...One more comment to add a little weight to my earlier argument:
Here is video of a discussion on internships from Parliament with MP's Hazel Blears, Julian Huppart, and Eric Ollerenshaw, along with Carl Roper from the TUC.
http://www.youtube.com/watch?feature=player_embedded&v=eShayod1M28
As you will see the MP's are all well aware that unpaid internships are illegal. The meeting is to support Hazel Blears proposal to submit a parliamentary bill to ban the advertising of unpaid internships. I've highlighted a few choice comments from the video for those than cannot access it:
"its a nonsense that unpaid internships are illegal, yet it is not illegal to advertise them"......"it's like aiding and abetting a crime"
"its only people from wealthier backgrounds who can afford to do long term unpaid internships"
"this is an ethic issue"
"are we a society that wants to exploit ambition" or "are we a society that wants to expand opportunity"?
"bad employers use unpaid internships to displace established paid employees" and "in the longer term this reduces the number of opportunities for everyone"
"we will end the practice of unpaid internships" - "its the right and the ethical thing to do!"
Perhaps the Archives-NRA list should take a lead in this, and ban all advertising for unpaid internships?. I am sure the IRMS would be supportive of such action too.
Best Wishes,
Paul
________________________________
From: PAUL DULLER <[log in to unmask]>
To: "[log in to unmask]" <[log in to unmask]>
Sent: Saturday, 17 August 2013, 10:10
Subject: Re: Vacancy for Archives and Records Management Intern, Solutions
Dear All,
I have watched this debate for long enough and feel that I must comment on it. I have two points to make:
i) The first is that the debate on paid or unpaid internship is not limited to archives or the UK alone, but is the subject of a far more global malaise.
ii) The second is that unpaid internships in most cases are illegal (In the UK every time an intern has retrospectively taken their employer to court for not being paid the minimum wage they have won!).
A global malaise
==========
There is an excellent article by Charles Westerberg and Carol Wickersham on the state of play of this in the USA - http://chronicle.com/article/Internships-Have-Value/127231/ or http://www.tpc.edu/images/uploads/emphasis.pdf Their article points out that in the USA:
- In the USA internships are three-way partnerships among an institution of higher education, the internship site, and the student.
- The U.S. Department of Labor is concerned about organisations circumventing fair-wage laws and other worker protections by calling unpaid workers "interns," rather than employees.
- The Fair Labor Standards Act in the US states that "To qualify as a legitimately unpaid internship, the position must provide instruction that "is similar to training which would be given in an educational environment."
- If an internship does not meet the learning goals as set forth in the institution's mission statement, it is something other than an internship—it's a job—and should be compensated as such.
- If an internship serves the learning goals of a College or University, it should be worthy of academic credit - if an internship provides no clear academic connection, paying out in the form of wages is necessary.
- The internship model has worked where "education" is at the heart of the mission and purpose for the internship program. It is not an excuse for free "slave" labor.
- Further concerns include the fact that as interns are not considered employees, they may not be covered by insurance, or other mandatory workplace safeguards.
Unpaid internships in most cases are illegal
=================================
Sites such as http://www.internaware.org/ are now championing the cause of intern's and helping them to make successful post-dated claims for pay. This should be a concern to one and all. InternAware.org state that "Unpaid internships aren’t just wrong; in most cases they are illegal. Under employment law, people who work set hours, do set tasks and contribute value to an organisation are “workers” and are entitled to the minimum wage. This means even if your internship was just about being expected to turn up at a certain time and add some numbers in Excel you are likely to be entitled to pay. And as it is impossible to sign away your rights, even if you have agreed to work without pay you can still claim". While it may be a little know fact, but - Every time an intern has taken their employer to court for not being paid the minimum wage they have won. Intern Aware has already won back thousands of pounds for interns who have been refused
their right to fair pay.
The cases of Keri Hudson and Nicola Vetta who both won back their pay in court serve to highlight this risk. http://www.theguardian.com/media/2011/may/23/unpaid-website-intern-court-victory and http://www.bectu.org.uk/news/548 Equally, it is important to recognise that this is not something new. As earl as 2009, Employment Tribunals have ruled that workers engaged on an 'expenses-only' basis are entitled to payment at least in line with the national minimum wage, in addition to payment for the holiday they accrue. While Archives and other bodies are not excluded from obligations under the national minimum wage regulations, many still seem to be oblivious to them. Unfortunately, ignorance of the law is not a legal defence in such cases.
The questions we need to ask
==================
While I do not claim to be a lawyer or to be offering legal advice, all of the above points raise some fundamental questions. For example:
- Has the UK embraced the US concept of internship, without linking it to academia in the same way - but more as a route to free "slave" labour
- Are we advertising illegal "unpaid jobs" as "internships" and calling unpaid workers "interns," rather than "employees" to circumvent minimum-wage, national insurance and other employment laws?
- What is the legal status of your 'interns' while on-site?
- Does your organisations insurance specifically cover you for such "non-employees"?
- Have you assessed the risk to the organisation of from a compliance perspective, with current minimum wage legislation and liability insurance?
- Are you deliberately breaking 'minimum wage' legislation and Employment Tribunal rulings or are you simply ignorant of the law?
- Is your organisation aware of the high risk of future claims by "interns" claiming back pay (minimum wage) and the high degree of success (100%) of such claims.
In light of all of the above concerns, how many organisations employing interns have formal written approval of their legal and HR departments to do so.
In my opinion, anyone in the UK running an unpaid internship in the UK is taking on a huge risk of a potential future claim for 'back-pay'. As such claims have been 100% successful to date, this risk is high and action should be taken to mitigate it. Just as the UK has embraced the compensation culture prevalent in the US, I predict that we are likely to see an explosion in retrospective claims for back-pay from all of your unpaid interns (both current and previous) certainly after they read this note and visiting internaware.org, if not before.
Best Wishes,
Paul
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