Geraldshields11 [CC BY-SA 3.0], via Wikimedia Commons

December 2, 2019; Lexology

Last May, NPQ wrote about the case of unpaid interns at the international human rights nonprofit Amnesty International USA (Amnesty) who advocated for pay and were supported in their quest by paid staff of the organization who signed a petition on their behalf. An administrative law judge found that the paid staff’s solidarity action was protected by the National Labor Relations Act (NLRA). The judge also determined that the organization violated NLRA through the actions of its Executive Director. Our coverage anticipated the National Labor Relations Board (NLRB) following Amnesty’s request to overturn the case.

According to the National Law Review, the executive director’s actions in question leading to the original decision included:

  1. “Instructing employees to make complains orally before making them in writing”;
  2. “Threatening unspecified reprisals because of the employees’ protected concerted activity”;
  3. “Equating protected concerted activity with disloyalty”; and
  4. “Requesting employees to report to management other employees who are engaging in protected concerted activity.”

The NLRB did hear the case and, in a unanimous decision, reversed the administrative law judge’s ruling. The Board found that the unpaid interns were not “employees,” and then added that “the actions of the statutory employees in support of benefits sought only by those who were not statutory employees is not conduct protected under the Act.”

The case background detailed in the National Law Review article presents “nearly all” of the organizations’ employees signing a petition to support a group of unpaid interns seeking pay for their volunteer work. Amnesty has typically hired 15 unpaid interns each academic semester.

It is easy to imagine the hardship of typical students both interested in gaining valuable experience and struggling to pay college costs laboring in unpaid internship positions. “Nearly all” of Amnesty’s paid employees supported their quest to get paid for their work. The nation’s highest labor law body ruled that the executive director’s actions were not unlawful and the employees’ solidarity action was not protected by law.

Amnesty International helps “fight abuses of human rights worldwide” as a global movement of “people who take injustice personally.” Their website features a “Modern Slavery Act Transparency Statement” to prevent “contributing to the exploitation of others.” The juxtaposition between the organizational mission and management behavior is ironic. (Management claimed that, prior to the interns’ protest, it planned to shift from having 15 unpaid interns to three paid interns.)

The decision, of course, upholds the right of nonprofits to have unpaid interns. Years ago, NPQ noted that, “It’s no secret that nonprofits rely on the efforts of passionate and committed interns to keep daily operations running. With protection through the US Department of Labor’s guidelines for legal unpaid internships, they have yet to receive any legal pushback for their uncompensated offerings. But this doesn’t mean they’re not doing their unpaid interns an injustice.”

Still, in and of itself, the NLRB’s decision to uphold unpaid internships, while disappointing, is not particularly surprising. A perhaps more far-reaching impact of the decision, however, is the part of the decision saying that paid employees are not protected if they show solidarity with people who are not classified as employees.

Writing for the blog of the Society for Human Resource Management (SHRM), attorney Allen Smith notes the impact of the NLRB decision could be far-reaching. Smith quotes Molly Lee Kaban, an attorney with Harrison Bridgett in San Francisco, who observes that “other types of nonemployees, such as gig workers and other independent contractors, will not be able to rely on support from employees within an organization to advocate on their behalf. Uber employees, for example, can potentially be disciplined or terminated for advocating on behalf of nonemployee drivers who want to be classified as employees. This could lessen the pressure on employers to make changes.”

NLRB board member Lauren McFerran, who concurred with the overall NLRB decision, nonetheless disagreed that workers advocating only for nonemployees are unprotected by labor law. The labor board’s ruling, in this respect, McFerran tells Smith “represents another instance of the [NLRB] majority reaching out to wrongly narrow statutory protections” for workers.—Kori Kanayama