The Pedagogical, Legal, and Ethical Implications of Unpaid Internships

• Published date: 01 March 2013
• Author: Debra D. Burke,Robert Carton
• DOI: http://doi.org/10.1111/j.1744-1722.2013.01115.x
• Date: 01 March 2013

Journal of Legal Studies Education

Volume 30, Issue 1, 99–130, Winter/Spring 2013

The Pedagogical, Legal, and Ethical

Implications of Unpaid Internships

Debra D. Burke∗and Robert Carton∗∗

I. Introduction

The concept of serving an apprenticeship as a means of training skilled work-

ers dates to the Middle Ages. Apprenticeships in the Middle Ages and during

the Renaissance were typically seven years in duration, in order to ensure that

the masters recouped their investment and that the apprentice was given suf-

ficient time to become skilled and not simply exploited as cheap labor.1The

experience arguably imparted not only artisan skills, but also the tacit skills

needed for professional success,2such as informed intuition, judgment un-

der pressure, ease with clients, and problem-solving abilities, skills that often

improve with experience.3The English apprenticeship system was established

as a national trade program in 1562 with the Statute of Artificers, which was

designed to ensure that master craftsmen would transmit their skills and to

establish rules for managing the system of apprenticeship.4A two-tier system

emerged under which only a master’s child or the child of parents possess-

ing freeholds worth a threshold amount was entitled to serve as a voluntary

∗Professor, Business Administration & Law, Western Carolina University.

∗∗Associate Professor, Entrepreneurship, Western Carolina University.

1J.R. Epstein, Craft Guilds, Apprenticeship, and Technological Change in Preindustrial Europe,58J.

Eco. Hist. 684, 691–92 (1998).

2Id. at 688 n.13 (citing Emma Rothschild, Adam Smith, Apprenticeship and Insecurity, Centre for

History & Economics Working Paper, King’s College, Cambridge, July 1994).

3Rick Newman, 7 New Skills Every Worker Needs,U.S. News & World Rep. (July 26, 2010), available

at http://money.usnews.com/money/blogs/flowchart/2010/07/26/7-new-skills-every-worker-

needs. Such soft skills also can include sensitization to professional behavioral expectations,

which is important to success at work.

4Janet L. Dolgin, Transforming Childhood: Apprenticeship in American Law,31New Eng. L. Rev.

1113, 1121 (1997).

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Journal of Legal Studies Education C2013Academy of Legal Studies in Business

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apprentice, while involuntary apprenticeships were reserved for impover-

ished children, who were not permitted to apprentice in the skilled trades.5

In fact, apprenticeship articles represent one of the first types of personal

covenants or obligations recognized under the English common law.6

The system of apprenticeship, which was instituted in European towns

during feudal times by local trade guilds, transferred to the colonies, where

it became indispensable in the seventeenth and eighteenth centuries for

socializing, educating, and training children to enter trades and professions.7

Usually after contractual negotiations, colonial parents apprenticed their

children between the ages of seven and fourteen to learn a trade and to be

educated.8Within the next centuries this relationship, characterized either

as indentured servitude or as an apprenticeship, was limited to children

of limited economic means.9Apprenticeships persisted in Great Britain but

declined in the United States as the availability of public secondary education

supplanted apprenticeships for labor force training.10

Recently, however, the apprenticeship system is reemerging as a promis-

ing model for improving job skills,11 particularly in the Science, Technol-

ogy, Engineering, and Mathematics (STEM) fields.12 Currently, numerous Web

sites match prospective interns to prospective positions.13 While today

5Id. at 1123.

6S.F.C. Milsom, Historical Foundations of the Common Law 252–53 (2d ed. 1981). Ap-

prentices served in the courts as well. Id. at 52–53.

7Dolgin, supra note 4, at 1118–19.

8Id. “The master and the apprentice’s parent (usually, the father) would profit from the contract.

The apprentice would learn a trade. It was business as usual, as it had been for centuries.” Id. at

1126.

9Id.

10Bernard Elbaum, Why Apprenticeship Persisted in Britain But Not in the United States, 49 J. Eco.

Hist. 337, 339 (1989).

11Jennifer Gonzalez, Apprenticeship Programs Expand with Help of Community Colleges,Chron.

Higher Educ., Sept. 19, 2010, available at http://chronicle.com/article/Apprenticeship-

Programs-Expand/124523/.

12Nick Smith, You’re Hired! Do We Need More Apprentices?,Engineering& Tech, Aug. 8, 2009, at

76–79.

13See, e.g., Intern, Inc., http://www.interninc.com (last visited Oct. 12, 2012) (placement pro-

gram); Start Up Roots, http://www.startuproots.org (last visited Oct. 12, 2012) (fellowship

program for start-up talent); InternshipFinder, http://www.internshipfinder.com/ (last visited

Oct. 12, 2012) (clearinghouse); Urban Interns, http://www.urbaninterns.com (last visited Oct.

12, 2012) (placement service for fast-growing companies).

2013 / The Pedagogical, Legal, and Ethical Implications 101

apprenticeships are typically paid positions, unpaid internships also provide a

vehicle for developing both tacit and job-related skills. Three-quarters of the

ten million students enrolled in America’s four-year colleges and universities

will work as interns at least once before graduating, according to the College

Employment Research Institute, and between one-third and one-half will get

no compensation for their efforts.14 A recent survey reveals that 46 percent of

university career centers reported more unpaid internship postings during

the most recent calendar year compared with 2009–2010;15 notably, however,

more paid internships translated into employment offers than unpaid intern-

ships.16 Are these unpaid internships more exploitive than apprenticeships

of long ago?

This article will examine the pedagogical, legal, and ethical issues con-

cerning unpaid internships and their implication for business education for

the student, the employer, and the educational institution. The recent en-

forcement efforts by the Labor Department against employers that illegally

fail to pay interns makes this a particularly timely discussion to guide all

parties involved in internships. Likewise, the enthusiastic embrace of experi-

ential learning suggests that an internship opportunity, paid or unpaid, may

produce value for the student and prospective employer, and is worthy of a

more in-depth analysis from a pedagogical, as well as an ethical, perspective.

II. Pedagogical Justifications

As Ralph Waldo Emerson observed, “[S]kill to do comes of doing;”17 in-

ternships can provide the opportunity “to do” and hence, to engage in

14Ross Perlin, Unpaid Intern, Complicit Colleges, N.Y. Times, Apr. 2, 2011, available at http://www.

nytimes.com/2011/04/03/opinion/03perlin.html?pagewanted=all.

15Alexis Grant, The Ethics of Unpaid Internships: When Are Unpaid Internships Legal?, U.S.

News & World Rep., July 19, 2011, available at http://money.usnews.com/money/careers/

articles/2011/07/19/the-ethics-of-unpaid-internships?PageNr=1. About 38 percent reported

more paid internship postings. Id.

16Of 20,000 graduating seniors who participated in a recent survey by National Association of

Colleges and Employers, more than half held an internship sometime during their college ca-

reer, and half of those internships were paid. About 60 percent of students who completed a

paid internship in the for-profit sector received a job offer by graduation compared to only 38

percent of students who participated in an unpaid internship. Id. See also Jessica E. Vascella, In-

terns Are Latest Target In Battle for Tech Talent,Wall St. J., Dec. 22, 2011, available at http://

online.wsj.com/article/SB10001424052970204879004577108672160430712.html (discussing

the upswing in the use and hiring of paid interns in the tech fields).

17Quote World, Famous Quotes, http://www.quoteworld.org/quotes/4369 (last visited Oct. 12,

2012).