Sheryl Sandberg’s ‘Lean In’ Controversy: Unpaid Intern Post Highlights Legal Limits Of Nonprofit Sector Volunteerism

Updated Saturday, Aug. 17: Rachel Thomas, president of LeanIn.Org, posted on Facebook that the foundation will begin paying its interns moving forward.

Original Post:

In a controversy that begged for punny headlines, Sheryl Sandberg inadvertently "leaned in" to the unpaid-labor debate on Wednesday when a Facebook post seeking an unpaid intern for her nonprofit foundation went viral.

On Tuesday, Jessica Bennett, an editor with Sandberg’s Lean In foundation, posted the following status update:

“Wanted: Lean In editorial intern, to work with our editor (me) in New York. Part-time, unpaid, must be HIGHLY organized with editorial and social chops and able to commit to a regular schedule through end of year. Design and web skills a plus! HIT ME UP. Start date ASAP.”

No shortage of critics and commentators saw irony in the post. Sandberg, the chief operating officer of Facebook Inc. (NASDAQ:FB) and a leading voice for women’s empowerment in the workplace, recently cashed in $91 million worth of Facebook stock. Indeed, even before the intern snafu, Sandberg had come under criticism for her best-selling book, “Lean In: Women, Work and the Will to Lead,” which some detractors saw as coming from a place of privilege.

The Lean In foundation, a nonprofit organization Sandberg founded earlier this year, claims to be “committed to offering women the ongoing inspiration and support to help them achieve their goals.” That it is seeking unpaid labor to fulfill that mission has incensed champions of the burgeoning intern movement, which has fostered a slew of lawsuits in the private sector over the last few years.

In a follow-up to her Facebook post, Bennett clarified that the nonprofit Lean In plays by a different set of rules than for-profit companies:

“Want to clarify previous Lean In post. This was MY post, on MY feed, looking for a volunteer to help me in New York. LOTS of nonprofits accept volunteers. This was NOT an official Lean In job posting. Let’s all take a deep breath.”

Andrea Saul, Lean In’s spokeswoman, confirmed to International Business Times that the group is recognized by the IRS as a tax-exempt 501(c)(3) foundation. That means it can legally use unpaid volunteers, and in fact, many nonprofits rely on them.

But even governed by nonprofit standards, Bennett’s intern post is problematic. First, it identifies the candidate as an editorial intern, not a volunteer. Editorial work is usually done by paid staff, so the prospective intern could conceivably be displacing an employee. Even in the nonprofit sector, that’s a potential labor violation. Second, Bennett said the intern candidate must be able to “commit to a regular schedule through the end of the year.” Nonprofit volunteers are generally used on an “as needed” basis, according to the Nonprofit Risk Management Center. They are volunteering their time, and therefore can’t be required to commit to a schedule.

At the very least, the Lean In controversy may draw attention to an area of labor law that many attorneys find maddeningly ambiguous. The Department of Labor’s Wage and Hour Division allows special exemptions for volunteers in the public and nonprofit sectors, but the legal distinctions are far from settled. Maurice Pianko, a labor lawyer and founder of Intern Justice, told IBTimes that even experts still consider it a gray area.

“Government sector exemption is murky,” he said in an email. “I’m not 100 percent clear on it, and I don’t think anyone is. It has not really been tested in court.”

That is likely to change, however, as the legal tangles over unpaid labor have been spreading from the for-profit sector into other domains. As IBTimes reported earlier this month, the California Labor Commission recently ruled that the University of California, San Francisco, violated the FLSA when it failed to pay a psychology intern minimum wage. While UC is a public university, the hearing officer in the case cited the same criteria used to determine the legality of internships in the private sector.

As of Thursday morning, Sandberg herself has not responded to the controversy, despite a steady stream of angry Twitter posts directed at her account.