A “black swan event” is one that comes as a surprise and has a significant effect.  An “intern” is often defined as a student or graduate undergoing some type of supervised training or work.  What is not included in the dictionary definition, however, is that they are–more often than not–unpaid.  And that sometimes they are worked extremely hard.  However, a recent federal court ruling may provide a glimmer of hope for the typical, overworked and underpaid intern, as two interns who worked on the film Black Swan won a case–on summary judgment, no less–against Fox Searchlight for working without pay on the film.

The two interns, Alex Footman and Eric Glatt, claimed [PDF] that Searchlight’s unpaid internship program violated overtime and minimum wage laws.  The lawsuit grew as plaintiffs who worked on other Fox Searchlight films joined.  The interns won after the judge determined that Searchlight was, in fact, the interns’ “employer” under New York labor laws as well as the Fair Labor Standards Act.  This was based  on Searchlight’s power to fire the production staff of the film, the close ties of the crew to Searchlight, and Searchlight’s close supervision of the work done for the film.  The judge also found support for his decision in the fact that the interns worked just like paid employees, providing immediate benefits to the company, performing low-level tasks that did not require specialized training, and receiving no educational or academic benefits.

Some might say this is a “black swan” event, but is it really?  It may seem surprising that interns could this pull off, since unpaid internships are extremely common and are often considered a rite of passage in joining a field.  It is also common knowledge that interns are expected to work extremely hard. But these facts also explain why the result in this case is not that surprising.  With so many interns out there working so hard for free, some argue that it is about time some of them tried to get paid–especially when their duties so closely mirror the responsibilities of employees.  Either way, this lawsuit may very well have a significant effect.  Other similarly situated interns might work up courage to try something similar.  In fact, as Warner Music has just found out, some already have: former intern Justin Henry sued for unpaid minimum and overtime wages.  It will be interesting to see what the future holds for interns, at least in the entertainment industry.  Perhaps the days of the overworked and underpaid intern are coming to an end.

 

John Lomascolo

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3 Responses to Unpaid Interns Sue Hollywood: A True ‘Black Swan’ Event?

  1. Erin Frankrone says:

    Interesting case. I wonder what implication this would have for government interns. The federal government “employs” myriad interns in every branch, and the dire straights of the budget crisis suggest Uncle Sam couldn’t pay them if he wanted to. If interns in the private and public sectors have to be paid, it’s unclear who wins in that situation. Clearly the employers lose a source of free, usually highly-educated, labor force. But the interns may lose, as well. Revealed preferences show that the interns are willing and able to forego pay for experience. This pattern suggests generally that there are educational or professional benefits to remaining internship positions, because if there were none then there is no incentive for the intern to stay in the position when they could perform similarly unskilled tasks for pay in another environment.

    Perhaps schools are the best enforcers of tolerable internship working conditions. If students receive credit for their work rather than pay, then school may be able to take on the responsibility of ensuring that inters still receive the experiential benefits of internships without facing illegal employment law violations.

  2. J.P. Urban says:

    My question is what exactly will the interpretation of “mirror the responsibilities of employees” be? Couldn’t a way around this type of legal liability for companies be to have completely separate responsibilities for interns that do not closely correlate to those responsibilities held by paid employees? That way, an intern would not be seen as an unpaid worker but would indeed just be an intern.

    If, instead, unpaid internships in general were somehow outlawed–as many unpaid interns would desire–I think a cascade of negative side effects would ensue. The pay rates of paid employees would likely decrease, as would the number of employees in more highly paid positions.

    We’ll have to see.

  3. Mary Fletcher King says:

    Another argument for paying interns is that it helps to prevent further separation of the “have” and “have nots.” These unpaid movie interns were able to somehow afford housing and food without a salary from this position. I am sure many aspiring filmmakers would have loved to have had this opportunity and to have been able to put it on their resumes. But, they knew it was not feasible as they needed to accept a paying job to provide for themselves. My local newspaper interviewed several companies that said that when they go to hire people for permanent positions, they first look to their current crop of unpaid summer interns. Again, those students who need to work paid jobs to afford tuition, food, etc. are at a disadvantage–how can they get their foot in the door in their dream field if they cannot afford this unpaid rite of passage to joining the field? Paying interns would help to level the playing field and help to ensure that those students securing these temporary positions are those who are qualified and interested in the work rather than just those who can afford to work for free.