One unremarked consequence of the great recession has been the way laid-off workers are being forced to look for employment in places they traditionally would not consider, including unpaid internships. Willy Franzen, founder of the internship aggregator Web site One Day, One Internship, has seen the number of unpaid internships rise recently. This increase of non-traditional interns, if you will, has forced to light the issue of the frequent exploitation of unpaid interns and what can be done about it.

Before the economic downturn, some internships were available for most college students or recent graduates who wanted one, Franzen said. Now that others are jumping into the internship field though, he believes it’s only a matter of time before the question of legality comes up in court.

But can unpaid internships actually be illegal? If so, then how are top, high-profile companies in industries across the board getting away with this possible criminality?

The United States Department of Labor provides six criteria that must all be met for the student to not be considered an employee and therefore does not have to receive compensation.

The six criteria include:

1. – “The training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in a vocational school;
2. – The training is for the benefit of the trainee;
3. – The trainees do not displace regular employees, but work under close observation;
4. – The employer that provides the training derives no immediate advantage from the activities of the trainees and on occasion the employer’s operations may actually be impeded;
5. – The trainees are not necessarily entitled to a job at the completion of the training period; and
6. – The employer and the trainee understand that the trainees are not entitled to wages for the time spent in training.”

Most of these rules are easily met, but rule four is problematic: that the employer “derives no immediate advantage from the activities of the trainees.” Unless the only task an intern is doing is literally fetching coffee, any other activity no matter how mundane could be seen as a benefit (and depending on how sleep-deprived the office is, providing coffee might even be considered such). If the employee that would normally be making copies is freed up to be more productive because of an intern, isn’t that “immediate benefit” derived directly from the intern?

The Department of Labor has difficulty interpreting its own rules when it comes to this question. Franzen points out some of the DOL’s contradictions in his blog post, “Are Unpaid Internships Illegal?”

But in the end the DOL interprets the rule to mean that the “productive work performed by the mentees would be offset by the burden to the employers…from the training and supervision provided.”

Beyond the question of legality, unpaid internships are still morally questionable and downright exploitative. After all, if you’re a for-profit company who can’t afford to pay a worker minimum wage, you might want to reevaluate your business model.

From students’ perspectives, the problem is that there will always be someone willing to take the unpaid internship. The general notion is that if students want to get ahead in their chosen field, internships, often of the unpaid variety, are necessary to get a foot in the door. And for most professions that notion holds true. Especially in this tough economy, networking and experience factor into future employment more than the classes students took or their GPAs.

If we want this to change, it’s going to have to come in a courtroom. But change won’t come easy, unless one intern is willing to make herself a test case. The Labor and Employment Law Blog explains why most interns won’t sue; “in most cases, they fear being blacklisted, as they will undoubtedly need to use the internship as a reference to get any future work.”

It’s high time that someone somewhere steps up and pushes this issue into the forefront via the court system. Maybe then the national exposure could level the playing field among recent college graduates giving a legitimate chance for career success to those who just can’t afford to work full-time without getting paid.