Q&A with Jonathan Rector
Most internships warrant firms
pay at least minimum wage
Q: Tell us a little bit about the “Black Swan” intern case.
A: In 2011, two unpaid interns for Fox Searchlight Pictures Inc. brought a putative class action under the Fair Labor Standards Act (FLSA) and state labor laws alleging that their relationship with the company was that of employee-employer, and not trainee-trainer. The name of the case is Glatt, et al. v. Fox Searchlight Pictures, Inc., and it was filed in the U.S. District Court for the Southern District of New York. At issue in the case was whether the two interns, who worked on major motion pictures including “Black Swan” and “500 Days of Summer,” performed job duties that benefited the employer and were therefore entitled to at least minimum wage.
Q: How did the court rule?
A: The interns' duties largely consisted of obtaining documents for personnel files, picking up paychecks for co-workers, tracking and reconciling purchase orders and invoices and, of course, making copies. Importantly, Fox Searchlight admitted that if the interns were not performing these tasks for free, a paid employee would have been needed. Indeed, when one of the interns went from working five days a week to three days a week, the “Black Swan” crew “hired” another part-time intern to cover the remaining two days. Ultimately, the court ruled that the two unpaid interns were employees under the FLSA and state labor laws, and thus entitled to compensation.
Q: What factors must be met to be certain that the employment experience be considered an internship?
A: While the intern tasks described above may seem familiar, and in fact play out in offices throughout the United States, employers need to be aware of the expansive approach the FLSA takes to defining an employee for purposes of determining who is entitled to wages. As the court in Glatt noted, the FLSA defines the term “employ” broadly as including to “suffer or permit to work.” Under that definition, internships in the for-profit sector most often will be viewed as employment, unless the internship satisfies the “trainee” test.