abuses of employer power by enacting various workplace laws.8 The two types of
laws that this note is concerned with are wage and hour laws and antidiscrimination laws. Wage and hour laws like the Fair Labor Standards Act (FLSA)
limit employers power to set wages too low or to require covered employees to work
long hours.9 By limiting employers power in this way, FLSA attempts to ensure
that workers wages never fall below its prescribed minimum level, giving them the
6

See Jacquelyn Smith, When An Employer Requires Experience And You Have None, FORBES (May 9, 2012),
http://www.forbes.com/sites/jacquelynsmith/2012/05/09/when-an-employer-requires-experience-and-you-havenone.
7
See id at 2.
8
Although, at the same time that the government enacts laws to restrain the power of employers, it itself also solicits
even highly educated people to work for no pay in positions lasting up to an entire year. See, e.g. Uncompensated
Special Assistant United States Attorney, U.S. DEPARTMENT OF JUSTICE (Jan. 23, 2015),
http://www.justice.gov/legal-careers/job/uncompensated-special-assistant-united-states-attorney-2 (unpaid position
requiring J.D., at least one year of post-graduation experience, a one year service commitment, and an agreement
not to do any compensated outside practice of law).
9
29 U.S.C. 201 et seq. (West, Westlaw through 2015). FLSA has this effect where it applies, but it contains many
exemptions such as for certain agricultural workers, fishermen, and even more specific categories like criminal
investigators and switchboard operators. 29 U.S.C. 213 (West, Westlaw through 2015).

ability to support themselves through work. In an internship, the employer has set
wages all the way down to zero. Court decisions have interpreted the law to allow
this by differentiating between trainees (not covered by FLSA) and employees.10 By
allowing interns not to be covered by FLSA, the courts have undermined the laws
purpose of limiting employers wage-setting power. This also tends to reduce market
wages to the extent that interns are performing work that would otherwise be done
by paid employees.11
Anti-discrimination laws limit employers power to set working conditions in
two ways. First, they prevent employers from setting race or gender as a
prerequisite of employment or promotion. Second, they prevent employers from
requiring, as a condition of employment, that the employee put up with certain
kinds of harassment. This protection can be very important in an internship.
Without legal backing, interns are not in a position to use their own power to stop
harassmentif they were in a position to make demands, they would probably be
paid. Also, the value that the intern receives from an internship depends entirely on
receiving training and recommendations from her supervisors. If a paid employee
leaves a job due to workplace harassment, then at least she leaves with her wages
in her pocket. If an intern leaves an internship due to harassment, she leaves with
nothing at all.
The very fact that interns work for free demonstrates the power that
employers have over them. And yet, the fact they are unpaid has been interpreted
10

See infra Part III.

See Jessica L. Curiale, America's New Glass Ceiling: Unpaid Internships, the Fair Labor Standards Act, and the
Urgent Need for Change, 61 Hastings L.J. 1531, 1537 (2009-2010).
11

by courts as exempting employers from following the very laws that are designed to
reign in employer power. The remainder of this note discusses how courts have
reached this conclusion, the effects this has on interns, and possible judicial and
legislative solutions to this problem.
III.

Are interns trainees? The Supreme Court misunderstood the nature

of the intern/employer relationship.
The Fair Labor Standards Act unhelpfully defines an employee as any

individual employed by an employer.12 However, the act then clarifies that

employ includes to suffer or permit to work.13 This definition is so expansive it
would seem to cover not only interns and trainees, but also volunteers. However, in
Walling v. Portland Terminal Co., the Supreme Court interpreted FLSA not to
include trainees who work only for their own benefit.14 The court analogized the
companys training program to a school, reasoning that of course the trainees, if
they took similar courses in a vocational school unconnected with the railroad,
would not be entitled to wages.15 The Court cites several facts to support this
proposition: (1) the training does not necessarily lead to a job; (2) the trainee does
not displace any actual paid workers; (3) the railroads operations are not expedited
or advanced.16 These criteria led the Court to conclude that the entire program was

12

29 U.S.C. 203(e) (West, Westlaw through 2015).

29 U.S.C. 203(g) (West, Westlaw through 2015). For a discussion of the context and original meaning of suffer
or permit to work, see Bruce Goldstein et al., Enforcing Fair Labor Standards In The Modern American
Sweatshop: Rediscovering The Statutory Definition Of Employment, 46 UCLA L. Rev. 983 (19981999).
14
330 U.S. 148, 152 (1947). The Court held that the act obviously doesnt cover persons who work for their own
advantage on the premises of another. Otherwise, all students would be employees of the schools they attended.
15
Id. at 152-153.
16
Id. at 149150.
13

for the immediate benefit of the trainees, rather than the railroad.17 This is true in
the sense that the railroad was not using the trainees as free labor. However, the
Court misunderstood the nature of the benefit that the trainee received.
The court concludes that the trainees must not be considered employees on
the basis of a comparison with vocational schools.18 However, this comparison elides
a fundamental difference between the vocational student and the railroad trainee.
The student at a vocational school is there to learn transferrable skills in order to
enter the profession generally. For the trainee of the railroad, while he does learn
transferrable skills, those skills are not the reason for his presence in the course.
While the Court accepted the findings that trainees knew they were not necessarily
entitled to a job at the end of the training course, it was also true that no employee
could be hired who had not completed the course.19
In fact, the training course occurred after a traditional job application was
already complete. Before even being eligible for training the trainee had to file a
formal application and take a physical examination and eye test.20 Additionally, the
length of this training program was not fixed. It lasted up to two weeks, but the
trainee could show himself to be competent to serve without supervision prior to
that, and in fact the training lasted an average of seven or eight days.21 As the
dissent in the 1st Circuit pointed out, the trainees were required to report to work

17

Id.
Id. at 153.
19
Id. at 150.
20
Walling v. Portland Terminal Co., 155 F.2d 215, 216 (1st Cir. 1946).
21
Id. at 217.
18

full time at specified hours and were subject to all the hazards and exertions of
ordinary railroad brakeman work22, which is apparently quite dangerous.23 During
this time, they were subject to constant evaluation by the foreman to see if they are
ready to be put on the board as eligible for employment.
Thus, in the process of reaching the result, the Supreme Court
mischaracterized the relationship of the trainee to the employer. The Court
described the program as being like a vocational school, but really it was more like
an extended job application and interview.24 This difference matters for modern-day
interns, because interns (as non-employees) have been held not to be protected by
Title VII of the Civil Rights Act against workplace discrimination and harassment.
Cases reaching this result have relied on this fundamentally educational
understanding of the relationship between the intern and the employer to hold that
interns are not vulnerable to the same extent as employees because they are not
bound by economic necessity, and are always free to leave if their training is
unsatisfactory.25 Since internships often function more like extended auditions than
like the vocational education the court analogized to in Portland Terminal, the
intern is actually more vulnerable to discrimination and harassment because she is

22

Id. at 220 (Magruder, J., dissenting).

See Carl Landeck & Roger Thorne, The Pennsylvania Railroad During World War II, Tredyffrin Easttown
Historical Society 45 (2005) http://www.tehistory.org/hqda/pdf/v42/Volume42_N2_035.pdf (The job of the freight
brakeman was one of the most dangerous jobs on the railroad. . . .).
24
Walling v. Portland Terminal Co., 330 U.S. 148, 153 (1947). (The Fair Labor Standards Act was not intended to
penalize railroads for providing, free of charge, the same kind of instruction [as one would receive at a vocational
school].).
25
See infra Part VI.
23

acutely aware that she is constantly being evaluated by her supervisors as she
seeks the job offer or glowing letter of recommendation.
IV.

Interns are near-universally excluded from the protection of Title

VII by courts relying on Portland Terminals misunderstanding of the

interns benefits.
There have been a number of cases in which interns have sued for
employment discrimination. They have almost universally lost because courts have
held that they are not employees for the purposes of Title VII. For example, in
Tadros v. Coleman,26 a doctor accepted an unpaid position at Cornell Medical
College. When he later filed a Title VII national origin discrimination charge for
failure to hire him as a full-time faculty, his case was dismissed without any
determination of whether he was discriminated against or not because he was not
an employee.
In Haavistola v. Community Fire Co. of Rising Sun,27 a volunteer firefighter
sued for sex discrimination after she was allegedly retaliated against for filing a
sexual assault claim against a co-worker. The Fourth Circuit remanded the case,
not so that the merits of whether the plaintiff was retaliated against could be
litigated, but to determine whether the benefits28 she received were enough to
qualify as compensation.

26

898 F.2d 10 (2d Cir. 1990).

6 F.3d 211 (4th Cir. 1993).
28
The volunteer firefighters, while not receiving salary or pension benefits, were eligible for workers compensation,
group life insurance, and disability insurance due to the hazardous nature of firefighting. Haavistola, 812 F. Supp. at
1387.
27

In Smith v. Berks Community Television,29 an intern sued a TV station for

employment discrimination. The court there held that [u]npaid volunteers are not
susceptible to the discriminatory practices which [Title VII] was designed to
eliminate.30 On the contrary, interns (often described as volunteers) are in many
ways more susceptible to these discriminatory practices, not less. The facts of the
case Lippold v. Duggal Color Projects, Inc.31 demonstrate this susceptibility.
In Lippold, an intern sued a photography studio for sex discrimination,
alleging both hostile work environment and quid pro quo. Jennifer Lippold alleged
that her supervisor touched her breasts and buttocks repeatedly.32 She also claimed
that he refused to sign her timesheets because she rebuffed his advances. Lippold
was placed in the internship at the studio as part of a City College of New York
vocational training program, where she was paid a stipend by the college while
working in an outside placement. In order to complete her education, she needed to
satisfactorily complete her placement.33
The requirement of satisfactory completion gave Lippolds supervisors even
more power over her than they would have had over an employee. While an
ordinary employees livelihood is dependent on her employer, she retains the ability
to quit without penalty. For Lippold, her only option was to contact the coordinator
of her vocational program, notify him of the harassment, and request another

29

657 F.Supp. 794 (E.D. Pa. 1987).

Id. at 795.
31
1998 WL 13854, No. 96 CIV.5869(JSM) (S.D.N.Y. Jan 15, 1998).
32
Id. at *1.
33
Id.
30

placement because if she quit she would receive a failing grade. Lippold in fact did
do this.34 The instructor of the course associated with her placement did not take
any action, and instead told her to learn to deal with it.35 Despite Duggal Color
having even greater power over Lippold than it would over an ordinary employee,
and despite the fact that she actually was paid, the court denied her claim against
Duggal.
One suggestion that is sometimes floated to resolve some of the problems of
internships is this sort of training grant program, where the intern works at an
organization or company and is paid by her school or the government.36 This
relieves the company of the burden of paying novice employees while ensuring that
the intern is compensated for her labor. It has also been suggested that this
alleviates the gap in Title VII that interns otherwise fall into. In this case, such a
program was still insufficient to protect Lippold against workplace harassment and
discrimination. The court required two showings before Lippold could recover from
Duggal Color: (1) the putative employee must be paid; and (2) the defendant must
be the employer. Duggal Color had the authority to control Lippolds work
schedule. She worked in their facilities, used their equipment, and had duties
similar to their regular employees. Nonetheless, the court found that since the
money was not coming from Duggal, they couldnt be the employer. The courts

34

Complaint at 42, Lippold v. Duggal Color Projects, Inc., No. 96 CIV 5869 (S.D.N.Y. Jan. 15, 1998), available at
Westlaw: 1996 WL 34306942.
35
Id. at 55.
36
Bonamici Unveils Opportunities for Success Act - New Bill to Help Low-Income Students Gain Access to
Internships, U.S. REPRESENTATIVE SUSANNE BONAMICI (July 12, 2013), http://bonamici.house.gov/pressrelease/bonamici-unveils-opportunities-success-act-new-bill-help-low-income-students-gain.

rigid determination of employer status is not required by case law, and in other
contexts would actually be erroneous. Compare this courts analysis to the definition
of employ under the Fair Labor Standards Actto suffer or permit to work. In
order to receive the placement with Duggal, Lippold first needed to pass an
interview with the company. They accepted her, and permitted her to work in their
facilities. Unlike in Portland Terminal, there is no contention that Duggal Color did
not benefit from Lippolds work or that Lippold did not displace a paid employee.
V.

Less formalist definitions of employee are available and are used in

other contexts.
In several cases, entities have been found to be joint employers even though

that entity was not directly paying the employee. One case involved McDonalds
franchises; there the NLRB found that the McDonalds corporation was a joint
employer with the franchisee.37 The NLRB determined this because the
McDonalds corporation engages in sufficient control over its franchisees'
operations, beyond protection of the brand, and engaged in a nationwide response
to franchise employees organizing activities.38 Courts have also formulated tests for
joint employer status in the FLSA context. For example, in Zheng v. Liberty Apparel
Co. Inc.,39 the Second Circuit held that an entity could be a joint employer for

37

National Labor Relations Board, McDonalds Fact Sheet (last visited Mar. 8, 2015), available at
http://www.nlrb.gov/news-outreach/fact-sheets/mcdonalds-fact-sheet.
38
Id.
39
355 F.3d 61 (2d. Cir. 2003).

FLSA purposes if it had functional control over workers.40 The Second Circuit
derived this test from Rutherford Food Corporation v. McComb41, a Supreme Court
case decided in 1947, well before Lippold.42 The Third Circuit used a similar test in
Enterprise Rent-A-Car for joint employer status under the FLSA, which is also
intended to determine whether the alleged employer has functional control over the
employee.43
The case for functional control in Lippold is even stronger than it was in
Zheng, and Ms. Lippold easily meets all of the Zheng factors and all four of the
Enterprise factors. Duggal Colors premises were the only place that Lippold
worked, she worked under the supervision of Duggals employees, Duggal controlled
her hours and assignments, and Duggal had control over her timesheets that
needed to be submitted to CCNY in order for Lippold to receive pay and credit. In
short, Duggal Color had almost complete control over Lippolds day-to-day activities
and exercised veto power over her pay and evaluation. There is no good reason why
the court could not have found Duggal Color to be Lippolds joint employer. Instead,
it myopically focused on where Lippolds paychecks were coming from, an approach
40

Id. at *7275. The court applied these factors determine functional control: (1) whether [the putative joint
employer]s premises and equipment were used for the plaintiffs' work; (2) whether the [direct employer] had a
business that could or did shift as a unit from one putative joint employer to another; (3) the extent to which
plaintiffs performed a discrete line-job that was integral to [putative joint employers] process of production; (4)
whether responsibility under the contracts could pass from one subcontractor to another without material changes;
(5) the degree to which the [putative joint employer] or their agents supervised plaintiffs' work; (6) whether
plaintiffs worked exclusively or predominantly for the [putative joint employer].
41
331 U.S. 722 (1947).
42
Zheng, 355 F.3d at 72.
43
See In re Enterprise Rent-A-Car Wage & Hour Employment Practices Litigation, 683 F.3d 462, 469 (3rd. Cir.
2012). The factors the 3rd Circuit applies are: (1) authority to hire and fire employees; (2) authority to promulgate
work rules and assignments, and set conditions of employment, including compensation, benefits, and hours; (3)
day-to-day supervision, including employee discipline; (4) control of employee records, including payroll,
insurance, taxes, and the like. The court then notes that [t]hese factors are not materially different than those used
by our sister circuits, and reflect the facts that will generally be most relevant in a joint employment context.

at odds with Supreme Courts Rutherford precedent and the circuit courts
subsequent interpretations.
In 2014, a group of football players attempted to unionize at Northwestern
University.44 In order to be eligible to unionize, the players must be employees
within the meaning of the National Labor Relations Act.45 In this case,
Northwestern contended that the players were not employeesprimarily because
they are not paid wages.46 The NLRB Regional Director considered and rejected this
contention, based on the economic value that the players receive and control over
the players activities that the University had. He emphasized factors that are
equally applicable to internships.
The Director analyzed whether the players performed services for the
university and whether they received anything of value in return.47 The players
clearly performed valuable services for the universitythe universitys football
program generated $235 million in revenues over a nine year period.48 The Director
then considered whether the players received compensation for their services, as
would be required for them to be considered employees. He determined that the
players scholarships were a transfer of economic value.49 This would be relevant
to an internship because an intern also performs services for an employer, and in

44

Northwestern University employer and College Athletes Players Association (CAPA) petitioner, 201415
N.L.R.B. P15,781 (2014).
45
29 U.S.C. 157 (West, Westlaw through 2015) (Employees shall have the right . . . to bargain collectively
(emphasis added)).
46
Id. at *2.
47
Id. at *41.
48
Id.
49
Id. at *42.

return is supposed to receive training, experience, and recommendations. As the

Supreme Court recognized in Portland Terminal, the employers in that case were
providing training that the trainees would otherwise need to enroll at a vocational
school to receive.50 Yet the benefit of an education, deemed sufficient to support
employee status before the NLRB in Northwestern University, has not been held
sufficient to support employee status under Title VII for interns.
The Director also determined that the players worked under the control of
the university.51 This factor is also almost always met in intern cases. Thus, the
players in Northwestern University received non-monetary compensation in the
form of education, worked for the benefit of the university, and performed their
duties under the control of the university. These factors led the Director to
determine that they were employees for NLRA purposes.52 In intern cases such as
Lippold, the court could have found that the intern received non-monetary
compensation in the form of education and experience, worked for the benefit of the
employer (Duggal Color), and worked under the control of Duggal Color. Though
courts almost uniformly deny relief to interns under Title VII based on the
formalism of a lack of monetary wages, cases such as Northwestern University show
that this stingy position is not required.

50

Walling v. Portland Terminal Co., 330 U.S. 148, 152153 (1947).

Northwestern University, supra note 44, at *45.
52
Id. at *50.
51

VI.

The Portland Terminal conception of a legitimate trainee conflicts

with courts resolutions of Title VII intern cases.
The Court in Portland Terminal described the trainees as working on the

railroads premises for their own advantage.53 The Court explicitly compared the
education the trainees were getting to an education at a vocational school. The
Department of Labor has published a policy fact sheet interpreting the Supreme
Courts decision in Portland Terminal, laying out six factors which are relevant to
the determination of whether an internship program meets the trainee exclusion.54
A circuit split currently exists on the applicability of this test. The 5th, and 8th, and
10th Circuits follow the Fact Sheet #71 test to some degree.55 The 4th and 6th
Circuits instead apply a primary benefit test, asking whether the putative trainee
or employer receive the primary benefit of the relationship.56

53

Portland Terminal, 330 U.S. at 152.

Fact Sheet #71: Internship Programs Under the Fair Labor Standards Act, U.S. DEPARTMENT OF LABOR (2010),
available at http://www.dol.gov/whd/regs/compliance/whdfs71.htm. The test from Fact Sheet #71 is:
1. The internship, even though it includes actual operation of the facilities of the employer, is similar to
training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern;
and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the
internship.
If all of the factors listed above are met, an employment relationship does not exist under the FLSA, and
the Acts minimum wage and overtime provisions do not apply to the intern. This exclusion from the
definition of employment is necessarily quite narrow because the FLSAs definition of employ is very
broad.
54

55

See Donovan v. American Airlines, Inc., 686 F.2d 267, 271 (5th Cir. 1982) (citing an earlier version of fact sheet
71); Petroski v. H & R Block Enterprises, LLC, 750 F.3d 976, 982 (8th Cir. 2014); Reich v. Parker Fire Protection
Dist., 992 F.2d 1023, 1025-26 (10th Cir. 1993) (citing an earlier version of fact sheet 71 as a balancing test).
56
See McLaughlin v. Ensley, 877 F.2d 1207, 1209 (4th Cir. 1989); Solis v. Laurelbrook Sanitarium and School,
Inc., 642 F.3d 518, 525-26 (6th Cir. 2011).

As explained by the commissioner in Northwestern University, an education

has economic value. This transfer of economic value from the employer to the intern
can be considered compensation just as it was considered compensation when
transferred from university to student-athlete. This compensation was enough to
support employee status under the National Labor Relations Act57 and it should
also be sufficient under Title VII. Both the NLRA and Title VII contain unhelpful
definitions of employee, and thus partially rely on the common law employee
relationship.58 However, this reliance on the common law is tempered by the canon
that remedial statutes should be liberally construed.59 Since both statutes rely on
the same source for their tests of employee status, and both statutes are remedial, it
is legitimate to compare tests of employee status under them. Therefore, interns
satisfying the Portland Terminal trainee test and thus receiving vocational training
should have their education counted as compensation (just as it was in
Northwestern University) and thus be considered employees for Title VII purposes.
If an intern is not working for [her] own advantage, then she would not
legitimately be classified as a trainee according to Portland Terminal.60 Of course,
the idea that the company gets no benefit from the deal is a legal fictionif the
company really got no benefit they would not offer internships. In Portland

57

29 U.S.C. 151 et seq. (West, Westlaw through 2015).

29 U.S.C. 152(3) (West, Westlaw through 2015) (NLRA; The term employee shall include any employee. . .
.); 42 U.S.C. 2000e(f) (West, Westlaw through 2015) (Title VII; employee means an individual employed by
an employer. . . .). See also FedEx Home Delivery v. N.L.R.B., 563 F.3d 492, 497 (D.C. Cir. 2009) (NLRA;
common law remains in play, but emphasis shifted); Wilde v. County of Kandiyohi, 15 F.3d 103, 105 (8th Cir.
1994) (Title VII; nearly all circuits use a hybrid of the common law and economic realities).
59
See, e.g., Dennis v. Higgins, 498 U.S. 439, 443 (1991).
60
See supra Part III.
58

Terminal itself, the railroad was able to increase the pool of qualified workers for
the jobs that the railroad wanted to fill. This benefited the company, as even the
Supreme Court recognized by saying that the railroad received no immediate
advantage.61 Regardless how immediate the benefits to the company were, it
would not have offered the training if it did not expect to benefit in some way.
However, most internships fail to meet even this test. Usually, interns
perform substantive work for their employers. In fact, internships where the interns
do not perform substantive work are disfavored, because the intern does not receive
the opportunity to learn on-the-job about whichever business she is interning in.62
Therefore, a catch-22 exists: if the intern is not working for [her] own advantage
such that her education is non-monetary compensation, then that fact raises serious
doubts as to the legitimacy of the training offered by the internship. It is quite
possible that the intern is misclassified, and should be entitled to wages as an
employee, which would also make her eligible for Title VII protection.
VII.

If courts accept that trainees are either compensated in-kind or else

misclassified, volunteers could still be left out.
In addition to trainees under Portland Terminal/Fact Sheet #71, volunteers

are also outside the scope of FLSA.63 The regulations defining a volunteer note that
Congress did not intend to discourage or impede volunteer activities undertaken
61

Portland Terminal, 330 U.S. at 153.

See Michael True, Starting and Maintaining a Quality Internship Program, UNIVERSITY OF VIRGINIA 7,
http://www.virginia.edu/career/intern/startinganinternship.PDF (last visited May 12, 2015) (Number 1 on Ten
Concerns of Interns is Give us real work!).
63
29 C.F.R. 553.101 (West, Westlaw through 2015).
62

for civic, charitable, or humanitarian purposes, but expressed its wish to prevent
any manipulation or abuse of minimum wage or overtime requirements through
coercion or undue pressure upon individuals to volunteer their services, and thus
it requires that volunteers offer their services without promise or expectation of
compensation and without pressure or coercion.64 Non-profit and government
employers, who are eligible to accept volunteers, do not typically categorize their
interns as either trainees or volunteers, which has led to a lack of rigor in
determining which standards properly apply to those interns exemptions from
FLSA.
It is unlikely that many interns are volunteers working for charitable
purposes without coercion, simply by virtue of the designation intern. Most
interns qua interns are working either as part of an organized educational program,
or are working for their own training and networking purposes. There are plenty of
bona fide volunteers, but few if any of them are called interns. If the intern is
working for her own educational or career advancement advantage, then she
engages in the work for selfish, not for civic, charitable, or humanitarian reasons.
Additionally, interns are subject to pressure or coercion, from two sources. First,
many interns are students enrolled in experiential learning programs through their
schools. Once enrolled in such a program, the student faces very strong pressures to
continue work. While these programs are often graded pass-fail, it is possible to fail
an experiential learning course by not completing the requirements. The threat of a

64

Id.

failing grade on ones transcript is strong motivation for any student to continue in
an internship (this was the case in Lippold v. Duggal Color, discussed above). While
the pressure to complete an experiential learning program is internal to the
program, the pressure to enroll in one comes from employers and the job market.
Especially in a sluggish economy, employers expect applicants to have experience
and good recommendations.
For a true volunteer, Title VII protection may not be so relevant. After all, if
a volunteer is working for charitable purposes and is not under any pressure or
coercion to continue volunteering, then she has available the easiest remedy of all
to quit. However, once a so-called volunteer has some reason why it is necessary to
complete a certain amount of time volunteering at the organization, this remedy is
no longer practical and the intern is subject to pressure or coercion to continue
working in an unsatisfactory placement.65 The more that external considerations
would induce an intern to continue working in an unsatisfactory placement, the
more workplace protections are needed and the less legitimate it is to classify the
intern as a volunteer.
VIII. What solutions or remedies could be created to solve the
vulnerability of interns?
When an ordinary employee suffers workplace discrimination or harassment,
she is entitled to certain remedies under Title VII.66 Chief among these remedies

65

See 29 C.F.R. 553.101(c) (West, Westlaw through 2015) (volunteers are only those who offer services without
pressure or coercion).
66
42 U.S.C. 2000e-5(g) (West, Westlaw through 2015).

are reinstatement and back pay.67 Even though these are the specifically
enumerated remedies, a court is also empowered to grant any other equitable relief
as [it] deems appropriate.68 Because interns are not paid, the remedy of back pay
would appear to be useless. Additionally, the education and networking that an
intern would hope to gain from the typical internship is also not likely to be
forthcoming after a reinstatement order.
Other equitable remedies for interns will likely require some judicial
creativity. One possibility is analogous to the back pay remedywages for the time
worked in the internship and the time the intern would have spent in the
internship but for the discriminatory discharge (or constructive discharge). This
remedy would be desirable because it would be a workable way to compensate
interns for their losses. Interns who are victims of discrimination have lost their
expectancy of the benefits they sought from the internship, and also lost all of the
time that they spent working as an intern toward those benefits. A wage remedy
would compensate the intern for the time that she spent working which would
otherwise have been a total loss due to the discrimination. The wages for the time
she would have continued interning but for the discrimination compensate the
intern for the lost expectancy of the non-monetary benefits of the internship.
Monetary compensation is appropriate because it is all that is realistically available
and because the intern can use the money to support him- or herself while working
for those benefits in another internship or in an educational institution.

67
68

Id.
Id.

In addition to the obvious benefits for the intern, this remedy would benefit
society by deterring employers from future discrimination. In order to prevent
employers from harassing or discriminating against their interns, they need to
know that there is a real possibility of liability. Only then would an economically
rational employer be willing to incur costs to comply. As it currently stands, a
rational employer would have no reason to go out of its way to prevent
discrimination or harassment against its interns.
A reasonable objection can be raised that the intern had no expectation of
wages, so the remedy is not restoring to her anything that she legitimately lost. The
justification for the remedy depends on the proper legal classification of the intern:
whether the intern is truly a volunteer working for charitable purposes without
coercion,69 a trainee within the meaning of Portland Terminal and DOLs Fact
Sheet #71,70 or would be more properly classified as an employee.
As discussed above in Part VII, few interns are bona fide volunteers. If
instead the intern is truly a trainee under the Portland Terminal and DOL
standards, then monetary damages compensate the intern for lost training. Just as
an ordinary worker exchanges her labor for wages, an intern labors in exchange for
training. Since the discriminated-against intern has lost that training through the
discriminatory acts of her employer, it is reasonable to compensate her for that loss.
Courts could either award her the value of the training, measured in the amount of

69
70

See 29 C.F.R. 553.101(a) (West, Westlaw through 2015).

See supra Part III.

money it would cost to acquire that training elsewhere,71 or else could award the
value of the labor in the same way that courts do in quantum meruit constructive
contract cases. For interns properly classified as trainees, the value of the labor
would probably be minimal, since to even be a trainee, the employer must derive no
immediate advantage from the trainees labor.72 Therefore, for interns properly
classified as trainees, the measure of relief should be the value of the training that
they should have received. This measure reflects the understandings of the parties
as well as possiblethat the intern would receive training.
For the vast bulk of interns, neither of the narrow categories of volunteer or
trainee are likely to fit. While there has been historically little litigation alleging
abuses of wage and hour laws under the guise of internships, more such cases are
starting to be filed.73 In the meantime, many internships violate the Portland
Terminal/Fact Sheet #71 test but interns are reluctant to come forward, perhaps
because they hope to impress their supervisors and secure paid employment.
However, in the case where the employer has discriminatorily harassed or
dismissed the intern, there is little chance of continuing goodwill by the employer
anyway. Therefore, it is possible that once Title VII is made available to interns,
they may be more likely to litigate discrimination claims than they have been to
litigate FLSA claims.

71

Cf. Portland Terminal, 330 U.S. at 15253 (comparing the training received to learning at a vocational school).
Indeed, the employers operation may occasionally be hindered. See Fact Sheet #71: Internship Programs Under
the Fair Labor Standards Act, U.S. Department of Labor (2010), available at
http://www.dol.gov/whd/regs/compliance/whdfs71.htm.
73
See, e.g., Glatt v. Fox Searchlight Pictures, 293 F.R.D. 516 (S.D.N.Y. 2013).
72

For these misclassified interns, the justification for the back pay remedy
hinges on the interns entitlement to wages under the Fair Labor Standards Act. By
combining the FLSAs unpaid wage remedies74 with Title VIIs back pay remedies,
courts can fashion relief to make interns whole while providing appropriate
deterrent to employers. Since Title VII authorizes whatever equitable relief the
court shall find appropriate, the court could apply the FLSA double damages
remedy to the time actually worked under FLSA itself, and apply it to the time after
discriminatory discharge as other equitable relief under Title VII.75
IX.

Conclusion

Courts have misunderstood why people seek and accept internships, and
therefore misapprehend the protections against discrimination that interns require
and undermined laws meant to limit employer power over employees. Interns fall
into three categories: Trainees within the meaning of Portland Terminal and
Factsheet #71, volunteers within the definition in 29 C.F.R. 553.101(a), and
misclassified employees who should be entitled to wages. Neither courts nor
employers have been rigorous about defining which one interns are.
Few interns are bona fide volunteers. For trainees, courts and agencies have
been flexible when evaluating what counts as compensation for purposes of other
laws that rely on employee status, such as where college football players have
attempted to collectively bargain under the National Labor Relations Act. For bona
74

Under the Fair Labor Standards Act, employers are liable for double damages for unpaid wages. 29 U.S.C.
216(b) (West, Westlaw through 2015) (employer shall be liable to the employee or employees affected in the
amount of their unpaid minimum wages . . . and in an additional equal amount as liquidated damages.).
75
42 U.S.C. 2000e-5(g) (West, Westlaw through 2015) (the court may order any other equitable relief as the
court deems appropriate).

fide trainees, the training they receive should be just as economically valuable as
the education the football players receive when determining if they qualify as
employees. If it isnt, they have probably been misclassified and should have been
entitled to wages under FLSA.
Finally, I proposed remedies that courts could and should fashion within the
statutory framework of Title VII and the Fair Labor Standards Act that would give
interns real protection against discrimination and help make them whole in case
they do suffer it.