Published: “The Legal and Social Movement Against Unpaid Internships”

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The Northeastern University Law Journal has published my law review article, “The Legal and Social Movement Against Unpaid Internships.” It offers a comprehensive overview and assessment of major legal, policy, and advocacy developments concerning unpaid internships during the past six years, including the signature Glatt v. Fox Searchlight Pictures, Inc., lawsuit for back wages in unpaid internships, which culminated in a recent decision by the U.S. Courts of Appeals for the Second Circuit.

I posted the original version of this article some three years ago. However, by mutual agreement with the journal’s editors, we postponed a final version and publication to cover developments in the Glatt litigation. Here is the updated abstract:

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 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 movies “Black Swan” and “500 Days of Summer” were owed back pay under federal and state wage and hour laws. Although the decision would be vacated and remanded by the U.S. Court of Appeals for the Second Circuit in 2015, the door to challenging unpaid internships remains open, thanks in part to this litigation.

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. By mutual agreement with the journal editors, we postponed publication of the article to allow for further resolution of the Glatt litigation.

I believe this constitutes the most comprehensive, informed examination of recent developments on this topic in the current law review literature. You may freely download a pdf copy from my Social Science Research Network page.

Published: “Intellectual Activism and the Practice of Public Interest Law”

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I’m pleased to report that the Southern California Review of Law and Social Justice has published my law review article, “Intellectual Activism and the Practice of Public Interest Law.” It’s probably the closest thing to an academic autobiography that I’ll ever write, in that it recounts experiences and draws lessons from the work I’ve been doing during the past fifteen years, including workplace bullying, unpaid internships, and workplace dignity in general.

Here’s the posted abstract from my Social Science Research Network (SSRN) page:

Intellectual activism is both a philosophy and a practice for engaging in scholarship relevant to real-world problems and challenges, putting its prescriptions into action, and learning from the process and results of implementation. In the legal context, intellectual activism involves conducting and publishing original research and analysis and then applying that work to the tasks of reforming and improving the law, legal systems, and the legal profession. This article explores the concept and practice of intellectual activism for the benefit of interested law professors, lawyers, and law students.

This is a very personal piece, grounded in extensive scholarly, public education, and advocacy work that I have done in two areas: (1) fostering the enactment of workplace anti-bullying legislation and building public awareness of the phenomenon of bullying at work; and (2) participating in an emerging legal and social movement to challenge the widespread, exploitative practice of unpaid internships. It also discusses my involvement in multidisciplinary networks and institutions that have nurtured my work, examines the relevant use of social media, and provides examples of how law students can function as intellectual activists. This article closes with an Appendix containing a short annotated bibliography of books that are broadly relevant to the topics discussed in the text.

I wrote the article for those who want to use research and analysis to inform and inspire positive social change work, with a special nod to those who work largely outside of the realm of highly elite educational and public policy institutions.

You may obtain a freely downloadable pdf copy of the article from my SSRN page.

The French (Dis)connection: No work e-mails outside traditional working hours

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Dominique Mosbergen reports for the Huffington Post on a new French labor law that bans after hours work e-mails:

Checking your work email on a weekend or a holiday? In France, where employees have been granted “the right to disconnect,” that’s now against the law.

Buried inside a recently enacted — and hotly contested — French labor reform bill is an amendment banning companies of 50 or more employees from sending emails after typical work hours. “The right to disconnect” amendment, as it’s so called, is aimed at minimizing the negative impacts of being excessively plugged in.

Lest any work-obsessed, provincial American get in a huff and start hurling insults at the collective French work ethic, Lauren Collins offers some clarifying cultural points in the New Yorker:

The notion of the indolent French worker, for one thing, is a fiction: the country’s hourly productivity, for example, rivals that of the United States, and French workers put in more hours a year than their supposedly more industrious German counterparts. The difference, then, is not in our attitudes toward our jobs but in our attitudes toward the rest of our lives. In France, a personal life is not a passive entity, the leftover bits of one’s existence that haven’t been gobbled up by the office, but a separate entity, the sovereignty of which is worth defending, even if that means that someone’s spreadsheet doesn’t get finished on time.

Okay, I’m not suggesting any such law for the U.S. The objections — legal, practical, everything — would come in from all directions, not just from large employers with round-the-clock operations. (Believe me, as an academician I send e-mails to our support staff at all hours of the day and night, though in no way do I expect responses when they’re not working.)

But I raise this to tweak our perspectives about work, work-life balance, and the importance of our time spent away from work. I think it’s especially germane to wage workers and lower-paid salaried workers who are expected to be at the beck and call of their higher-paid co-workers. It would be healthier for everyone if work’s e-influence wasn’t so 24/7. (Yup, I am writing this as a memo-to-self.)

Even if this French law wouldn’t port over well to America, embracing more of its underlying rationale would serve us well. On that note, for sure, Vive la France.

Work-related travel can expand horizons

The Idaho Law and Justice Center (photo: DY)

The Idaho Law & Justice Learning Center, Boise (photo: DY)

On Saturday night I returned from an excellent conference on equality in employment, organized and hosted by the student editors of the Idaho Law Review at the University of Idaho College of Law in Boise. As I wrote last week, I was heading out there to talk about the exploitative aspects of unpaid internships. I also was looking forward to learning more about the work of fellow presenters.

This was a splendid gathering. The panel discussions were interesting and informative, and the conference was organized in a way that provided time for informal conversations in between panels and during meals. (As regular readers of this blog are aware, I’m a big fan of smaller conferences that allow chances for genuine interaction, and this one fit the bill.) I am especially grateful to Idaho Law Review Symposium Editors Molly Mitchell and Ingrid Batey, Professor John Rumel, and Dean Mark Adams for being such warm hosts and for making the event such a stimulating and educational experience.

WPA mural inside Law and Justice Center (photo: DY)

One of the beautiful WPA murals inside the Learning Center (photo: DY)

This all-too-brief visit reminded me of how even work-related travel can expand our cultural horizons. As many of the east coast visitors (including me) observed, this was our first visit to Boise. It was a wonderful chance to discover this charming city and to learn more about the legal profession and legal education in Idaho. The conference was held in the Idaho Law & Justice Learning Center in downtown Boise, an historic old building with an interior featuring vintage Works Progress Administration murals. The downtown area is home to a lot of great architecture, with a very nice selection of shops and eateries, as well as the State Capitol building and other governmental entities. It’s a cool city that I’d be delighted to visit again.

Idaho Law is the only game in town for those seeking a legal education within the state, giving its students a near monopoly on legal internships and part-time jobs. It’s no surprise, then, that Idaho alums play leading roles in the state’s legal, business, and public sectors. For those of us used to bigger cities with multiple law schools competing for attention and access to jobs, it was very interesting to see how this law school plays such a central, hub role for the state’s legal community.

Sharing a humongous apple pancake with Drs. Gary and Ruth Namie

Sharing a humongous apple pancake with Drs. Gary and Ruth Namie

My Idaho visit also allowed me to enjoy a hearty pre-flight breakfast and conversation with long-time friends and colleagues Drs. Gary and Ruth Namie, founders of the Workplace Bullying Institute. Gary and Ruth moved from Washington State to Boise last year to be closer to family. Our meal at a local pancake house not only was gastronomically superb, but also gave us a chance to catch up in person and to do some planning. It was a real treat to see them and left me with even more ideas to contemplate on the ride home.

“Mass exploitation hidden in plain sight”: Idaho-bound to discuss unpaid internships

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Tomorrow I’m off to Boise, Idaho to participate in a conference — “Equality in Employment” — sponsored by the Idaho Law Review. On Friday I’ll be discussing the legal and policy implications of unpaid internships as part of a panel on exploitative labor practices.

The title of my talk and a forthcoming essay to appear in the Idaho Law Review is “‘Mass Exploitation Hidden in Plain Sight’: Unpaid Internships and the Culture of Uncompensated Work.” The first part of the title is a quote taken from a passage in Ross Perlin’s Intern Nation (rev. ed. 2012), with Ross’s blessing.

Here’s the abstract for my talk:

Although gaining internship experience has become a largely expected rite of passage for those seeking entry into many professions and vocations, until recently the legal implications of unpaid internships had remained something of a sleeping giant. In recent years, however, growing attention has been directed to this subject through litigation, legislative advocacy, social activism, and media coverage. My remarks, drawing on previous and current scholarship, will summarize the emergence of the so-called intern economy, examine the two primary legal issues relating to unpaid internships, and discuss several significant, broader policy themes concerning the intersection of internships, education, and the nature of paid employment.

It’s a lot to cover in 25 minutes, but I’ve become pretty good at focusing on the highlights! In addition, I’m looking forward to a stimulating day of presentations and discussions with learned colleagues and students at the University of Idaho College of Law.

Slow retaliation: When workplace payback is subtle, nuanced, and drawn out

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We tend to think of workplace retaliation as being immediate, dramatic, and obvious: An employee files a sexual harassment complaint against her boss and is savagely bullied in response. A worker complains of unsafe working conditions and has his hours reduced. A group of workers engage in a union organizing campaign and are terminated. And so on.

But there’s another, insidious form of retaliation sometimes visited upon those who raise legal and ethical concerns at work. 

This type of retaliation lacks the sudden oomph that easily trips the legal wires of anti-retaliation provisions and whistleblower laws. Rather, it may come in milder doses, such as smaller raises, fewer opportunities for advancement, petty criticisms and slights, and selective marginalization that stops short of complete exclusion. It is subtle, nuanced, and drawn out over time, sometimes morphing into a seemingly organic or cultural practice of treating a dissenter as the Permanent Other.

Less obvious and immediate, and cloaked in the subjective standards of the modern workplace, slow retaliation provides the perpetrators with a veneer of deniability. Even if the target has her suspicions, the tracks have been covered.

Slow retaliation typically occurs in insular, insecure, dysfunctional institutions, and it is often directed at someone whose strong performance would make sharp, full frontal retaliation all too transparent. Of course, if the target of such low-level payback ever commits a transgression or falls short in any way that opens the door for serious discipline or discharge, then the guns will come out blazing with righteous fury: Now we’ve got him in our sights. Fire away.

Legal claims for retaliation are easiest to win when the retaliatory behaviors are significant and come soon after filing a complaint or reporting a concern. By contrast, slow retaliation can be next to impossible to prove, requiring the complainant to piece together a collection of behaviors, often at the hands of different actors, in an attempt to show an orchestrated pattern in response to the triggering act. Short statutes of limitations may complicate matters as well.

The “good” news is that slow retaliation — at least in the lesser form described here — can be tolerable, falling short of behaviors that severely undermine psyches, careers, and livelihoods. This is hardly an ideal state of affairs, but in a world that often requires trade-offs in work situations, at least the target has some degree of self-negotiated choice.

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The sociopathic employee handbook

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I once had an opportunity to review provisions of an employee handbook from a large, mostly non-union employer in the non-profit sector. Like many employee handbooks, there were sections devoted to employee rights, obligations, and performance expectations. On the surface, this handbook seemed to provide a good number of safeguards for workers to prevent unfair treatment and evaluations. But then I read the document more closely, and a chill ran up my spine. It was a cleverly, nay, ingeniously worded document that exposed workers to severe remedial measures, substantial discipline, or even termination for relatively minor inadequacies and transgressions. 

Among my reactions was that this read like the work of a sociopathic lawyer! The handbook contained a lot of cool, calm, bureaucratic-sounding language, mixed in with deftly worded provisions that would allow the employer to make mountains of molehills and to quietly knife people in the back — figuratively speaking, of course.

Employee handbooks are legally significant. During recent decades, state courts have consistently held that handbook provisions can be contractually binding upon employers and employees alike. For better or worse, employee handbooks heavily weighted toward management prerogative are pretty much the norm these days.

However, much worse are those handbooks that have a distant appearance of fairness while actually being loaded with details that can be used to roughhouse rank-and-file employees. I think there is a special place in a certain hot spot for those who write and impose such documents on workers. It is, to be sure, a twisted abuse of power.

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