Should Law Students Receive Credit for Paid Internships?

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Recently the Wall Street Journal’s Law Blog published an article on a current conversation within the American Bar Association to determine whether law school students should receive credit for paid internships, as well as unpaid internships.

At the moment, students are only eligible to receive credit for internship or externship experience that is unpaid. There is currently an ABA ban on law students receiving both school credit and pay for external work. But, according to the ABA Journal, “the governing council of the ABA Section of Legal Education and Admissions to the Bar has approved for notice and comment a proposal that would eliminate the ban.”

  

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The most common defense of unpaid internships is that they lead to future employment opportunities. However, a 2013 article in the Atlantic asserts that an unpaid internship leading to a job is far less common than the establishment would have students believe. The article cites an NACE study that surveyed over 9,200 college seniors from February through the end of April. The study found that 63.1 percent of students who had worked paid internships had received one or more job offers, while only 37 percent of unpaid interns had received the same offers. To put this in context, the rate of job offers for those who had worked unpaid internships was only 1.8 percent higher than students who had not interned at all.

The growing phenomenon of the unpaid internship has provoked some controversy in recent years. In 2015, the Olson twins were sued by two of their unpaid interns, one of whom claimed that she was “like an employee, except…not getting paid.” Unpaid interns have begun to speak out about being exploited, providing free labor and gaining no pay, college credit, or even relevant experience.

There are, in fact, Federal labor standards regulating unpaid internships. Under the Fair Labor Standards Act, there are six criteria that a for-profit organization (such as a private law firm) must meet in order to legally offer an unpaid internship.

The criteria are available on the American Bar Association website, and read as following:

•the internship, even though it includes actual operation of the facilities of the employer, is similar to training that would be given in an educational environment;

•the internship experience is for the benefit of the intern;

•the intern does not displace regular employers, but works under close supervision of existing staff;

•the employer providing the training derives no immediate advantage from the activities of the intern;

•the intern is not necessarily entitled to a job at the conclusion of the internship; and

•the employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

ABA Immediate Past President Laurel G. Bellows wrote the following:

“[The] ABA supports the department’s efforts to obtain fair wages for those clearly falling under the FLSA, but…the FLSA language was unclear about its application to pro bono internships with private law firms or business law departments.   The ABA agrees that exploitation of law students and other interns is unacceptable, but the FLSA uncertainty inhibited law firms from offering students the opportunity to work on pro bono matters in a real life setting.”

All of these issues have contributed to the ABA proposal that students should receive school credit for paid as well as unpaid internships, repealing the ABA’s current ban on receiving credit for paid internships.

Opponents of repealing the ban, primarily the Society of American Law Teachers and the Clinical Legal Education Association, argue that “To permit credit for students to work for a paying employer is fundamentally inconsistent with a law school’s educational function,” and that doing away with the ban would “discourage students from participating in public interest and public service field placements, which cannot pay them.”

On the other side of the debate is the the New York City Bar Association. President Debra Raskin writes that it “makes no sense” to allow students to earn credit for working for free, but to deny credit to “to that same law student, who may be doing essentially the same job” just because they’re getting paid.

The proposed rule change will be considered by the ABA Section of Legal Education and Admissions to the Bar later this year.