How the 'Black Swan' Unpaid Internship Ruling Could Affect the Film Industry
Even though the labor laws regarding unpaid internships have been rather strict and specific, employers have either largely ignored them or stretched what they considered acceptable within the law. If you've ever done an internship of any kind, whether you were receiving school credit or not, there's a good chance you performed duties that directly benefitted the company, which is one of the tests meant to help companies and interns decide if the job should be paid. For the first time, a judge has ruled that unpaid interns actually should have been paid, in a case involving Alex Footman and Eric Glatt, two interns who sued Fox Searchlight in 2011, a company they say took advantage of them while they were working on the Academy Award-nominated film Black Swan.
Fox Searchlight's argument throughout the case was that the interns didn't work for them, and thus they weren't liable, but that defense was thrown out by the judge (courtesy of The Hollywood Reporter):
Considering the totality of the circumstances, Glatt and Footman were classified improperly as unpaid interns and are 'employees' covered by the FLSA and NYLL. They worked as paid employees work, providing an immediate advantage to their employer and perfomed low-level tasks not requiring specialized training. The benefits they may have received -- such as the knowledge of how a production or accounting office functions or references for future jobs -- are the results of simply having worked as any other employee works, not of internships designed to be uniquely educational to the interns and of little utility to the employer. They received nothing approximating the education they would receive in an academic setting or vocational school. This is a far cry from [the Supreme Court's decision in]Walling, where trainees impeded the regular business of the employer, worked only in their own interest and provided no advantage to the employer. Glatt and Footman do not fall within the narrow 'trainee' exception to the FLSA's broad coverage.
The lawsuit also added interns working in the Fox Entertainment Group internship program, also from The Hollywood Reporter:
The lawsuit then got bigger with amended claims brought by added named plainitffs such as Kanene Gratts, who worked on Searchlight's 500 Days of Summer as well as Eden Antalik, who participated in the FEG internship program. To prevail, they would need to jump several hurdles, including showing that the training programs set up weren't for the advantage of the trainees.
The federal judge in New York has certified a class action that will explore internships throughout the corporate departments at Fox Entertainment Group. Unlike a fellow judge who recently refused to certify a class action for some 3,000 fashion magazine interns working at Hearst, this judge sees commonality and the other factors that are required to move forward such a class action.
Fox obviously disagrees with the ruling, but there are very clear guidelines that companies must follow in order to have unpaid internships -- here are the six criteria that the US Department of Labor uses under the Fair Labor Standards Act (FLSA):
- 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;
- The internship experience is for the benefit of the intern;
- The intern does not displace regular employees, but works under close supervision of existing staff;
- 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;
- The intern is not necessarily entitled to a job at the conclusion of the internship; and
- The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
This ruling could have a major effect on the culture of unpaid internships. While many are for college credit (and required by some colleges, including the one I attended), plenty are simply for experience by those looking to get into a specific industry. I've done a number of internships throughout my career -- some unpaid, some paid -- and I don't think any of them could have passed number 4 above, including the one set up through my school working for Ridley Scott. Ultimately I learned something from all of them, but it would be very hard to argue that any of the companies did not receive an immediate advantage.
That's really why this culture exists. There is so much competition in the Film/TV industries (as well as many others), that we're all willing to go without pay for weeks or months on end to gain experience and connections. The big reason they have continued unchanged for so many years is because they do actually work. How often and to what degree is certainly debatable, but if you're crafty and hard-working, you will gain experience and connections even while you're getting coffee or lunch.
Illegal Internships That Would Be Beneficial
Often interns are doing the grunt work that paid employees would rather not do, but it doesn't necessarily mean the current employees can't do it. What's interesting to me is that while they would be considered illegal, interns would actually benefit the most from internships where they are directly involved in a production in a very meaningful way.
For example, if a production were to hire on-set interns that actually performed real jobs, like 1st/2nd AC, or 1st/2nd AD, that would be invaluable experience, especially if it were on a real production. Would they be taking advantage of said intern, absolutely, but at least the intern would be doing real, meaningful work, rather than just getting coffee, the latter of which most people call paying your dues.
I think the real trouble is when interns do nothing but making copies and grabbing lunch.
What Might Change?
I don't see the government changing the labor laws (this is assuming the ruling isn't struck down by a higher court). Labor laws are there for a reason, and even though many people can and do benefit from internships, the vast majority are breaking these laws. The ruling could mean that many productions hire fewer interns, or simply won't utilize them at all. While that would mean less exploitation in an industry that participates in plenty of exploitative practices, it would also mean fewer opportunities for exposure. That would make it even harder to gain valuable connections in the industry -- many of which can lead to opportunities down the road.
It's really tough to say how this will eventually play out, especially as the laws were already in place, they just haven't been enforced. I'm somewhere in the middle about these internships. I've usually tried to make the best of all of my internship experiences, but that doesn't necessarily mean they should be allowed to be unpaid. Either way, this story is certainly not over, and you can check out the full ruling here.
What do you think? Should these be allowed in their current form? Have you been on internships that would be considered illegal? If so, did you gain anything from that experience? What about internships that were definitely legal? How did the company go out of their way to make it a learning experience?