How the Justice Dept. Gets Away With It

 The U.S. Department of Justice is advertising for experienced, licensed “volunteer”  attorneys to work for a year or two without pay alongside Assistant U.S. Attorneys, who earn a starting salary of more than $75,000.

If such an  advertisement was placed by a private employer, it would raise questions of legality? How does the Justice Dept. get away with blatant exploitation of workers?

The Fair Labor Standards Act (FLSA) requires employers to pay workers the minimum wage and overtime except in a few limited circumstances – those who volunteer for religious, charitable, civic or humanitarian non-profit organizations and (you guessed it) individuals who volunteer to perform services for a state or local government agency.  The only time a for-profit employer can get away without paying a worker is when the worker is a so-called “intern,”

All of this comes at a time of high unemployment for lawyers, particularly graduating law school students.

The Wall Street Journal did a story on Sept. 2, 2011 stating there currently is less than one opening for every 100 working attorneys. Unemployment is a serious problem for attorneys, just as it is for every other occupation right now.  The unpaid “volunteers”  displace regular employees. Also, there is just something downright hypocritical about the situation. How can federal prosecutors go after employers who violate the FLSA with a straight face?

Finally, there is a great deal of “classism” in our society. We bemoan the immigrant farm worker who is cheated by the big farm corporation but it’s OK for some reason to exploit attorneys?  Is it some kind of misguided vanity that allows the bar to look at a situation such as this and fail to see the problem?

Without the  FLSA exemption, the use of unpaid Special Assistant U.S. Attorneys (SAUSA) would clearly violate the FLSA.

The SAUSA does not qualify as an intern because training is not the primary purpose of the SAUSA; because the government derives benefit from the SAUSA’s work; and, the SAUSA is doing the work of a regular employee and replaces regular employees.

The SAUSA is already a trained, licensed, experienced professional.  In fact, they have to have “outstanding” academic records and “superior” research and writing skills.   The SAUSA works alongside paid Assistant U.S. Attorneys doing legal research, drafting briefs, conducting hearings and trials, and attending judicial proceedings .  The “volunteer” gets nothing except the dim, uncertain hope of future employment.

Imagine a situation where a SAUSA, who is working for nothing, prosecutes a for-profit employer for failing to pay just wages and overtime.

The DOL issued a “fact sheet” last year listing the circumstances that dictate whether or not an intern must be paid. Essentially, a for-profit institution does not have to pay an employee whose work serves only his or her own interests.  The DOL listed six criteria to determine whether a worker is a bona fide intern:

  1. The internship 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.

There is little question that a SAUSA does not qualify as an “intern” and that is probably why the SAUSA is not called an intern.

Ironically, the Justice Department advertisements assure that it is an “Equal Opportunity/Reasonable Accommodation” employer.

(Note: this is Part II of a story written on Sept. 7, 2011, Justice Department Seeks Law-Unteers)

U.S. Dept. of Justice Seeks Prosecutor Volunteers

(* Note: See Part 2 of this story, How the Justice Department Gets Away with It.)

 Are they kidding?

 The Office of the United States Attorney for the District of Connecticut is seeking applications from attorneys “who are willing to accept an unpaid temporary position” for up to a year doing legal research, drafting briefs, conducting hearings and trials, and attending judicial proceedings.  In other words, they’re seeking volunteer prosecutors who will work alongside paid prosecutors for nothing.

Only applicants with “outstanding academic records” will be considered.  Oh, and applicants must have at least one year of post J.D. experience.

 In what world is it ethically or morally sound to ask a law school graduate who is admitted to the bar of a state and experienced in the practice of law to work for up to a year gratis?

  It’s one thing to be an unpaid intern for a few weeks during the summer while attending law school to get experience and a line for the resume. It is quite another thing to be asked to labor alongside attorneys who are being paid, doing the same work, and meeting the same expectations. The word that comes to mind is exploitation.

One wonders what the U.S. Department of Justice would think about a large farming corporation that invites “volunteers” to work in the fields for a year for little or no pay?  (Is that legal?)

 These attorney volunteers are called “Special Assistant U.S. Attorneys (SAUSA).” They might as well be called “law-unteers.”

Connecticut is not alone in its quest for law-unteers. It’s a trend. Similar ads are posted by the U.S. Attorneys in Massachusetts, Wisconsin, Ohio, Michigan, Tennessee, Illinois, etc. (see http://www.justice.gov/careers/legal/attvacancies.html)

 The sad fact is that this “job” will appeal to  many recent law school graduates who cannot find anything better to do, after being sold a bill of goods by their law schools about a fictional legal job market with six-figure jobs aplenty for newly minted lawyers.

 According to the National Association for Law Placement, only about two-thirds of spring 2010 graduates had jobs requiring law licenses nine months later, a 15 year low. Overall, 87.4 percent of the class of 2010 had any sort of job nine months after graduation, including 11 percent who were working part-time or holding temporary jobs.

 Meanwhile, the typical student leaves law school nearly $100,000 in debt.  The situation is so bleak that the word is out and law school applications have dipped by about 10 percent.

Of course, there are young lawyers with rich parents who will gladly subsidize their offspring for a year of law-unteering at the U.S. Attorney’s Office. However, many lawyers who had to scrape through law school and are burdened with crushing debt will have to work a second or third job so they can law-unteer.

 The unstated premise of all of this is the dream – of a secure position in a respected profession that pays a decent salary and benefits and/or of working as a federal prosecutor on behalf of the United States of America.

 In its advertisement, the Connecticut U.S. Attorney’s Office says: “The SAUSAs will not be hired by this office as Assistant U.S. Attorneys at the conclusion of the SAUSAs’ terms. However, SAUSAs may apply for AUSA positions in the office after completing service as a SAUSA.”

 One might translate this to mean that any lawyer who fails to take advantage of  the incredible opportunity to work for nothing for a year will be at a disadvantage when competing for a full-time position because s/he will lack the experience of the law-unteer.

 And then, the coup de grace. The Connecticut U.S. Attorney states that the “preferred qualifications” for this law-unteer position are: “Prior litigation experience is preferred, but the positions are open to lawyers who are finishing judicial clerkships and to highly qualified lawyers who have recently graduated from law school.”  (Emphasis added).

The vast majority of recent law school grads and lawyers finishing judicial clerkships are under the age of 40. Suppose a retired attorney would like the opportunity to work for the Justice Department without salary? If you happen to be an older (egad!) attorney who is highly qualified it, forget it. Apparently the U.S. Justice Department does not feel compelled to follow the nation’s anti-discrimination laws, including the Age Discrimination in Employment Act, which prohibits discrimination against qualified applicants who are over the age of 40.  But maybe you can discriminate if the “job” is a mirage or a fallacy.

 This is an inside peek at government that Upton Sinclair would appreciate. Speaking about hogs and making sausage. “They had done nothing to deserve it; and it was adding insult to injury, as the thing was done here, swinging them up in this cold-blooded, impersonal way, without pretence at apology, without the homage of a tear. “

(Note: See follow up article written Sept. 14, 2011, How the Justice Department Gets Away With It)