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Abstract

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 résumé, 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.

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