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Sep 3, 2013

By John E. Thompson

The unpaid intern ruckus continues to unfold, this time in a way that entangles President Obama.

As we observed back in March 2012, an unpaid White House intern might conclude that he or she is “engaged in the operations of the employer or . . . performing productive work,” activities which U.S. Department of  Labor Fact Sheet #71 says would be viewed as federal Fair Labor Standards Act employment where a business is concerned.

Although a federal law says that the rights and protections of the FLSA apply to “covered employees” in presidential offices, the drafters expressly excluded interns.

A movement to shame the President on interns

But now a movement referring to itself as the “FairPay Campaign” has launched a petition “call[ing] on the White House to pay the interns it employs an hourly wage.” The group’s approach appears to be to cajole and shame President Obama into doing so, including by asserting that not paying the interns would be hypocritical in light of his call for an increase in the FLSA’s minimum-wage rate. A CNNMoney report suggests that spotlighting the White House is part of a soon-to-be-undertaken broader effort aimed at, as the group’s website puts it, “fighting to end Unpaid Internships.”

This heightened publicity takes place against the backdrop of a continued onslaught of lawsuits under the FLSA and/or state laws brought by unpaid or allegedly underpaid interns. We have reported on some of them already (most recently here), but in just the last couple of months others have been filed against Bad Boy Entertainment, Columbia Recordings Corp. (along with Sony Corporation and Sony Music Holdings), and NBC Universal. This escalation is probably attributable in no small part to trolling by attorneys who are developing a specialty in such matters.

We are even more inclined to suspect that, by next spring, informed employers will be thinking long and hard about whether to offer any internships, whether unpaid or paid. Paging through comments entered by some FairPay petition signers will make for interesting reading in this connection.

One may reasonably question whether efforts by FairPay and others will eventually have amounted to “fighting to end” many or even most internships of every kind.

This was originally published on Fisher & Phillips’ Wage and Hour Laws blog.

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