April 30, 2019; Bloomberg News, “Law”
The National Labor Relations Board (NLRB) could soon take up a case that would determine whether or not unpaid interns can organize in their workplaces, especially when there is a union present. Readers may remember prior newswires stretching from 2013 to last year in which the rights of interns in a variety of settings from Fox Searchlight Studios to the United States Congress were adjudicated. You may find a listing of these works here, and it is worth noting that different standards apply to for-profits, nonprofits, and the government. This most recent case potentially headed for the NLRB involves a nonprofit.
The practice of not paying interns is by its nature discriminatory, creating a preferential situation for those who have families that can pay their way while the individual is working for free. Thus, if there is material benefit to be gained through the internship (career advancement, for example), the practice of not paying interns privileges the well-to-do.
It should be said here that distinctions are made between volunteers and interns where nonprofits are concerned, the details of which you can read here. In brief, volunteers donate their labor without pay or compensation, while interns receive benefit in the form of academic or professional training experience. In either case, if there’s the expectation that the work could lead to monetary reward or future employment, the official status ought to be “employee.”
Ironically, it is Amnesty International USA (AIUSA) that is asking the NLRB to overturn a ruling that found that the executive director, upon being presented with a petition from interns seeking pay, made unlawful threats against employees. Amnesty International appealed the case based on its assertion that the interns were not employees.
This writeup suggests that if the appeal is also found in favor of the interns, it would give “the Republican-majority NLRB a chance to issue policy that could have broad implications for the nonprofit sector, which relies heavily on unpaid interns, and business.” But if nonprofits do not pay the interns upon whose work they rely now, they certainly should be doing so.
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One former NLRB board member commented that “the state of the law would permit them to go either way, and to go either way without necessarily overruling any” current case law. The Board could agree that the judge’s ruling was correct, thus extending National Labor Relations Act rights to unpaid interns, or it could side with Amnesty International and other similar “employers.” Unfortunately, the NLRB’s leadership under Trump generally weighs in on the side of deregulation.
Of course, the case may never get that far, although the former board member said it would be “consistent with other things they’ve done” for the current board to grab the opportunity to create a precedent.
Amnesty International has begun to pay its interns since the dispute began; in fact, they’d considered doing so before that, which did have an impact on the original case’s judge:
In their arguments to the judge, NLRB lawyers said the interns gained legal protections and rights to organize under the NLRA the moment they filed the petition. In its appeal, AIUSA counters that the federal labor laws shouldn’t have applied to the unpaid interns because there was no “economic component” to the working relationship.
In this case, therefore, the fact that the interns had an expectation of being paid and treated as employees may have changed their legal status automatically.—Ruth McCambridge