Fact Sheet #71: Shortchanging the Unpaid Academic Intern

On the eve of the Fair Labor Standards Act’s seventy-fifth anniversary, unpaid academic internships threaten to outpace government regulation and undermine opportunities for gainful employment. Although coveted by students eager to fill a line on their resume, unpaid academic internships are a subspecies of unpaid internships that might soon face extinction. While the advent of unpaid internship litigation decreases the likelihood that employers will plead ignorance of the law when they defend against disgruntled unpaid interns, recent litigation does little to clear up a half-century of contradictory case law. The only certainty that surrounds the legal status of unpaid academic internships is that Fact Sheet #71, the current regulatory mechanism, shortchanges the unpaid academic intern. Fact Sheet #71’s six-prong test neither affords meaningful protection nor fosters beneficial learning opportunities. Congress must exchange Fact Sheet #71’s old currency for a new currency, a currency that invests in America’s future and fosters meaningful internship opportunities for students. The key to effective regulation is distinguishing between educationally beneficial and educationally deficient unpaid internships. This distinction will simultaneously safeguard students from unfair employment relationships and allow students to prosper in educationally beneficial opportunities. To successfully revise the current regulations, Congress must first understand why the six-prong test fails to promote uniform interpretation and application. Second, Congress must delegate its regulatory power to the Department of Education, the most qualified agency to measure the educational value of unpaid academic internships. And third, Congress must codify a new test, one that provides a predictable legal framework on which students and employers can rely. Only then, when Congress exchanges its old regulations for new, will Congress stop shortchanging students and invest in their future. ∗ J.D., 2014, University of Florida Levin College of Law; B.A. in English, 2011, Davidson College. I would like to thank the staff and student editors of Florida Law Review for their dedication and diligence throughout the editing process. I am truly grateful for the opportunity to work with and learn from such talented individuals. Special thanks to my family, Justin McConnell, and Professor Randy Nelson of Davidson College for their continued inspiration and support in all of my endeavors. 1 Reid: Fact Sheet #71: Shortchanging the Unpaid Academic Intern Published by UF Law Scholarship Repository, 2015 1376 FLORIDA LAW REVIEW [Vol. 66 INTRODUCTION 1376 I. THE HISTORY OF INTERNSHIP REGULATION 1381 A. Walling v. Portland Terminal, Co.: Where the Internship Train First Derailed 1381 B. Precedent Meets the Modern Internship 1383 C. The Advent of Unpaid Internship Litigation 1386 II. THE MODERN UNPAID INTERNSHIP: IS IT LEGAL? 1389 A. An Endangered Species of Internship 1390 B. An Advocate for Agricultural Exemption 1392 C. The “Intern-Learner” as the New “Learner” Exemption 1393 III. MODIFY, CODIFY, AND DELEGATE: THREE STEPS TOWARD INTERNSHIP REFORM 1395 A. The Department of Education’s Role in Internship Regulation 1395 B. Proposed Revisions 1396 1. Separating Displacement and Supervision 1397 2. Consolidating Disclosure 1398 3. Adopting a Modified Primary Beneficiary Standard 1399 CONCLUSION 1401