The U.S. Department of Labor for the first time has jumped into the fight over unpaid internships. The agency filed a brief last week in support of eight former interns who claim in a lawsuit that the Hearst Corporation owes them back wages.

Some businesses save money by hiring interns rather than regular employees. The Labor Department noted in its filing that the weak economy has made “the promise of free labor...both tempting and available,” resulting in more unpaid internships.

The plaintiffs allege that Hearst made them work full-time hours while receiving no income. The lead plaintiff, Xuedan Wang, says she was at Harper’s Bazaar between 40 and 55 hours a week while performing a variety of duties that paid workers perform, like handling expense reports and managing other interns.

Under Labor Department rules, unpaid interns can’t replace regular employees or do work that provides an “immediate advantage” to the business.

Hearst claims its internships are “designed to enhance the educational experience of students... and are otherwise fully in compliance with applicable laws.”

For decades, the Labor Department has used a six-part test to determine if for-profit employers can legally utilize unpaid interns. Under this system, a violation of any of the six conditions results in the company having to pay its interns as they would any employee.

But the courts have increasingly adhered to a “primary beneficiary” or “totality of circumstances” test that essentially disregards the agency’s six-part test as long as the company can prove the unpaid intern benefits from the internship more than the employer.

In its amicus brief, the Labor Department has asked the Second Circuit Court of Appeals to reject the newer interpretation and reassert the agency’s six-part test.

Other groups of interns have taken employers to court for similar claims. These lawsuits have pursued back wages from Madison Square Garden, Sony Corporation and Fox Searchlight Pictures, which lost its case last summer involving interns who worked on the film Black Swan. That ruling is being appealed, also before the Second Circuit. Condé Nast last week settled with two former interns in a suit similar to the Hearst case.

-Noel Brinkerhoff

To Learn More:

Labor Department Intervenes on Behalf of Hearst Interns (by Kara Brandeisky, ProPublica)

Labor Department Amicus Brief in Hearst Case (ProPublica)

Condé Nast Settles Intern Lawsuit (by Alexandra Steigrad, Women’s Wear Daily)

Unpaid Interns not Protected by Sexual Harassment Laws (by Matt Bewig, AllGov)