You Have The Right To Be Paid: Death of the Unpaid Internship

Over the life of this blog I will probably spend a lot of time talking about lawsuits that affect the arts and entertainment world.  You may find some of them boring and some of them engaging.  But even if you decide that talking about pending legal cases isn't fun or interesting, I implore you to pay attention to these two, since they deal with a subject we can all get behind: getting paid for your work.

Last year, Eric Glatt and Alexander Footman, two interns who worked on the film Black Swan, sued the film's distributor Fox Searchlight, claiming that the company's unpaid internship program violated minimum wage and overtime laws.  They argue that they went unpaid, even though they were required to fill out I-9 forms, sign confidentiality agreements and were deemed "employees" covered under workers' compensation laws.  They're now trying to have the case turned into class action.  You can read about the case here and here.  Fox has since amended its program to begin paying interns $8.00 per hour.

Likewise, earlier this year, Diana Wang, a former intern of Harper's Bazaar Magazine filed a suit against the publisher, Hearst Inc., for failing to pay her despite working a full-time schedule (upwards of 55 hours per week).  That case has recently been granted class action status.  Both cases hope to be the death knell for the unpaid internship.

According to Glatt, he took the internship at Fox because he was trying to break into the film business and was told by numerous people that taking an unpaid internship was a necessary stepping stone to eventual paid work.  In fact, due to the Great Recession and persistent jobless claims, unpaid adult internships have been on the rise nationally and have spilled over into a number of industries, not just the glamorous ones like publishing and entertainment.  Glatt argues that unpaid internships are detrimental because "they disrupt the labor market for entry-level workers by forcing people at the beginning of their careers to work for no pay and suppressing wages for people who have been on the job for several years."

I've personally seen the effects Glatt is talking about and he's totally right: entry-level workers get paid in "experience" and mid-level worker pay rates drop to entry-level rates.  When I first started producing television, a producer's day rate was somewhere between $250-350 per day.  As unpaid internships proliferated, producer rates fell to the average day rate of a production assistant - $100-200 per day (for those not in the know, a production assistant is the lowest rung on the entertainment ladder.  The only thing lower than a production assistant is... you guessed it, an unpaid intern).  As a result, production assistant rates dropped and those positions often became filled with interns willing to do the job for free.

This is why I believe the outcome of these cases will be really important:  first, if Glatt, Footman, and Wang win, those victories may stabilize the markets for new and experienced workers alike by preventing drops in wages; second, companies will be forced to scale down their unpaid internship programs or take greater care to make sure they conform to the law (more on this in a bit); lastly, they will validate an area of law that is well established, but rarely gets enforced because so few people are willing to stand up against the companies that employ armies of unpaid interns.  Under the Fair Labor Standards Act (FSLA), internships are considered regular employment unless they meet these six criteria outlined by the Department of Labor:

  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... derives no immediate advantage from the activities of the intern...
  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.

If the internship meets all six criteria, then the employer is not responsible to pay the intern as a regular employee.  Of course, Glatt, Footman, and Wang are arguing that the criteria were not met and they should have been paid as regular employees. [Side note: as with many of the federal websites, the Department of Labor is a very useful resource for people who want to know if their employer is violating their rights].

I think there is some legitimacy to unpaid internships if there is an actual educational component; mostly as a real-world training tableau for students.  During my first year in Los Angeles, I took 7 unpaid internships.  Some of them were beneficial and I learned a lot.  I was taught how to edit, direct, and produce (sometimes just by watching, but sometimes I was lucky enough to have a mentor who taught me).  More often than not, however, the internships were a flimsy pretext for free labor.  Often, I was relegated to picking up coffee and taking lunch orders.  I frequently used my car to make deliveries and was compensated neither for the miles I drove nor the gasoline I expended.  I once spent an entire month at a Venice-based editing studio and not a single person there learned my name (they kept calling me Marcus for some reason).  I even worked unpaid on a decent-sized film for 96 straight hours without a break.  I did all this in the hopes of making a name and eventually getting paid work.  And while paying gigs did eventually come, there's no reason I had to accept unpaid work to get there.

In the coming months, I'll be working on a project called "The Artist's Bill of Rights," a resource for artists to learn their rights. I don't mind spoiling the First Amendment which is, in my opinion, the most important:

YOU HAVE THE RIGHT TO BE PAID

After all, as an artist, your work is your livelihood, and being paid for your work is a statement about your worth to yourself and to the project.  Directors, producers, and publishers don't work for free; neither should you.  But if the circumstances are right and you are willing to give away your work, you should know exactly what you're getting in return.  Most young artists will take an unpaid internship at one point in their careers and if they do, I hope the information I posted above will help them make smart decisions about what they can expect out of the internship.  And hopefully, if these cases find in favor of the plaintiffs, the days of interns fetching coffee and dry-cleaning without pay are numbered.

Greg Kanaan

The [Legal] Artist, Boston, MA, USA