Earlier today, Fox Business’ John Stossel posted an interesting editorial on the website for Reason Magazine about the legality of unpaid interns. Stossel was angry about this fact sheet posted by the Department of Labor last month that cited six clear criteria for an unpaid internship to be legal. However, as Stossel made some good points in the editorial, giving grief to the Obama administration for the law is a bit unfair considering it’s been around for years, possibly even eight decades.

Here’s how Stossel opens his piece:

“Do you employ unpaid student interns—college students who work in exchange for on-the-job training? If so, President Obama’s Labor Department says that you’re an exploiter. The government says an internship is OK only if it meets six criteria, among them that the employer must get ‘no immediate advantage’ from the intern’s activities. In fact, the employer’s work ‘may be impeded.'”

The implication here is clearly that this is a new restriction that Obama’s team recently put in the books. However, that doesn’t seem to be true. For the record, here are the six criteria as stated in the DOL fact sheet:

“The following six criteria must be applied when making this determination:

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

2. The internship experience is for the benefit of the intern;

3. The intern does not displace regular employees, but works under close supervision of existing staff;

4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;

5. The intern is not necessarily entitled to a job at the conclusion of the internship; and

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

While reading Stossel’s editorial, I had the distinct feeling that those six rules (while rarely enforced) had been around forever. Through the magic of Google, I was able to prove my hunch. Here is an article from 2006 which cites the six factors (phrased identically to the current version) as already being a DOL guideline. Even better was this article from the New York Times in 1997 which claims the guidelines have their basis in The Fair Labor Standards Act of 1938 which was well before Barack Obama was born.

I couldn’t find the exact quote with the six factors in the FSLA and to make things weirder, I even found this post which credits a Supreme Court decision from 1947 with the creation of the six factors. Regardless, it’s clear that these guidelines were around before the Obama administration came to power.

The unfortunate thing is, the rest of Stossel’s piece is a really interesting argument for how the law is unfair. But unfairly dragging Obama through the mud only detracts from its credibility.

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