“[Fox Searchlight Pictures] received the benefits of their unpaid work, which otherwise would have required paid employees.” – Judge William H. Pauley III on the suit brought against Fox by Eric Glatt ’91 (below) and Alex Footman ’09
In September 2011, we posted about two Wesleyan alumni, Alex Footman ’09 and Eric Glatt ’91 who brought a class-action lawsuit against Fox Searchlight Pictures. The two argued that, when they interned on the set of Black Swan, they performed menial tasks exclusively that had no educational value. By law, unpaid internships must provide some sort of educational experience and cannot simply be used to replace paid employees with unpaid labor. The two interns argued that they had not received the educational experience they should have gotten from the experience.
Just recently, Federal District Court Judge William H. Pauley III ruled that, as Fox Searchlight Pictures treated the workers as if they were regular paid employees and did not provide any sort of educational value to the internship, the interns should have been paid. The judge explained his logic to 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 performed low-level tasks not requiring specialised 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.
Although Fox has vowed to appeal the decision, officially stating, “We are very disappointed with the court’s rulings. We believe they are erroneous, and will seek to have them reversed,” this case could have a dramatic impact on the world of unpaid internships.
First of all, the judge rejected the “primary benefit test,” used by many companies with internships to determine whether the internship should be paid or not. This test consists in determining whether the intern or the company gains more; if the former, the intern is unpaid, and if the latter, the intern is paid. The judge threw this out, stating that the test is too subjective. Instead, he says that unpaid internships must follow the criteria laid out by the Department of Labor: unpaid internships must not directly advantage the employer, the work must be similar to vocational training given in an educational environment, the experience must be for the benefit of the intern, and the intern’s work must not displace that of regular employees. Notably, the “primary benefit test,” then, is only one part of the greater standard.
The judge also threw out arguments that interns need not be paid if they are receiving college credits or that they are “putting their foot in the door” of the industry by getting a line on their resumes:
Undoubtedly Mr. Glatt and Mr. Footman received some benefits from their internships, such as résumé listings, job references and an understanding of how a production office works. But those benefits were incidental to working in the office like any other employees and were not the result of internships intentionally structured to benefit them… Searchlight received the benefits of their unpaid work, which otherwise would have required paid employees.
Besides the fact that some of us may (unfortunately) end up in unpaid internships during the summer or after graduation for one reason or another (experience, lack of paid work, desire to work with a specific organization that can’t afford to pay), unpaid internships reinforce social hierarchies, which Steven Greenhouse ’73, the labor writer for the New York Times who has written all the articles related to the recent unpaid intern cases, mentioned in a blog post last year:
[C]ollege graduates with wealthy parents who can underwrite their living costs during their internships get a leg up because they get a head start with coveted employers, like film production companies, publishers, literary agencies and fashion houses. But college grads whose parents cannot support them say they often have to turn to an $8.50-an-hour job at McDonald’s or Target and cannot afford to take an unpaid internship.
Ben Doernberg ’13 agreed with this statement in a comment on our first post on Footman and Glatt’s case against Fox:
[U]npaid internships are evil because they exclude the vast majority of college students who can’t afford to work for free. I work at the Career Center, and it’s clear how unfair the situation is. Some students can afford to travel to New York or LA for an unpaid internship, others have to live at home AND make money.
Why on earth should important entry level opportunities in every field be reserved for those who are already coming from a privileged background? Companies that “pay” in college credit, in effect making students pay to work, are even worse.
The judge also certified a class action exploring the internships throughout Fox. If this goes through, Fox may be forced to do what PBS interviewer Charlie Rose’s production company had to do last year after losing a lawsuit brought by Lucy Bickerton ’08: pay back wages to 189 interns, amounting to about $1,100 each for $110 per week.
What impact could this have on the job – and internship – market? Will we see fewer companies take on unpaid interns out of fear of legal action? Will companies convert unpaid internships into paid internships? Will companies be forced to actually comply with Department of Labor regulations regarding their unpaid internships? Are you in an unpaid internship right now? Are you inspired to sue your boss? Sound off in the comments below!
Further Wesleyan Exposure in the NYT
Footman ’09 on Unpaid Internships, Labor Exploitation
Bickerton ’08 v. Rose: Another Intern Rises Up
NYT on Unpaid Internships and Their Discontents—After Graduation
NYT on Unpaid Internships:
The Unpaid Intern, Legal or Not
Interns, Unpaid by Studio, File Suit
The Uses and Misuses of Unpaid Internships
Jobs Few, Grads Flock to Unpaid Internships
Judge Rules That Movie Studio Should Have Been Paying Interns
Government, Not Interns, Should Enforce the Rules