Recent litigation in the United States has successfully challenged the use of unpaid interns by large corporations. However, recent UK research indicates that ‘third-sector’ organisations – not-for-profits and charities – are amongst the highest users of unpaid interns. This is also true in the legal profession, where many social-justice oriented not-for-profit organisations rely upon this labour source in order to provide much-needed social services.
The current state of play concerning the legal position of unpaid interns working for third-sector organisations in the United Kingdom remains, as a 2013 joint report by Intern Aware and Unite the Union highlights, a gray area. Only ‘workers’, not ‘volunteers’, are entitled to remuneration according to National Minimum Wage legislation. However, deciding whether an unpaid intern is in fact a true volunteer or a worker, due associated worker entitlements, is a difficult and fact-specific assessment. Often the role of an unpaid intern will mimic those of a paid worker in all but name. However, any challenge by those who are in fact ‘workers’ but engaged under the label of an ‘intern’ will often require legal mobilisation beyond the reach of many engaged in such positions.
The joint report also acknowledges the organisational reality of third-sector organisations that engage unpaid interns. In times of austerity, and particularly in the face of swingeing legal aid cuts, these organisations rely upon the energy and skills of interns in order to maintain the services they provide. Not all, but many, of these organisation would not be able to maintain many of the socially critical services they provide without the assistance of this valuable and enthusiastic resource.
Correspondingly, for the intern, a well-structured internship provides invaluable skills and ‘resumé points’ to new graduates elbowing their way into an increasingly competitive job market. To take one example, the latest Bar Barometer published by the Bar Standards Board indicated that in 2010/11 there were 1,422 students enrolled in the Bar Professional Training Course. They were competing (along with other applicants who would have completed the course in previous years, or transferred from solicitors’ practice or foreign jurisdictions) for approximately 450 ‘first six’ pupillage positions. To say the least, competition is fierce, and the practical legal experience gained at an unpaid legal internship may give a candidate a competitive edge. More specifically, as the joint report highlights, unpaid internship positions often replace traditional entry-level paid positions in third-sector organisations. This has knock-on effects for social mobility and may well place third-sector careers beyond the reach of those who cannot afford this unpaid first step.
And herein lies the problem. Internships, particularly in the legal profession, have become an essential string to the bow of an aspiring lawyer. But as long as they remain unpaid, they will remain in the exclusive reach of the financially well-off.
So how can a balance be struck between these competing tensions? Is it possible to allow under-resourced third-sector organisations access to the valuable assistance unpaid-internships provide, without edging out of the market those who cannot afford to work for free?
One initiative set up by Oxford Pro Bono Publico (OPBP) in 2010 seeks to address the current imbalance by providing financial support to students who undertake unpaid or poorly paid public interest law internships. With the support of the University of Oxford Faculty of Law and a small number of private sector donations, OPBP has so far been able to provide modest financial support to around twenty graduate students, and the organisations in which they are placed, who would otherwise not have been able to take advantage of a mutually beneficial internship opportunity.
Recently, OPBP announced that it received a major grant to support its activities, including the expansion of its internship fund. This will allow OPBP to provide further support both to third sector organisations that rely upon unpaid interns in order to provide essential public interest legal services; and to aspiring public interest lawyers eager to support these organisations and to acquire skills and experience which will help them achieve their goals.
Initiatives such as the OPBP internship programme only go part of the way to addressing the dilemmas created by unpaid internships in third-sector organisations. They are a piecemeal and stopgap response to a greater problem. However, they demonstrate how with greater support from all parts of society – from universities which have an interest in promoting their talented graduates and from funding from private organisation which may later reap the benefits of the skills developed by these graduates during their internships – these dilemmas are not necessarily insurmountable.
Laura Hilly is a DPhil Candidate in Law at the University of Oxford, the Managing Editor of the Oxford Human Rights Hub Blog and the former Chair of OPBP.
OPBP mobilises graduate students and Faculty members dedicated to the practice of public interest law on a pro bono basis. As well as running its internship programme, OPBP provides free, high-quality comparative law research for lawyers acting pro bono around the world. OPBP’s work – which was recognised in 2013 by the receipt of the ‘Best Contribution by a Team of Students’ award in the LawWorks and Attorney-General Awards. OPBP welcomes expressions of interest from any individuals or organisations who might wish to support its continued growth: firstname.lastname@example.org