An End to Unpaid Internships in Light of Loper Bright [Note]

Abstract

Internships are prime opportunities for budding professionals to gain experience and get their foot in the door. Every year, almost two million people in the United States work as interns. This number continues to rise—from 17% of college graduates in 1992, to 50% in 2008, to 62% in 2023. However, many internships are unpaid. In fact, over close to half of Class of 2023 college seniors who took part in an internship during college were not paid for their work. A fundamental problem results—while internships are meant to increase opportunity for young professionals, unpaid internships price out too many of them. Indeed, unpaid internships concentrate opportunity among the few who are able to work without pay. This Note envisions the means to an end of the majority of unpaid internships. It summarizes the history of internships and discusses the trainee exception, the legal loophole that, since 1947, has allowed employers to exploit the free labor of interns under the pretext that they are purely training them. This Note further postulates that the Supreme Court’s ruling in Loper Bright, which put an end to Chevron deference, demarcates the issue of intern pay as especially ripe for litigation—judges are now empowered to decide whether to follow an existing Department of Labor (DOL) fact sheet, which has promoted this trainee exception loophole, or propose a new test altogether. Considering these issues which plague the law that governs internships, and in light of Loper Bright, this Note subsequently proposes a novel de minimis beneficiary test: if the employer obtains even a de minimis benefit from the intern’s presence, the intern must be considered an employee, instead of an intern, under relevant employment law. This test would conciliate the sparring employment law viewpoints of recent presidential administrations. It would further provide a viable workaround for a presently fractured and paralyzed Congress. Additionally, it would rectify legal malformations tied to the current model of internships, such as the fact that interns, currently viewed under the law as non-employees, are not legally protected against gender- and race-based discrimination in the workplace—the right to be free from the same is guaranteed by Title VII of the Civil Rights Act. Ultimately, this Note aims to advocate for internships that are in line with established labor practices of the modern day. By pushing for updates to a common law stuck in a bygone era, it advances a future where budding professionals of every background can partake in the intellectual and social training that internships provide while being fairly compensated for their contributions.