Stop Exploiting Artists for Free Labor
For profit business or nonprofit organization that solicit artists for unpaid labor for their organization in the form of “interns” or “volunteers” are doing something illegal and downright unethical.. In fact, most forms of volunteerism and unpaid internships are exploitative, illegal and that you could be doing an activity closely related to Labor Exploitation, and need to stop immediately.
Yes, im talking about you, Festival Directors.
Yes im talking about you, Talent Agents.
Yes I’m talking about you, Event Producers.
Questions to ask yourself while considering unpaid labor:
- Do volunteer programs empower or do they exploit artists?
- Does building this kind of workforce benefit communities or hurt them?
- Could essential services be provided instead of volunteers?
Part 1: For Profit Businesses Cannot Hire Unpaid Interns or Volunteers
What is The Department of Labor?
The U.S. Department of Labor enforces The Fair Labor Standards Act (FLSA) which establishes employment standards in for profit businesses. These standards are enforced by the Department’s Wage and Hour Division. When Congress amended the FLSA in 1985, it made clear that people are not allowed to volunteer their services to private for profit businesses.According to the FSLA, the following are required if you operate a for profit business.
- Minimum wage
- Overtime pay
Minimum Wage Requirements under the Fair Labor Standards Act (FLSA)
Minimum Wage Requirements under the Fair Labor Standards Act (FLSA) state that “Covered nonexempt workers are entitled to a Federal Minimum Wage of not less than $7.25 per hour for hours worked. Hours worked ordinarily include all the time during which an employee is required to be on the employer’s premises, on duty, or at a prescribed workplace.
Furthermore, many State Minimum Wage laws have increased minimum wages. Currently, 29 states and D.C. have minimum wages above the federal minimum wage of $7.25 per hour.
State Minimum Ranges
$7.50 – $15.00
States that have $15 minimum wage:
- New Jersey
- Rhode Island
“Employees are subject to both the state and federal minimum wage laws, and therefore the employee is entitled to the higher of the two minimum wages, which is always the state wage.”
Overtime Pay Requirements under the Fair Labor Standards Act (FLSA)
Overtime Pay Requirements under the Fair Labor Standards Act (FLSA) states that “Overtime pay at a rate not less than one and one-half times the regular rate of pay is required after 40 hours of work in a workweek.”
Overtime Pay Ranges
$10.88 – $22.55
Recordkeeping Requirements under the Fair Labor Standards Act (FLSA)
According to recordkeeping requirements under the Fair Labor Standards Act (FLSA) Employers must display a Fair Labor Standards Act (FLSA) Minimum Wage Poster outlining the requirements of the FLSA.
Internships and For Profit Businesses:
According to the Department of Labor, FSLA Fact Sheet 71: Internships ’employees may not intern services to for-profit private sector employers” and. “For-profit’ companies must offer employees a minimum wage and paid overtime.”
Volunteers and For Profit Businesses:
According to the Department of Labor, FLSA Fact Sheet 14: Volunteers, “employees may not volunteer services to for-profit private sector employers.” and For-profit’ companies must offer employees a minimum wage and paid overtime.”
Part 2: Non Profit Organizations Can only Hire Unpaid Interns and Volunteers in Certain Instances
When Congress amended the FLSA in 1985, it made clear that people are only allowed to volunteer their services to public agencies, AKA Non Profit Organizations, whose community objectives include
- Public service
For profit businesses and public sector employers may not hire their employees to volunteer for the same type of services assigned to the employee who “volunteers”. The Department of Labor’s Regulations 29 C.F.R. §553.103 define “same type of services”.
Requirements to Hire an Intern as a Non Profit Organization:
According to the Department of Labor, FSLA Fact Sheet 71: Internships these are the following requirements to hire an intern
- “An intern must clearly understand that there is no expectation of compensation.”
- “An internship must provide training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.”
- “An internship must be tied to the intern’s formal education program by integrated coursework or the receipt of academic credit”
- “An internship must accommodate the intern’s academic commitments by corresponding to the academic calendar’.
- “An internship’s duration must be limited to a period in which the internship provides the intern with beneficial learning.”
- “An intern’s work must complement, rather than displace, the work of paid employees while providing significant educational benefits to the intern.”
- “internship does not lead to a paid job at the conclusion of the internship”
Requirement to Hire a Volunteer as a Non Profit Organization:
The FLSA recognizes the generosity and public benefits of volunteering and allows individuals to freely volunteer in many circumstances for these charitable and public purposes.
- “Individuals may only volunteer time to religious, charitable, civic, humanitarian, or similar non-profit organizations as a public service and not be covered by the FLSA.”
- “Individuals may not volunteer in commercial activities run by a non-profit organization.”
- “Volunteers must only serve on a part-time basis and
- Volunteers may not displace regular employed workers.
- “Volunteers may perform work that would otherwise be performed by regular employees.”
- “Paid employees of a non-profit organization cannot volunteer to provide the same type of services to their non-profit organization that they are employed to provide.”
The FLSA does not define full-time employment or part-time employment. This is a matter determined by the employer. Whether an employee is considered full-time or part-time does not change the application of the FLSA, nor does it affect application of the Service Contract Act or Davis-Bacon and Related Acts wage and fringe benefit requirements.
Part 3: Unpaid Internships and Inequality
“Unpaid internships are exploitation. They are exploitative because the party who benefits the most is also the party with the most power – the employer. And have long-term effects on racial, gender, and economic equity. While the benefits of unpaid internships to the “students” are questionable at best, the benefits to the employer are substantial.” says Jyarland Daniel’s in a LinkedIn Article entitled How Unpaid Internships Undermine Diversity and Inclusion Efforts
Unpaid Internships reinforce Systemic Racism
“Organizations and institutions that are serious about diversity and inclusion must constantly examine their practices to determine if any reinforce systems of oppression; systems that place unfair burdens on minorities, women, and the socioeconomically disadvantaged and breed institutional racism and sexism. Once they begin this analysis, many will find their UNPAID internship program does just that.”
Unpaid Internships Reinforce Gender-based Inequities
“A survey by Intern Bridge found that “3 out of 4 unpaid internships were held by women and the majors reporting the most unpaid internships included education, social sciences, health sciences, communications, and arts.”
Unpaid Internships are Labor Exploitation:
Not only are Unpaid Interships a labor violation according to the Department of Labor, but they are also actually closely related to human trafficking AKA Labor Trafficking. .
Levels of Labor Exploitation:
- Labor Exploitation
- Labor Violation
- Labor Trafficking
Level 1: Labor Exploitation:
According to the National Human Trafficking Organization, Labor exploitation, is when an employer is unfairly benefitting from their employee’s work without compensation and is the leading cause of exploitation, above sexual exploitation and state imposed exploitation, like unpaid prison workers.
People Who May Be More Vulnerable to Labor Exploitation:
- Unstable living situation
- Experienced other forms of violence (sexual abuse or domestic violence)
- Have run away
- Involved in the juvenile justice or child welfare system
- Undocumented immigrants
- Facing poverty or economic need
- Have a caregiver or family member who has a health issue
- Addicted to drugs or alcohol
According to the National Human Trafficking Organization, Labor exploitation may be occurring if any of these red flags are raised during recruitment. Here are a few situations that might raise concerns:
- Job opportunities seem too good to be true.
- Potential employer refuses to give a signed contract
- Potential employer asks to sign a contract in a language you can’t read.
- Potential employer collects fees from a potential worker for the “opportunity” to work in a particular job.
- Potential employer offers gifts or money in exchange for labor
- Work environment becomes overwhelming, fast-moving,
- Work environment is asymmetric (large difference in age or financial status)
- If an employee is offered a romantic relationship while employed in an organization
- If an employee or former employee shows signs of abuse or says they were abused by an organization
- Opportunity requires them to move far away, but potential employer avoids answering questions or is reluctant to provide detailed information about the job.
Level 2: Labor Violation:
All labor violations are labor exploitation, but not all labor exploitation is a labor violation. Labor violations violate federal, state, or municipal laws related to worker treatment, workplace safety, or recordkeeping requirements if you operate a for profit business asking for Volunteers or unpaid interns you are committing a labor violation.
According to the National Human Trafficking Organization, someone may be experiencing labor exploitation if they:
- Feel pressured by their employer to stay in a job they want to leave
- Owe money to an employer
- Are not being paid what they were promised
- Are offered more work by an employer who owes you money
- Do not have control of their passport or other identity documents
- Are living and working in isolated conditions, largely cut off from interaction with others or support systems
- Monitored by another person when talking or interacting with others
- Are being threatened by their employer with deportation or other harm
- Are working in dangerous conditions without proper safety gear, training, adequate breaks, or other protections
- Are living in dangerous, overcrowded, or inhumane conditions provided by an employer
If you operate a business and cannot afford to pay workers minimum wage, your not operating a viable business and should reevaluate your business model. Simple as that. Stop exploiting artists for free labor.
- Department of Labor (DoL) https://www.dol.gov/
- Department of Labor Wage and Hour Division (WHD) https://www.dol.gov/agencies/whd
- Fair Labor Standards Act (FSLA) https://www.dol.gov/agencies/whd/flsa
- Federal Minimum Wage Laws https://www.dol.gov/agencies/whd/minimum-wage
- State Minimum Wage Laws https://www.dol.gov/agencies/whd/minimum-wage/state
- FSLA Volunteers: https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs14a.pdf
- FSLA Internships https://www.dol.gov/agencies/whd/fact-sheets/71-flsa-internships
- FSLA Hours Worked: https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs22.pdf
- FSLA Recordkeeping: https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs21.pdf
- FSLA Public Sector Volunteers https://webapps.dol.gov/elaws/whd/flsa/docs/publicvol.asp
- Regulations 29 C.F.R. §553.103: https://webapps.dol.gov/elaws/leave-dol.asp?exiturl=http://www.ecfr.gov/cgi-bin/retrieveECFR?n=se29.3.553_1103&exitTitle=www.ecfr.gov&fedpage=yes
- Service Contract Act https://www.dol.gov/agencies/whd/government-contracts/service-contracts
- Human Labor trafficking: https://humantraffickinghotline.org/human-trafficking/recognizing-signs