The dignity of a living wage

Across America, labor activists and other progressives are calling for a higher federal minimum wage, often citing the personal financial challenges that confront low-paid retail and fast food workers. The current minimum wage is $7.25/hour, though some states have adopted a slightly higher one. Advocates are calling for a new minimum wage ranging from $10.00 to $15.00 an hour.

Whenever a minimum wage hike is proposed or debated, opponents claim that doing so will reduce jobs. At the far end of that spectrum, virulent opponents of any minimum wage law claim that such government mandates are “job killers.”

Yes, I suppose if you got rid of the princely $7.25/hour minimum wage, you could take the same hourly rate and pay three people $2.00/hour and still have a $1.25/hour as a bonus for the CEO. But that’s not “job creation,” it’s exploitation. Take away the minimum wage and you get a labor situation like that in Bangladesh, where wealthy corporations pay factory workers a pittance and subject them to dangerous working conditions. (After all, American factory jobs moved overseas to avoid paying workers good wages and benefits!)

Current minimum wage and low-wage earners often find themselves having to access public benefits such as food stamps to get by. The low minimum wage means, in effect, that American taxpayers are indirectly subsidizing corporations such as Walmart and McDonald’s and their shareholders by supporting living expenses for workers who can’t afford to live on their paltry paychecks alone.

Above all, we need to frame this debate in terms of human dignity. Okay, so maybe that high school senior from an upper middle class family who works part-time to earn spare cash can get by on $7.25/hour. But for those supporting themselves and others, a full-time job at least should pay for the basics. In fact, let’s remember that Congress’s intent behind enacting the federal minimum wage law during the heart of the Great Depression of the 1930s was to provide a living wage. It’s a shame that we have to invoke the hardship of our last systemic economic meltdown to remind ourselves of that.

“Rebellious Lawyering” conference: Discussing origins and meaning of the intern rights movement

From the Rebellious Lawyering conference program book

From the Rebellious Lawyering conference program book

On Friday I was part of a terrific panel discussing unpaid internships at the annual Rebellious Lawyering conference, held this year at Yale Law School. Among other things, we discussed how the emerging intern rights movement got started and how the seeds of litigation challenging unpaid internships were planted. It was an honor to be in the presence of three individuals who are pioneers in the intern rights movement, Eric Glatt, Ross Perlin, and Rachel Bien. More about their signature roles below…

Path to pathbreaking lawsuit

My connection to this august group came about from an article I wrote over a decade ago.

In a 2002 law review article, “The Employment Law Rights of Student Interns” (Connecticut Law Review), I set out a legal framework arguing that many unpaid internships violated minimum wage laws. Frankly, it didn’t cause much of a stir. Rather, over the years it attracted a handful of citations in other law review articles, and this was pretty much about it.

That changed when writer Ross Perlin cited and touted the article in his seminal book, Intern Nation (2011; 2012 updated p.b. edition), the first comprehensive examination of the social, economic, and legal implications of the burgeoning intern economy.

9781844678839 Intern Nation PB

Ross was the first writer to connect all the dots on the intern economy. I regard his book as the bible of a new movement. It’s quite possible that none of this would’ve happened had he not written it.

Among the early readers of Intern Nation was Eric Glatt, an MBA holder and former unpaid accounting department intern for the Fox Searchlight Pictures production of the movie “Black Swan.” Eric spied the references to my law review article, and after reading it he came away with ideas for a lawsuit seeking back wages from Fox. He sought a law firm to explore this possibility, and he found one of the very best in Outten & Golden, a leading plaintiffs’ employment firm in New York City. They decided to file suit, and Rachel Bien, a partner at the firm, would serve as lead counsel.

The lawsuit prompted some media coverage when it was filed, and then the story exploded when, last June, a New York federal district court judge ruled that Glatt and co-plaintiff Alex Footman were entitled to back pay under state and federal minimum wage laws and certified the case as a class action for other Fox interns.

Rachel and Eric are now planning for the case to be heard by the U.S. Court of Appeals.

In the meantime…

As the lawsuit against Fox was percolating, Glatt and others were busy organizing in New York.

Out of the Occupy Wall Street movement came a working group that evolved into Intern Labor Rights. ILR has become the “go-to” informational and organizational presence on challenging unpaid internships. More than any other group, ILR is responsible for branding this as a movement now properly “owned” by a younger generation of activists who are putting their own stamp on it via creative social media outreach, organizing, and advocacy.

From Intern Labor Rights

From Intern Labor Rights

Many more lawsuits challenging unpaid internships have been filed. Some have settled; others are pending. The intern rights movement has hit the court dockets.

There’s so much more I can say, but I’ll save space and simply reference these three excellent resources:

  • Go here for a comprehensive report by Intern Labor Rights documenting the extraordinary developments of 2013.
  • Go here for ProPublica’s wide-ranging investigative project on the intern economy.
  • Go here for an in-depth Boston Globe Sunday magazine cover story on unpaid internships by Melissa Schorr.

Beyond unpaid internships

The discussion about unpaid internships at the Yale conference quickly evolved into a broader examination of social, economic, and political ramifications concerning students, recent graduates, and work, especially as it pertains to law students and new lawyers who want to do public interest work.

There’s a particular dilemma here for those who want to extend legal services to the poor, while not wanting to deprive law students and lawyers from compensation for their work, especially during rough economic times for the legal profession. Because most of the unpaid intern litigation has focused on for-profit corporations, the applications of wage & hour laws to the non-profit sector are unsettled. In a nutshell, federal minimum wage laws do not exempt non-profit employers, but they also allow for taking on volunteers. Hence, there’s a massive gray area for legal pro bono work.

In addition, the dialogue explored the implications of the intern economy for work in general. What happens when young people get caught in a cycle of constant unpaid “opportunities,” with no paying work on the horizon? Indeed, the narrower focus on internships per se is giving way to a broader inquiry about employment, jobs, and the labor market in the midst of the meltdown economy, as it should.

***

Nostalgic, already

Please forgive a brief nod to my Cancerian nostalgic side, but at the conference I couldn’t help but reflect upon a December 2011 meeting with Eric, Ross, and journalist Tiffany Ap at my favorite Manhattan diner. Ross’s book had been published earlier that year, and Eric had filed his lawsuit in September. As you can read from the tone of my write-up on our get together, we had very little idea of what was to come.

Since then, it has been my pleasure to serve in a background, resource role to this growing movement. As I suggested above, it is now the province of a younger generation. I’m happy to say that there’s more to come.

You may go here for my 2002 law review article (Connecticut Law Review) on internships and go here for my forthcoming 2014 law review article (Northeastern University Law Journal) discussing legal and policy developments of the past three years.

Published: “Emerging American Legal Responses to Workplace Bullying”

The Temple Political & Civil Rights Law Review has just published my article, “Emerging American Legal Responses to Workplace Bullying,” that emerged from the February 2013 symposium on bullying across the lifespan at Temple University’s law school.

The piece provides a short update of legal and policy developments concerning workplace bullying and includes the current template version of the Healthy Workplace Bill. I had posted a draft last year; this is the final published version.

Although the complete collection of articles from the symposium is not yet available online, you can access Prof. Nancy Knauer’s (Temple U.) overview of the symposium issue here. And for my write-up of the Temple conference, go here.

Previous scholarly articles on workplace bullying and related topics

For readers who would like more in-depth explorations of the legal issues concerning workplace bullying and related topics in the U.S., here are links to, and brief summaries of, relevant journal articles I’ve written over the years. Each may be accessed without charge from my Social Science Research Network page. While these articles are published in academic journals, they nevertheless have attracted many readers who are not lawyers or law professors.

Workplace bullying and the law

The Phenomenon of “Workplace Bullying” and the Need for Status-Blind Hostile Work Environment ProtectionGeorgetown Law Journal, 2000 — This is the first in-depth examination of the American legal and policy implications of workplace bullying. Considered a groundbreaking piece.

Crafting a Legislative Response to Workplace Bullying — Employee Rights and Employment Policy Journal, 2004 — This contains and explains the first version of the Healthy Workplace Bill, as well as brief discussions of early legislative and regulatory responses to workplace bullying in other nations.

Workplace Bullying and American Employment Law: A Ten-Year Progress Report and Assessment — Comparative Labor Law & Policy Journal, 2010 — This piece is part of a collection of articles looking at enacted and proposed legal responses to workplace bullying on an international scale. It contains an updated version of the Healthy Workplace Bill.

Workplace bullying generally

Workplace Bullying and Ethical Leadership — Journal of Values-Based Leadership, 2008 — This article provides a general overview of workplace bullying and its implications for organizational leadership.

Employee dignity generally

Human Dignity and American Employment Law — University of Richmond Law Review, 2009 — I pulled in a lot of historical and theoretical sources in an attempt to construct a case for making human dignity the primary framework for evaluating and shaping U.S. employment law.

Employment Law as If People Mattered: Bringing Therapeutic Jurisprudence into the WorkplaceFlorida Coastal Law Review, 2010 — This article places employment law issues (including workplace bullying) in the context of therapeutic jurisprudence, the school of legal thought that examines the therapeutic and anti-therapeutic properties of our laws and legal systems.

Making human dignity the centerpiece of American employment law and policy

The cover story of the March/April 2008 issue of Foreign Policy was an article by New York University economist Nouriel Roubini, warning that growing American economic instability was primed to trigger a devastating financial crisis that would reverberate around the world. Of course, Roubini was spot-on in predicting what would happen. Roughly six months later, the economy went into meltdown mode, and we have been living with the terrible consequences since then.

In the fall of that year, I was working on a law review article of much more modest ambition, attempting to pull together an argument for why human dignity should become the framing concept for American employment law. In the article (“Human Dignity and American Employment Law,” University of Richmond Law Review, 2009), I posited that human dignity should supplant the prevailing “markets and management” framework that embraces unregulated markets and unbridled management control of the workplace.

Over the weekend, I thought about how we are now in Year Six of the “new normal,” as defined by high unemployment and flattened paychecks that confront so many Americans — not to mention the millions of others around the world who have suffered from our hurtful system of trickle-down economics. I pulled up my 2009 article and turned to the conclusion, where I had offered some points on how to shift our workplace laws in the direction of valuing human dignity:

First, we must remain steadfast and unapologetic in calling for dignity in the workplace, even at the risk of being labeled foolish or naive. . . . In the face of likely criticism and even ridicule, we must make the case, without embarrassment, that workers should not have to check their dignity at the office or factory door.

Second, it is important to understand how we got to this place. The markets and management framework did not achieve dominance overnight or by accident. Its current, enduring incarnation has been the result of careful, patient, and intelligent intellectual spadework and political organizing. . . .

Third, just as the emergence of the markets and management framework was part of a broader political, social, and economic movement, the call for dignity at work cannot be made in a vacuum. . . . [D]enials of dignity occur throughout society, and therefore call for connected rather than atomized responses.

Finally, we must work on crafting messages that persuade the general public and stakeholders in employment relations. . . . [W]e need to translate these ideas into messages that reach people in legislatures, courts, administrative agencies, union halls, board rooms, and the media. This will not be easy, but at stake is nothing less than the well-being of millions of people who work for a living and those who depend on them.

Some five years after publication, I don’t think I’d change many of the words or points in that article. If anything, they are more compelling today, as the ravages of the Great Recession continue and worker power remains at a low ebb. Government measures undertaken in the immediate aftermath of the stock market crash helped to stave off complete disaster, but they fell well short of the needed paradigm shift for our economy, jobs, and workplaces.

To be sure, we still have our work cut out for us.

Should we disparage non-disparagement clauses?

When Will Blythe was terminated from his job at a San Francisco digital publishing company as part of cost-cutting moves, payment of a measly two-week severance check was conditioned upon his signing an agreement not to disparage his former employer in any way. Instead of signing it, he decided to write about it in a New York Times op-ed piece:

Around the same time, a termination agreement pinged into my inbox. Much of it set forth standard-issue language resolving such matters as date of termination, the vesting of options, the release of all claims against the company, and the return of company property. . . .

What brings me up short is clause No. 12: No Disparagement. “You agree,” it reads, “that you will never make any negative or disparaging statements (orally or in writing) about the Company . . . .” If I don’t agree to this nondisparagement clause, I will not receive my severance — in this case, the equivalent of two weeks of pay. Two weeks? Must be hard times out in San Francisco, or otherwise why the dirt parachute — and by the way, is that the sort of remark I won’t be allowed to make if I sign clause No. 12.

From the standpoint of preserving free speech, Blythe offers a persuasive explanation why he declined to sign the clause. For him, it boiled down to preserving his dignity as a writer.

Common but not necessarily good

Non-disparagement clauses are common in employment separation situations, and for the most part they are legal. But that doesn’t mean they are good things. Such clauses join with the frequent practice of confidential settlements in employment litigation to reduce the amount of sunlight directed at employer practices. They make it more difficult for current employees to be aware of labor relations issues within their places of employment and for potential applicants to obtain potentially helpful information about prospective employers.

Furthermore, as the late legal scholar Thomas Emerson noted, when freedom of expression is suppressed, it typically goes underground. In the digital age, it means angry workers taking to the Internet to post anonymous comments, sometimes unleashing vitriolic language grounded in a pent-up desire to vent.

I realize that there may be practical trade-offs. If, say, a signing a non-disparagement clause brings with it a genuine severance package (as opposed to the “dirt parachute” to which Blythe brilliantly refers) and guarantees of positive job references, then perhaps the exchange is a fair one. Otherwise, the psychic cost to one’s dignity may not be worth it.

Related post

Confidential settlements in employment cases: Poof, as if nothing happened (2011)

It played at a summer near you: “The Unpaid Intern Strikes Back”

As steady readers of this blog know, issues concerning the legal rights and economic exploitation of interns have been bubbling up for several years. However, this past summer marked the true coming out party for the the legal and social movement against unpaid internships.

Here, in quick bullet point fashion, is a summary of what occurred:

  • It started in June, when a New York federal district court ruled in Glatt v. Fox Searchlight Pictures that lead plaintiffs Eric Glatt and Alex Footman, who worked as unpaid interns on the production of the movie “Black Swan,” were entitled to back pay under federal and state minimum wage laws.
  • The Glatt decision triggered a wave of mainstream national media coverage that, in turn, spurred public discussions about the intern economy and whether unpaid internships should be permitted under the law.
  • In the immediate aftermath of Glatt came a marked increase in filings of legal claims for unpaid wages by former interns.
  • ProPublica, the non-profit investigative journalism organization, created a project to examine the intern economy in America and conducted a well-publicized and successful crowd sourced fundraising campaign for a paid project intern.
  • When a senior official with the Lean In Foundation, a charitable organization launched by Facebook executive Sheryl Sandberg to support the careers of women, advertised for an unpaid editorial intern in August 2013, the result was a loud public backlash. Within 48 hours, the Foundation announced that it would create a paid internship program.
  • Interns at the Nation Institute in New York, publisher of the political magazine The Nation, submitted a letter to the editor to the magazine, calling upon it to pay its full-time summer interns a living wage, rather than the $150 weekly stipend it currently paid. The Institute’s director responded by saying that it will raise the internship stipend and raise money for travel and housing grants.
  • As Intern Labor Rights continued its key role as a face-to-face and social media organizing presence in New York, the movement expanded beyond its New York base to Washington, D.C., another common site of unpaid internships. The Fair Pay Campaign went public with a call for the White House to pay its interns, citing the Oval Office’s hypocrisy in calling for a higher minimum wage while failing to pay even the current one to interns for their work.

In sum, it was a breakthrough summer, during which the intern rights movement took a huge step forward.

This was not, however, a development that came out of nowhere. Rather, it was the result of several years of advocacy and public education, much of which occurred under the radar screen.

If you’d like to read more about this recent history, including the intern rights movement and developing legal issues surrounding unpaid internships, I’ve just posted an updated draft (freely downloadable) of my forthcoming law review article, “The Emerging Legal and Social Movement Against Unpaid Internships” (forthcoming, Northeastern University Law Review), which covers events through October 2013. Much of this blog post is drawn from that article.

Condé Nast shutters its internship program in the face of minimum wage lawsuits

Condé Nast, publisher of high-end magazines such as VogueVanity Fair, and GQ, has shuttered its well-known internship program in the face of lawsuits alleging it is in violation of minimum wage laws. Current interns have been paid stipends that average out to about a dollar an hour. Apparently the company decided it was better to stop hiring interns than to pay them the princely minimum wage.

Interview with ProPublica

As part of ProPublica’s investigative project on the intern economyCasey McDermott did a wide-ranging interview with me about the intern economy. From that interview, here are my specific points about the Condé Nast development:

What is your initial reaction to the news that Condé Nast will halt its internship program?

I was disappointed but not surprised. Disappointed because a company like Condé Nast, which publishes high-end, big-budget magazines, certainly can afford to pay its interns the minimum wage. It also strikes me as being very shortsighted. They have an opportunity to evaluate promising candidates for future employment and to help train the next generation of writers and creative people, while gaining the benefit of their work. It could’ve been a win-win, but they opted for the lose-lose.

This move is often cited as one potential drawback to calling for an end to unpaid internships — do you think it will trigger other companies who are facing pressure for internship compensation practices to do the same?

I think it’s a toss-up in terms of what will happen next. Some companies may end their internship programs; others will realize that paying at least the minimum wage is a mutually beneficial move.

Do you think this might affect the pending lawsuit against this company, or those against other companies?

While I can’t get into the heads of judges and speculate on how current events affect their legal analysis, the questions of compensation as set out by the Department of Labor and the courts seem pretty clear cut as to the key factors to be considered. The Condé Nast decision shouldn’t affect judicial and administrative rulings if the standards are properly applied. However, it’s possible that federal and state labor departments will be under increasing pressure from corporate interests to ease off on any enforcement efforts concerning unpaid internships. This may become a more political issue as the intern rights movement gains steam.

Overall, do you anticipate any reduction in internships as a result of increased scrutiny of intern wages and treatment?

I think we’re in a period of potential restructuring of what we’ve been calling the intern economy. Similar to what we’re seeing with health care, there will be some disruption and uncertainty as all this shakes out. It may mean a reduction in the net number of internships offered, but that reduction affects everyone equally in terms of supply.  In addition, given the NACE studies showing that unpaid internships may carry less clout in the entry-level job market, it’s far from clear that an overall reduction in unpaid opportunities will have a negative effect on individual employment prospects.

A “cruel and terrible mistress”?

Condé Nast’s decision is getting a lot of media play, and it has caused at least one writer to dig into the culture of its internship program . Alexander Abad-Santos, blogging for The Atlantic, gives us the scoop on interning for Condé Nast:

The death of the Condé Nast internship program is a lot like being at a funeral for the meanest, most popular girl at school. We’re now at the point where everyone is remembering what an awesome time they had at their internship and forgetting what a cruel and terrible mistress Condé Nast was. It’s not unlike hearing someone talk fondly about being hazed….

Abad-Santos quotes former Conde Nast interns waxing nostalgic about their intern experiences in Cara Buckley’s New York Times piece about the closing of the internship program and then responds:

These people reminiscing fondly about working for free and about a company that didn’t want them to pay them minimum wage. Obviously, having a set of parents willing to pay to have their kids live in New York City makes the memories a little more fond (the former interns who The Times spoke to say that living in New York City without parental aid is impossible). There’s something not right here.

The culture of Condé Nast, Abad-Santos reminds us, was the inspiration for one of the all-time bad boss books and movies, “The Devil Wears Prada.” (For fun, don’t forget to take his “Who Said It, Sorority Sister or Condé Nast Intern?” quiz!)

Stay tuned

As I’ve told reporters about the developing challenges to unpaid internships, stay tuned, there’s more to come. The legal and employee relations issues raised by the intern economy are now sharpening at the point of application and practice, and we’re still in the early stages of having these questions resolved.

***

More about the Condé Nast decision

Here are other pieces in which I was quoted about Condé Nast’s decision:

Wall Street Journal (Lauren Weber)

Fortune (Claire Zillman)

ABA Journal (Debra Cassens Weiss)

Law review article

I’ve authored a forthcoming law review article (“The Legal and Social Movement Against Unpaid Internships,” Northeastern University Law Journal), which analyzes recent legal and policy developments and the emergence of the intern rights movement.

The legal and social movement against unpaid internships

I’ve just posted a draft of forthcoming law review article, “The Legal and Social Movement Against Unpaid Internships,” which will be published in the Northeastern University Law Journal in early 2014. You may download a pdf copy without charge from my Social Science Research Network page.

The draft runs about 24 pages and discusses and analyzes the major developments concerning unpaid internships over the past four years. It is an update of, and sequel to, my 2002 law review article, “The Employment Law Rights of Student Interns” (Connecticut Law Review), which can be downloaded without charge here.

Here’s the article abstract for the new piece:

Until very recently, the legal implications of unpaid internships provided by American employers have been something of a sleeping giant, especially on the question of whether interns fall under wage and hour protections of the federal Fair Labor Standards Act and state equivalents. This began to change in June 2013, when, in Glatt v. Fox Searchlight Pictures, Inc., a U.S. federal district court held that two unpaid interns who worked on the production of the movie “Black Swan” were owed back pay under federal and state wage and hour laws.

This Article examines and analyzes the latest legal developments concerning internships and the growth of the intern rights movement. It serves as an update to a 2002 article I wrote on the employment rights of interns, David C. Yamada, The Employment Law Rights of Student Interns, 35 Conn. L. Rev. 215 (2002). Now that the legal implications of unpaid internships have transcended mostly academic commentary, the underlying legal and policy issues are sharpening at the point of application. Accordingly, Part I will examine the recent legal developments concerning internships, consider the evolving policy issues, and suggest solutions where applicable.

In addition, the intern rights movement has emerged to challenge the widespread practice of unpaid internships and the overall status of interns in today’s labor market. Thus, Part II will examine the emergence of a movement that has both fueled legal challenges to unpaid internships and engaged in organizing activities and social media outreach surrounding internship practices and the intern economy.

This article grew out of my presentation at the March 2013 Northeastern University Law Journal symposium on employee misclassification.

Because it is a first draft, it will undergo edits and revisions, the latter especially if it is published after the Second Circuit Court of Appeals issues decisions on the unpaid intern wage claims that have been certified for appeal.

Unpaid intern cannot bring sexual harassment claim under NYC human rights law, judge rules

A New York federal district court has ruled that a former unpaid intern for Phoenix Satellite Television US, Inc., cannot bring a sexual harassment claim under the New York City Human Rights Law, because the lack of compensation renders her unable to meet the requirement of employee status under the statute.

Judge P. Kevin Castel issued the ruling in Lihuan Wang v. Phoenix Satellite Television US, Inc., on Thursday. The alleged harassment included ongoing social and sexual overtures and physical touching by a bureau chief who supervised the plaintiff’s work.

As reported by Jay-Anne B. Casuga for the BNA’s Daily Labor Report (subscription required):

A female former unpaid broadcasting intern cannot bring a sexual harassment claim under the New York City Human Rights Law because she is not an “employee” within the meaning of the law, a federal judge in New York held Oct. 3, addressing an issue of first impression . . . .

. . . Relying on federal and New York case law, the district court said unpaid interns do not qualify as employees under Title VII of the 1964 Civil Rights Act or the New York State Human Rights Law because of the “absence of remuneration,” which is an “essential condition to the existence of an employer-employee relationship.”

O’Connor v. Davis (1997)

The district court cited favorably to the leading decision on the legal question of whether unpaid interns have standing to sue under employment discrimination laws, O’Connor v. Davis, a 1997 Second Circuit Court of Appeals decision involving a student social work intern who alleged that she was sexually harassed by a staff psychiatrist in the course of an internship with the Rockland Psychiatric Center in New York.

The plaintiff filed suit, claiming, in part, that she was subjected to sexual harassment in violation of Title VII of the federal Civil Rights Act. The Second Circuit Court of Appeals held that O’Connor was not an “employee” within the statutory meaning of Title VII, reasoning that compensation “is an essential condition to the existence of an employer-employee relationship.” The absence of any kind of salary, wages, health insurance, vacation and sick pay, or any promise of such direct or indirect remuneration from Rockland was fatal to O’Connor’s claim of employee status, and consequently, to the Title VII count of her complaint.

EEOC’s position, too

The holding of O’Connor v. Davis apparently represents the current position of the Equal Employment Opportunity Commission, the federal agency charged with interpreting and enforcing America’s employment discrimination laws. Blair Hickman and Christie Thompson reported on this question for ProPublica:

Federal policies echo court rulings. The laws enforced by the U.S. Equal Employment Opportunity Commission, including the Civil Rights Act, don’t cover interns unless they receive “significant remuneration,” according to commission spokesperson Joseph Olivares.

“At least with respect to the federal law that we enforce, an unpaid intern would not be legally protected by our laws prohibiting sexual harassment,” Olivares said in an email to ProPublica.

It’s unclear how many interns are sexually harassed at work. The commission doesn’t keep those statistics, according to Olivares.

***

October 7 additional comments: Because I wanted to post news of this case promptly, I didn’t spend a lot of time parsing out the legal and policy implications. But I’d like to add a few words now.

The court’s holding in this case raises the related issue of whether or not unpaid internships violate federal and state minimum wage laws, a topic that I’ve addressed frequently on this blog, such as this report on the June 2013 Glatt v. Fox Searchlight Pictures decision in which a federal district court held that unpaid interns were entitled to back pay. In instances where an unpaid intern should’ve been paid under the law, the employer benefits two-fold by claiming the lack of pay renders an intern unable to bring a discrimination or sexual harassment claim, no matter how bad the underlying alleged behavior. By not paying an intern in violation of the law, the employer also may escape liability for discrimination or sexual harassment. How’s that for a bad result?!

I soon will be posting a draft of a new law review article that discusses the many recent legal, policy, and advocacy developments concerning the internship economy. It will serve as an update and sequel to my 2002 article, “The Employment Law Rights of Student Interns” (Connecticut Law Review), that discusses the above-mentioned O’Connor v. Davis decision in some detail.

For reasons I explain in my forthcoming article, I believe that the question of covering interns under employment discrimination laws should be dealt with separately from the issues of compensation under minimum wage laws.

***

October 14, 2013 update: Please go here for a short description and free download link to a draft of my new article, “The Legal and Social Movement Against Unpaid Internships” (forthcoming, Northeastern University Law Journal).

“Master and servant”: The roots of American employment law

If you need a big picture, snapshot understanding of the historical origins of American employment law, look no further than the master-servant relationship.

“Master and servant” is a legal term ported over from English common law, centuries ago. It is what it sounds like, a term deeply rooted in hierarchical, subservient personal and occupational relationships. Black’s Law Dictionary (6th ed.), an authoritative legal source, defines it this way:

The relation of master and servant exists where one person, for pay or other valuable consideration, enters into the service of another and devotes to him his personal labor for an agreed period. The relation exists where the employer has the right to select the employee, the power to remove and discharge him and the right to direct both what work shall be done and the manner in which it shall be done.

Dig into legal digests used by lawyers to research points of law and you’ll see that “master and servant” continues to be used as a topical index heading. Furthermore, the dictionary definition above connects directly to the rule of at-will employment, which allows an employer to terminate an employee for any reason or no reason at all. The U.S. is one of a few industrialized nations to retain the at-will rule as its presumptive employment relationship.

Two previous articles help to illustrate the one-sidedness of at-will employment and its significance to the modern workplace:

“On Limiting the Abusive Exercise of Employer Power” (2011)

[Law professor Lawrence] Blades noted that the underlying assumptions supporting the dominant rule of at-will employment — which allows an employer to terminate an employee for any reason or no reason at all – were no longer applicable:

Such a philosophy of the employer’s dominion over his employee may have fit the rustic simplicity of the days when the farmer or small entrepreneur, who may or may not have employed others, was the epitome of American individualism. But the philosophy is incompatible with these days of large, impersonal, corporate employers; it does not comport with the need to preserve individual freedom in today’s job-oriented, industrial society.

At-will employment and the legality of workplace bullying: A brutal combo punch (2011)

In the U.S., the combination of at-will employment and the lack of protections against workplace bullying make for a brutal combo punch that often leaves mistreated workers legally powerless.

In October I wrote a short post criticizing the rule of at-will employment, which allows an employer to terminate an employee for any reason or no reason at all. In America — in contrast to many other nations — at-will is the presumptive employment relationship.

This leaves workers especially vulnerable when they are subjected to severe workplace bullying by a supervisor, enabled by the employer. Because most bullying falls outside the protections of current employment law, workers have scant legal recourse, and employers have little incentive (at least from a liability standpoint) to act preventively and responsively.

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