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June 13, 2013

How the 'Black Swan' Unpaid Internship Ruling Could Affect the Film Industry

black-swan-movie-posterEven 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):

  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.

Internship Culture

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?

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57 Comments

I did plenty of free labor and payed my dues in the beginning. After every job I learned and would demand more. Eventually I stopped working for free. Eventually my rate got higher. It is partly up to the intern to determine whether or not they are learning or just wasting their time. I have quit internships before, or, in the early days left productions that I wasn't learning anything from.

June 13, 2013

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Completely agree. Intern can always decide for himself if a particular internship worth it or not.

I find it wrong to accept internship at first, and then demand money and sue the company who gave you the opportunity to study.

June 13, 2013

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Andrey Valentsov

If you feel you've been misled and taken advantage of, it's absolutely fair to take action against those who gave you the internship.

June 13, 2013

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Luke

Plus one

June 14, 2013

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Robert Thorpe

Why didn't they just quit if they felt they were being "mistreated"? Oh that's right, because the internship benefited them to a degree that they felt it was worth being there for free, hence why they didn't quit.

June 15, 2013

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Pianohero

My thing is, what were they expecting? It doesn't seem like these guys went into the situation told they were going to be paid and then that was withdrawn from them.

I've had two internships, both unpaid, in professional broadcasting environments. It was made clear to me I'd be doing certain roles, without pay, in order to gain experience, exposure, meet contacts, learn the trade, get college credit, etc. College credit is certainly some kind of compensation, to be sure, but I feel like that's just the nature of this business?

June 13, 2013

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Eric

College credit is not a fair compensation because the student is paying for those credits and doing the work to earn them.

June 13, 2013

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J dub

I semi-agree, but looking at the situation that Digital Domain created a few years ago, certian internships could be seen as exploitation, i.e. students were allegedly paying for the privilege of interning and their labour was incorporated in a pitch to share holders as "free".

The conditions for interns should be clearly discussed with the candidates in detail.

June 13, 2013

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Jerome

Honestly, college in general is overpriced. However, given the relativity of the entire situation, I would argue that college credit is pretty decent compensation for a college student. I personally think that, as long as there is transparency from the companies providing internships, there is no legitimate reason for an intern to complain that they are working, essentially, for free. If you burn your hand on coffee spilled from a cup that reads "WARNING: COFFEE IS HOT" on the side, it's your fault for not paying attention to the message on the side of the cup. So, if you apply for an internship that explains it is unpaid but will offer college credit, how is that any less your fault?

June 13, 2013

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Paul Moore

What you seem to be overlooking, is the LAW... you should be getting an education, not "WORKING"... if your left alone to execute duties, then you're taking a working job from someone, If you're there observing the work and allowed to place your hands on the work, while another watches you.. that's education therefore there is no direct advantage that the company retains from you learning on their production.

June 14, 2013

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Cal

So I guess who all know who won't ever find a job in the industry ever again right?

June 13, 2013

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An employer might be able to change the status by having a perspective intern file for an independent contractor status - wink-wink-nudge-nudge - but it'll probably still be too risky for them in terms of the possible litigation. Some might offer a minimum wage, sort of like the mail room clerks at major talent agencies (do those still exist?), but most will probably drop the program entirely. That said, the ruling is probably a correct one based on the letter of the law.

June 13, 2013

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DLD

I think this will have a huge impact on the internships that are made available. I assume that simply paying your interns minimum wage gets you around these rules, but that means you can only afford to offer one internship instead of two (or whatever). Fewer students get industry experience, and employers see fewer well-vetted potential employees. Who is benefits from this, exactly?

June 13, 2013

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Kevin

It's interesting to me how readily people say that making employers pay more or give greater benefits reduces available jobs overall. It never occurs to the same people to say that, by that logic, executives paying themselves an ever higher percentage of the operating budget must reduce the number of jobs the company is able to provide.

June 13, 2013

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Jackson

Behold truth!

June 14, 2013

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sinyu

Plus infinity

June 14, 2013

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Robert Thorpe

say no to interning=slavery

June 13, 2013

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DIO

I got paid for my internship, and I did skilled labor [never once ran for coffee/ice cream or made photocopies]- but I was unproven in the real world. 6:1, 1/2 a dozen:other

June 13, 2013

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I've never interned since I never had the nest egg that would have allowed me to go months without an income, but I have hired interns for a couple former employers. The first one always paid their interns and was very strict about what hours they could work. The reasoning was that they couldn't pass the labor law test on unpaid internships and that you could ask more from someone you're actually paying. The other one was a bit of a user with unpaid interns. They learned a bit on the job (at least working for me) but they were definitely there to benefit the business as unpaid workers during the busy season.
Internships are fine in theory, but the unpaid ones are also a bit of a hurdle for anyone who isn't a "rich kid" and can't afford to work for free. If all the internships became paid under these rules, then we'd actually see more talent getting promoted.

June 13, 2013

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Andrius Simutis

I see some people are taking a "scarcity" view in regards to this ruling. As to the question of who benefits from this exactly? The interns do. Believe it or not, the vast majority of the problems aren't from people like Fox Searchlight. It's the bottom feeders who take their cues from them.

Fox Searchlight was a good example to be made because there are a ton of shady "production companies" that take their cues by emulating the big boys. Fox may be technically wrong, but the environment they can truly provide makes up for it. What about the tons of two bit production companies run out of some guy's basement? They bring people in for "internships" and basically have the interns run their company for them, since they know nothing, but how to file business paperwork.

A lot of small timers who don't know the business at all are starting LLC's and then talking tough with grads as if they are doing them a favor by letting them work on their Uncle Frankie's screenplay about gangsters.

I don't deny that it may mean fox offers 1 internship instead of two, but if it scares the shady "super low level" internship offers down from 20 to 5.....it's worth it to me.

I hear the scarcity argument, but to me.....this is the bright side of the coin.

June 13, 2013

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I totally agree. In my first internship search I came across and interviewed for so many sketchy "film industry internships". None of them would have given any real world experience and would have only benefited from the free labor. If the company can't pay you then they don't deserve to have interns yet.

Anyways, scarcity will allow for more competition and better intern candidates.

June 13, 2013

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Cameron Savage

Only thing this ruling might change is instead of having interns, we will now have unpaid PA's.

I am personally against having interns, and I don't like having people work for free. Most shows I know don't even hire interns because it is a mess to have them around in case anything happens to them and they are generally unreliable.

And really, the best way to learn in a production office or on a set is to be quiet and listen to all the smarter people around you. This is a business where you really do have to learn while doing.

June 13, 2013

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internships are essentially labor exploitation and tax evasion and have replaced the entry-level job. dont support it, ever.

June 13, 2013

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john jeffries

I'm glad to hear this. As much as people say this stuff always used to go on, the truth is that the world in general has changed: housing is expensive and people can't just walk into other jobs to help pay off their real (but not overly onerous) expenses whilst doing unpaid but rewarding experience.

June 13, 2013

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Vicky

I interned at CRC Chicago Recording Company and they are clearly violating the law. All work no pay, no training or experience to gain anything valuable. Best lesson I learned was F Internships. I quit after a month.

Bottom line if your stupid, you will be pimped.

June 13, 2013

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PayDro

The whole point of interning is getting your foot in the door. Trade skills or a lack of for experience. Maybe the system is flawed in some regard and of course people will take advantage and thats a shame. But I have to say I know and have worked with a number of interns who did great. They were eager, grateful and some really smart. I they didn't strike me as the type that would've allowed themselves to be taken advantage of. You got to make your bones one way or the other and for an opportunity to work in some really fantastic environments I hope this new law doesn't hurt some deserving that shot. Welcome to the age of entitlement and coddling and it goes both ways unfortunately.

June 13, 2013

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Anthony Marino

I think you should get college credit or minimum wage. If the company has to pay minimum wage, maybe they will actually use the people for something useful. The job that I learned the most at was work study, so my employer only had to pay half and financial aid picked up the rest. If you're getting college credit, and the company isn't teaching you anything you should be able to report it to the college. Then two people with lawyers on retainer can duke it out. As for paying for the credits, well, it's case by case. Sometimes paying for those 3 credits and learning you don't want to be an animator during your sophomore year is well worth the money. Learning it as the last thing before you graduate, may not be as helpful.

June 13, 2013

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Sam

Glad this is finally being publicized in a big way. Simple fact is the majority of "internships" are just a sleazy way of getting free labor and there are those who operate their businesses knowing they have this free labor pool.

Now if someone is doing a ultra low budget movie and you going into it knowing you're only getting meals/credit/copy that's different - you are getting real-world experience and an IMDB credit which is different then free office/filing/phones/coffee from someone too cheap to pay wages. Not that I condone the sleazy Producer's who make all their shows with free crew - that's despicable, I always pay crew.

June 13, 2013

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Lance Bachelder

People are legally entitled to pay when they preform duties. This is similar to the 1099 vs w-2 situation where employers try to mis-classify w-2 employees as 1099 contractors so they don't have to pay 7.5% of their taxes. Fortunately the IRS will determine what is what even if the employer makes you sign a 1099 agreement.

June 13, 2013

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Larry Vaughn

I believe, Ed Burns said in an interview that he doesn't pay his crews (or locations). That's how he can get way with minuscule budgets. Will he be able to do that again? Will the aspiring filmmakers that frequent this site be able to make their own low/no budget films if they had to pay their crews, including relatives? What will be other costs? The lawsuit insurance? Prohibitively expensive and time consuming paperwork filing process? An IRS audit? Someone will get snagged.

June 13, 2013

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DLD

It probably won't affect no budget/micro budget films. They're so small that nobody will really care to go after them unless one of the crew brings the practice to light. If all the people agree to do free work, then even though it's illegal nobody will really care about it.

I like to think of it like putting copyrighted music in a short film on youtube. It's illegal, but unless somebody specifically points it out, nobody is really going to care about it because of how tiny it is.

June 13, 2013

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David

California has the "learner" exception, with a "learner" defined as (quote) "Employees during their first 160 hours of employment working in occupations in which they have no previous similar or related experience. A learner may be of any age". The "learner", however, still has to make 85% of the $8/hr Cal 2013 min wage and, while the Federal min wage law has some exception for businesses grossing less than $500K annually, most states do not. And a no/micro budget film would still fall under the minimum wage laws that the state has a right and obligation to enforce just like any other law on the books.

June 14, 2013

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DLD

I have worked on low and no budget films where everyone was working for free, and nobody really expected to ever see a dime from it.
That is not what I consider an internship, because most of the people working on these films are well trained professionals, trying to add another experience to their portfolios.

A good example is one of the first films I worked on (I was a total rookie but I helped as well as I could) was a short featuring Karoline Herfurth who also worked for free like everyone else. Maybe one of the reasons she was discovered by big productions like Perfume was this short film, so it paid off pretty well for her.

I also learned a lot from that short, it was the first time I saw an actual 16mm film production.

June 14, 2013

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Heiko

I was in an unpaid internship for a year. Being a father and a husband, it was taken in the hopes that it would lead to a job. I worked hard. I not only cleaned the office, or other menial jobs, but actually helped gaff and DP a couple of paid commercials with large budgets. On the production end, I was solid, well educated in everything technical on a shoot. When the time came to ask if I could be hired, the answer was no. Besides production, they were also a post house, and editing I can do, and even did sound mixing. I wasn't as well versed in After Effects, and when I spoke to the head honcho, he told me that in today's industry you need to be able to do everything. I had 4 out of 5 down. I left, because the gas, and expenses that came out of me working there was costing my family, so when should people be hired? I'm 27, and now, trying to get freelance jobs is very difficult. The city I live has a few production companies, and I get the same answer from all of them, nobody is looking to hire. The year of life that was unpaid was informational, but it didn't get me closer to being hired anywhere.

June 13, 2013

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Mason

The internship practice is totally slimy. Yes, I make little films and don't pay the crew (and I work on little films for little or no money), but I call it what it is, "unpaid work", and everyone becomes entitled to any profits in the one and a million chance that we make any. Plus, we usually shoot nights and accommodate most people's work schedules.

June 13, 2013

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Tom

It's not a simple decision to make, but a bad internship is one which is exploitative. However, IMO that doesn't mean the "employer" should see no benefit from the internship. That's the bit (point 4) I disagree with in the FLSA laws. Of course, it becomes more difficult to legally differentiate exploitative and non-exploitative internships without that.

Joe's section on "illegal internships which would be beneficial" I think has a problem. Namely, that if someone's doing such an important job, they should be paid. I would say that an intern, who's there primarily for their education, should shadow an important person instead. Not quite as good for the intern in one sense, but they're not getting exploited.

June 13, 2013

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Luke

To clarify - I don't think it's exploitative if the internship is based around education of the intern. If that involves doing real work for the company, then so be it. But if it's real work under a thin veil of education it's probably exploitative.

June 13, 2013

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Luke

I think some unpaid intern work doesn't work anybody, I have done it, if not for free, then for very little, and I profited from it.

However there are some companies that stretch the limits too far. A colleague told me once he had been working as an intern at a production company that made music videos. The only people they actually paid on a shoot was the director and the cameraman, everything else had to be done by interns and they were working like 24/7. Totally illegal work hours, no free time in between shoots, working two months in a row without on single free day etc.

This is where I draw the line, when companies start using interns as work slaves, instead of spending the money on professionals, like they should.

June 14, 2013

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Heiko

I've had several internships. Most were actually entry-level positions that were labeled as an internship. All the work...no pay. Every once in a while you get lucky and someone decides they have enough money to throw you a few bucks for gas. They get away with this because you don't bite the hand that feeds you. In this case, you are being fed the possibility of a future job or connections. Not to mention the cost of getting a lawyer and going to court several years is out of the question for most people. So, you take the abuse on the chin and hope that it all pays off in the end.

Having said that...I support pushing back and properly enforcing the law. But, I don't think this court ruling will drastically change the industry. For every person not willing to work for free...there are 10 others that will gladly step into your place. The sad reality is that these studios control the game...if you want a place at the table you have to play by their rules. The only way things will change is if the A-List of Hollywood speaks out against the exploitative practices and refuse to work unless the ways of doing things are changed.

June 14, 2013

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Kate

I'm shocked how many people are willing to work for free. It is right that you will learn the most by actually doing the job. But if you are doing it for free, you have just killed someone else job! It's as simple as that. If some one is willing to do it for free, why should I pay for it? The thing is, that this makes it actually harder to get a job, because there a no entry level jobs anymore!

If you are working on a no budget movie, no one will ever see money for it and you have fun doing it, then I think it's ok (than it's like a hobby). But if someone get's payed for the work you do and you don't get anything, than you are doing somthing wrong.

June 14, 2013

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Timm

+1

June 15, 2013

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Clayton Arnall

Its amazing these interns decided to pursue a short term gain in the industry rather than a long term career. Everyone knows how the game is played, you have to work for free before you can expect to make money. LEts see what kind of futures these individuals have now that they've essentially burned any bridge they've made thus far. Great reputation guys.

June 14, 2013

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Joe

what's the difference between not being paid to be in a working environment where you're exposed to much more real world working situations, and PAYING to to take theory based classes in impractical matters? someone will give you a job if they know you worked as an intern for a few months on a legit production and got a good reference, but they won't give a shit how good your essay for film theory 101 was.

internships/volunteer work helps to sort the wheat from the chaff. you've got to be pretty passionate/keen to want to take on a job that will be long hours, crappy work, and unpaid. if you're prepared to do that, then you'll also have the right mentality about what you want to get out of the job, who you need to keep an eye on whilst you're there, and how to figure out how to get paid on the next job.

i've seen too many people come into entry level positions who are hopeless, don't have any clear idea if they even want to be in the industry, and are frankly just wasting a spot that some hard working kid is just chomping at the bit to get into.

i've got a younger cousin who was moaning about feeling unappreciated and undervalued at her internship in a lawfirm not too long ago. i asked her what she actually expected to be doing. what experience did she have to justify giving her a role that requires legitimate responsibility. she didn't have an answer, and doesn't even know if that's an industry she wants to go into. it's an infuriatingly typical Gen-Y attitude.

June 14, 2013

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Or a profitable business could pay new employees while they're being trained. Like every other business on earth.

June 14, 2013

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André

Once you start paying people to do those roles, why would you bother taking a chance on an unknown variable like a college graduate, when you can take someone else who's got experience and proven to be capable in other areas, making them more versatile?

June 15, 2013

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Ben Howling

Oops, I posted this link in the JVC thread (sorry, could it be deleted?)

WaPo has a piece on interns.

http://www.washingtonpost.com/blogs/wonkblog/wp/2013/06/13/are-unpaid-in...

June 14, 2013

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DLD

Aside for the obvious stupidity of such laws (interning is more beneficial to the intern than the company. I would pay to be able to work with Paul Thomas Anderson), the hilarious stupidity is that any possible argument against legalizing unpaid internships can be refuted with "but they can quit when they want". If they feel they should start being paid, they could quit if they want. If they feel that they are being "exploited", they can quit if they want. If they don't like how the big-shots treat them, they can quit of they want. The only people that suffer are those that are prevented from awesome internships they would've gotten if they were legal. The people that don't want to work for free already have the option to simply not work for free in that case.

June 14, 2013

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Pianohero

I see there are very mixed opinions here. But the fact is, there is a law. In reality, it's the big companies that should know the law and know not to exploit interns. I just watched an interview with the guy that filed the lawsuit, and he didn't even realise he was being exploited until after the fact, when he read up on the laws. Basically, he found out he had the right to be paid. So he sued.

And really. there is another point to be made here. What of the people that can't afford to do free work? Should they be excluded from the industry for their poverty?

June 14, 2013

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If they don't have the skill set and training required to merit a wage, then they shouldn't get paid, it's not a charity, it's a market. By definition, if the market rules that someone isn't worthy of pay, they are not worthy of pay. If they were skilled and experienced enough, the companies would look at him and say "hey, we absolutely need this guy on our team. To secure him, we must pay him or else another company will pay him".

June 15, 2013

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Pianohero

I'm from Australia so it's different for us. But what would be the same no matter where you live is that it's up to the individual to decide if the internship is worthwhile. I, personally, would be willing to work for free if I got something substantial out of it. The whole "you scratch my back and I'll scratch yours" philosophy.

June 15, 2013

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TJ

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