The FLSA dictates that private sector internships must meet the following six criteria, determined by the Department of Labor, to be legal:
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; The internship experience is for the benefit of the intern; The intern does not displace regular employees, but works under close supervision of existing staff; 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; The intern is not necessarily entitled to a job at the conclusion of the internship; and The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
The FLSA further defines interns as "individuals who participate in 'for-profit' private sector internships or training programs ... without compensation," as long as the internships meet each of the above standards. But "if the employer is getting any benefit from the work of the intern, they would have to get someone else to do that work, [whether] that's answering the phone, cleaning, or entering information into a spreadsheet,” Elizabeth Wagoner, the lawyer representing all three of the above intern cases, told The Atlantic Wire.
Unpaid congressional intern duties don't sound too terribly different from the type of stuff media or film industry interns say they deserve pay for. It's "a lot of typical answering-the-phone duties, a lot of admin stuff -- handling, helping the legislative correspondent, constituent correspondence," said Brendan MacArthur, a former unpaid intern for Massachusetts representative Ed Markey. "Making copies and filing certainly happens," he says. But while congressional interns have the same work-for-zero pay experience, they don't have the option of suing. Their unpaid labor is legal under the congressional version of the FLSA, the Congressional Accountability Act, because Congress made it that way.
"I think it would be a difficult case," Wagoner told The Atlantic Wire when we asked if Congressional interns might be able to sue their former employers. "The law is specifically written in this exclusion, so you'd have to challenge the propriety of this exclusion. That is not a problem in the other types of intern cases that you're dealing with in private sector." As the FLSA does not apply to government employees, Congress passed its own version, the CAA, picking and choosing parts of the FLSA it liked, like the right to minimum wage and overtime for "covered employees." The thing is, the CAA regulations defines "covered employee" as "any employee of the House of Representatives, including an applicant for employment and a former employee, but shall not include an intern." The private sector FLSA does not have this same exclusion written into it.
